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TITLE 40 SOCIAL SERVICES AND ASSISTANCE PART 1 HEALTH AND HUMAN SERVICES COMMISSION CHAPTER 90 INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH

AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS

§90.3. Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise. Individual subchapters may have definitions that are specific to the subchapter.

Actual harm – a negative outcome that compromises a resident’s physical, mental, or emotional well-being.

(1) Addition--The addition of floor space to a facility.

(2) Administrator--The administrator of a facility.

(3) Administration of medication--Removing a unit or dose of medication from a previously dispensed, properly labeled container; verifying the medication with the medication order; giving the proper medication in the proper dosage to the proper resident at the proper time by the proper administration route; and recording the time of administration and dosage administered.

(4) Advanced practice nurse--A person licensed to practice professional nursing in accordance with Texas Occupations Code, Chapter 301, and authorized by the Texas Board of Nursing to practice as an advanced practice nurse.

(5) Applicant--A person applying for a license under Texas Health and Safety Code, Chapter 252.

(6) APA--The Administrative Procedure Act, Texas Government Code, Chapter 2001.

(7) Attendant personnel--All persons who are responsible for direct and non-nursing services to residents of a facility. (Non-attendant personnel are all persons who are not responsible for direct personal services to residents.) Attendant personnel come within the categories of: administration, dietitians, medical records, activities, housekeeping, laundry, and maintenance.

(8) Behavioral emergency--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;

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

(C) is not addressed in a behavior therapy program; and

(D) does not occur during a medical or dental procedure.

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

(10) Centers for Medicare and Medicaid Services (CMS)--The federal agency that provides funding and oversight for the Medicare and Medicaid programs. CMS was formerly known as the Health Care Financing Administration (HCFA).

(11) Change of ownership--A change of 50 percent or more in the ownership of the business organization that is licensed to operate the facility, or a change in the federal taxpayer identification number.

(12) Controlled substance--A drug, substance, or immediate precursor as defined in the Texas Controlled Substance Act, Health and Safety Code, Chapter 481, as amended, or the Federal Controlled Substance Act of 1970, Public Law 91-513, as amended.

(13) Controlling person of an applicant, license holder, or facility--A person who, acting alone or with others, has the ability to directly or indirectly influence or direct the management, expenditure of money, or policies of an applicant or license holder or of a facility owned by an applicant or license holder.

(A) The term includes:

(i) a person who owns at least 5 percent interest in the applicant or license holder;

(ii) a spouse of the applicant or license holder;

(iii) an officer or director, if the applicant or license holder is a corporation;

(iv) a partner, if the applicant or license holder is a partnership;

(v) a trustee or trust manager, if the applicant or license holder is a trust;

(vi) a person that operates or contracts with others to operate the facility;

(vii) a person who, because of a personal, familial, or other relationship is in a position of actual control or authority over the facility, without regard to whether the person is formally named as an owner, manager, director, officer, provider, consultant, contractor, or employee of the facility; and

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(viii) a person who would be a controlling person of an entity described in clauses (i) - (vii) of this subparagraph, if that entity were the applicant or license holder.

(B) The term does not include an employee, lender, secured creditor, or other person who does not exercise formal or actual influence or control over the operation of a facility.

(14) DADS--The Department of Aging and Disability Services.

(15) Dangerous drug--Any drug as defined in the Texas Dangerous Drug Act, Health and Safety Code, Chapter 483.

(16) Department--The Department of Aging and Disability Services.

(17) Designee--A state agency or entity with which DADS HHSC contracts to perform specific, identified duties related to the fulfillment of a responsibility prescribed by this chapter.

(18) Drug (also referred to as medication)--A drug is:

(A) any substance recognized as a drug in the official United States Pharmacopeia, official Homeopathic Pharmacopeia 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 man;

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

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

(19) Establishment--A place of business or a place where business is conducted which includes staff, fixtures, and property.

(20) Facility--A facility serving persons with an intellectual disability or related conditions licensed under this chapter as described in §90.2 of this chapter (relating to Scope) and required to be licensed under the Health and Safety Code, Chapter 252, or the entity that operates such a facility; or, in Subchapters C, D, and F of this chapter, a program provider that must comply with those subchapters in accordance with §9.212 of this title (relating to Non-licensed Providers Meeting Licensure Standards).

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

(22) Health care professional--A person licensed, certified, or otherwise authorized to

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administer health care, for profit or otherwise. The term includes a physician, licensed nurse, physician assistant, podiatrist, dentist, physical therapist, speech therapist, and occupational therapist.

(23) Hearing--A contested case hearing held in accordance with the Administrative Procedure Act, Government Code, Chapter 2001, and the formal hearing procedures in 1 TAC Chapter 357, Subchapter I.

(XX) HHSC – the Texas Health and Human Services Commission.

(XX) Immediate threat to the health or safety of a resident – a situation that causes, or is likely to cause, serious injury, harm, or impairment to or the death of a resident.

(24) Immediate and serious threat--A situation in which there is a high probability that serious harm or injury to residents could occur at any time or has already occurred and may occur again if residents are not protected effectively from the harm or if the threat is not removed.

(25) Immediate jeopardy to health and safety--A situation in which immediate corrective action is necessary because the facility's noncompliance with one or more requirements has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident receiving care in the facility.

(26) Incident--An unusual or abnormal event or occurrence in, at, or affecting the facility or the residents of the facility.

(27) Inspection--Any on-site visit to or survey of a facility by DADS HHSC for the purpose of inspection of care, licensing, monitoring, complaint investigation, architectural review, or similar purpose.

(28) IPP--Individual program plan. A plan developed by the interdisciplinary team of a facility resident that identifies the resident's training, treatment, and habilitation needs, and describes programs and services to meet those needs.

(XX) Isolated – One or a very limited number of residents are affected and a very limited number of staff are involved, or the situation has occurred only occasionally or in a very limited number of locations.

(29) Large facility--Facilities with 17 or more resident beds.

(30) Legal guardian--A person who is appointed guardian under §693 of the Probate Code.

(31) Legally authorized representative--A person authorized by law to act on behalf of a person with regard to a matter described in this chapter, and may include a parent, guardian, or managing conservator of a minor, or the guardian of an adult.

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(32) License--Approval from DADS HHSC to establish or operate a facility.

(33) License holder--A person who holds a license to operate a facility.

(34) Licensed nurse--A licensed vocational nurse, registered nurse, or advanced practice nurse.

(35) Life Safety Code (also referred to as the Code or NFPA 101)--The Code for Safety to Life from Fire in Buildings and Structures, Standard 101, of the National Fire Protection Association (NFPA).

(36) Life safety features--Fire safety components required by the Life Safety Code such as building construction, fire alarm systems, smoke detection systems, interior finishes, sizes and thicknesses of doors, exits, emergency electrical systems, sprinkler systems, etc.

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

(38) Local health authority--The physician having local jurisdiction to administer state and local laws or ordinances relating to public health, as described in the Texas Health and Safety Code, §§121.021 - 121.025.

(39) LVN--Licensed vocational nurse. A person licensed to practice vocational nursing in accordance with Texas Occupations Code, Chapter 301.

(40) 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 shall not include contracts solely for maintenance, laundry, or food services.

(41) Metered dose inhaler--A device that delivers a measured amount of medication as a mist that can be inhaled.

(42) Oral medication--Medication administered by way or through the mouth and does not include sublingual or buccal.

(XX) Pattern of violation – means repeated, but not but not widespread in scope, failures of a facility to comply with Texas Health and Safety Code, Chapter 252, or a rule, standard or order adopted under Chapter 252 that:

(A) result in a violation; and

(B) are found throughout the services provided by the facility or that affect or involve the same residents or facility employees.

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(43) Person--An individual, firm, partnership, corporation, association, or joint stock company, and any legal successor of those entities.

(44) Personal 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.

(45) Qualified mental retardation professional (QMRP)--A person with at least a bachelor's degree who has at least one year of experience working with persons with an intellectual disability or related conditions.

(46) Quality-of-care monitor--A registered nurse, pharmacist, or dietitian, employed by DADS HHSC, who is trained and experienced in long-term care regulations, standards of practice in long-term care, and evaluation of resident care and functions independently of DADS HHSC Long Term Care Regulatory Services Division.

(47) Registered nurse--A person licensed to practice professional nursing in accordance with Texas Occupations Code, Chapter 301.

(48) Remodeling--The construction, removal, or relocation of walls and partitions, or construction of foundations, floors, or ceiling-roof assemblies, including expanding of safety systems (i.e., sprinkler systems, fire alarm systems), that will change the existing plan and use areas of the facility.

(49) Renovation--The restoration to a former better state by cleaning, repairing, or rebuilding, e.g., routine maintenance, repairs, equipment replacement, painting.

(50) Restraint--A manual method, or a physical or mechanical device, material, or equipment attached or adjacent to the resident's body that the resident cannot remove easily, that restricts freedom of movement or normal access to the resident's body. This term includes a personal hold.

(XX) Resident – A person who resides in a facility.

(51) Seclusion--The involuntary separation of a resident away from other residents and the placement of the resident alone in an area from which the resident is prevented from leaving.

(52) Small facilities--Facilities with 16 or fewer resident beds.

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(53) Specialized staff--Personnel with expertise in developmental disabilities.

(54) Standards--The minimum conditions, requirements, and criteria with which a facility will have to comply to be licensed under this chapter.

(55) Topical medication--Medication applied to the skin but does not include medication administered in the eyes.

(56) Universal precautions--The use of barrier precautions by facility personnel to prevent direct contact with blood or other body fluids that are visibly contaminated with blood.

(57) 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.

(XX)Violation – Any noncompliance with Texas Health and Safety Code, Chapter 252, or any rule under this chapter.

(58) Well-recognized church or religious denomination--An organization which has been granted a tax-exempt status as a religious association from the state or federal government.

(XX) Widespread in scope – a violation of Texas Health and Safety Code, Chapter 252, or a rule, standard, or order adopted under Chapter 252 that:

(A) is pervasive throughout the services provided by the facility; or

(B) that affects or has the potential to affect a large portion of or all of the residents of the facility.

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TITLE 40 SOCIAL SERVICES AND ASSISTANCE PART 1 HEALTH AND HUMAN SERVICES COMMISSION CHAPTER 90 INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS

§90.236. Administrative Penalties.

(a) DADSHHSC may an assess an administrative penalties penalty against a person who license holder if:

(1) the license holder violates Texas Health and Safety Code, Chapter 252, or any rule, standard, or order adopted or a license issued under such chapter; and the violation creates a potential for actual harm, results in actual harm, or poses an immediate threat to the health or safety of a resident;

(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 documentation submitted to DADS HHSC in support of the application; or

(B) with respect to a matter under investigation by DADSHHSC;

(3) refuses to allow a representative of DADSHHSC to inspect:

(A) a book, record, or file required to be maintained by the person; or

(B) any portion of the premises of a facility;

(4) willfully interferes with the work of a representative of DADS HHSC or the enforcement of Texas Health and Safety Code, Chapter 252;

(5) willfully interferes with a representative of DADS HHSC preserving evidence of a violation of Texas Health and Safety Code, Chapter 252, or a rule, standard, or order adopted or license issued under such chapter;

(6) fails to pay a penalty assessed by DADS HHSC under Texas Health and Safety Code, Chapter 252, not later than the 10th day after the date the assessment of the penalty becomes final;

(7) fails to submit a plan of correction to DADS HHSC within 10 working days after receiving the final statement of licensing violations; or

(8) fails to notify DADS HHSC of a change in ownership before the effective date of that change of ownership.

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(b) Definitions:

(1) For purposes of this section, a "violation" is defined as any noncompliance with Texas Health and Safety Code, Chapter 252, or any rule under this chapter.

(2) For purposes of this section, "immediate and serious threat" means a situation in which there is a high probability that serious harm or injury to residents could occur at any time or has already occurred and may occur again if individuals are not protected effectively from the harm or if the threat is not removed. "Immediate and serious threat" is described in Appendix Q of the State Operations Manual, "Guidelines for Determining Immediate and Serious Threat to Patient Health and Safety."

(3) For the purposes of this section, "serious harm" is any condition or situation that could result in severe, temporary or permanent injury, or death, or harm to the mental or physical condition of an individual.

(4) For the purposes of this section, "previous history" means any violation that resulted in the recommendation of an administrative penalty documented against a facility in the 24-month period immediately preceding the citation of the violation.

(c) Failure to meet the requirements of §90.42(c) of this chapter (relating to Standards for Facilities Serving Persons with Mental Retardation or Related Conditions) is a cause to assess an administrative penalty.

(d) When a violation cited by DADS is determined to be within the scope, severity, and description of the penalty schedules as stated in subsection (m) of this section, the violation may be cause for assessment of a penalty as described in this section and as listed in subsection (m) of this section. In determining if a violation described in subsection (a)(1) of this section warrants an administrative penalty, HHCS considerswhich violations warrant penalties, DADS will consider:

(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation and

(2) the hazard of the violation to the health and safety of residents the clients; and

(3)(2) whether the affected facility had identified the violation as part of its internal quality assurance process and had made appropriate progress on correction.

(e) 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.

(f) An offense is defined as a sum of the licensure violations found during an inspection. The first offense violations carry the penalty shown in the "first offense" column under subsections (l) and (m) of this section. The second offense violations carry the penalty shown in the "second

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offense" column. The third offense violations carry the penalty shown in the "third offense" column. An offense is counted against the facility even if the facility corrected the prior violation and an administrative penalty was not actually imposed.

(g) The progression of offenses described in subsection (f) of this section applies to facilities regardless of license renewals; however, when a facility has not had an offense for a period of two years, the facility's next offense will be in the "first offense" column under subsections (l) and (m) of this section. A suspension of a license and subsequent reinstatement does not interrupt the progression.

(hc) The An administrative penalty begins on the date DADS HHSC first establishesd that the violation deficiency existsed. Administrative penalties will not be imposed on minor infractions. Penalties will be imposed on a per diem basis for those infractions in the administrative penalty schedule, as outlined under subsection (m) of the section. If DADS HHSC determines that a violation has occurred that will result in an administrative penalty, the penalty for a facility with fewer than 60 beds will be not less than $100 or more than $1,000 for each violation. The penalty for a facility with 60 beds or more will not be less than $100 or more than $5,000 for each violation. The total amount of the penalty assessed for a violation continuing or occurring on separate days under this subsection may not exceed $5,000 for a facility with fewer than 60 beds or $25,000 for a facility with 60 beds or more.

(di) A per diem penalty assessed in accordance with subsection (a)(1) of this section ceases on the date a violation is has been corrected. HHSC considers a violation corrected if the license holder, and the facility:

(1) notifies DADS HHSC in writing that the violation has been corrected; and

(2) states provides the date of the correction in the notification; and

(3) maintains evidences later that the violation was corrected on the date in the notification.

(e) An administrative penalty assessed in accordance with subsection (a)(1) of this section is determined based on the scope and severity of the violation, in accordance with the following figures.

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ICF/IID LARGE (59+ Beds)

Isolated Pattern Widespread

Note: To assist in reading the administrative penalty table, the following example is provided: a facility that is cited for a violation that constitutes an immediate threat to the health or safety of a resident and is widespread in scope will receive a penalty amount that falls within the range reflected in box “L” on the Scope and Severity chart.

Immediate Threat

$2000 - 3000 J

$3000 - 4000 K

$4000 - 5000 L

Actual Harm

$500 - 1000 G

$1000 - 1500 H

$1500 - 2000 I

Potential for Actual Harm

$200 - 300 D

$300 - 400 E

$400 - 500 F

Potential for Minimum Harm

$0 A

$0 B

$0 C

S C O P E

S E V E R I T Y

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ICF/IID SMALL (Fewer than 59 beds)

Immediate Threat

$700 - 800 J

$800 - 900 K

$900 - 1000 L

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Isolated Pattern Widespread

Note: To assist in reading the administrative penalty table, the following example is provided: a facility that is cited for a violation that constitutes an immediate threat to the health or safety of a resident and is widespread in scope will receive a penalty amount that falls within the range reflected in box “L” in the Scope and Severity table.

(f) An administrative penalty assessed in accordance with subsection (a)(2), (3), (4), (5), (6), (7) or (8) of this section is in the following amount:

(1) for a facility with a licensed capacity of 59 or less: (A) $500 for the first violation of the paragraph; (B) $750 for the second violation of the same paragraph; and (C) $1000 for the third violation of the same paragraph; and

(2) for a facility with a license capacity of 60 or more: (A) $500 for the first violation of the paragraph; (B) $3500 for the second violation of the same paragraph; and (C) $5000 for the third violation of the same paragraph.

Actual Harm

$300 - 400 G

$400 - 500 H

$500 - 600 I

Potential for Actual Harm

$100 - 150 D

$150 -200 E

$200 - 300 F

Potential For Minimum Harm

$0 A

$0 B

$0 C

S E V E R I T Y

S C O P E

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(gj) If DADS HHSC determines that a violation has occurred and that an administrative penalty is proposed, DADS HHSC notifies the license holder gives written notice of the proposal to assess an administrative penalty. The notification includes notice will include:

(1) a brief summary of the alleged violation;

(2) a statement of the amount of the proposed penalty based on the factors listed in subsections (c), (l) and (m) of this section; and

(3) a statement of the license holder’s person’s right to request a hearing on the occurrence of the violation, the amount of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.

(hk) A license holder facility for which an administrative penalty has been proposed may file a request for a hearing with the Health and Human Services Commission. To receive a hearing, a license holder must request a hearing in accordance with 1 TAC §357.484 (relating to Requests for a Hearing) except, as provided by Texas Health and Safety Code, §252.066, the license holder facility must make a written request for a hearing within 20 calendar days after the date on which the license holder facility receives written notice of the administrative penalty. A hearing requested under this section is governed by 1 TAC Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act).

(l) Assessments for violations warranting administrative penalties for licensed facilities, for which there is no right to correct prior to administrative penalty assessment are as follows:

Figure: 40 TAC §90.236(l)

PER DIEM PENALTIES FOR FACILITIES SERVING PERSONS WITH MENTAL RETARDATION AND/OR RELATED CONDITIONS

DESCRIPTION OF VIOLATION SIZE OF FACILITY

FIRST OFFENSE

(1) No Right to Correct

SECOND OFFENSE

(2) No Right

to Correct

THIRD OFFENSE

(3) No Right

to Correct

A. A violation that DADS determines has resulted in an outcome described in §90.240(b)(1)-(3) of this subchapter (relating to Right to Correct)

1. A violation that DADS determines has resulted in serious harm to or death of a resident.

59 beds or less

$1000 $1000 $1000

2. A violation that DADS determines has resulted in serious harm to or death of a resident.

60 or more beds

$5000 $5000 $5000

3. A violation that DADS determines constitutes a serious threat to the health and safety of a resident.

59 beds or less

$1000 $1000 $1000

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4. A violation that DADS determines constitutes a serious threat to the health and safety of a resident.

60 or more beds

$5000 $5000 $5000

5. A violation that DADS determines substantially limits the facility’s capacity to provide care.

59 beds or less

$1000 $1000 $1000

6. A violation that DADS determines substantially limits the facility’s capacity to provide care.

60 or more beds

$5000 $5000 $5000

B. Actions described in subsection (a)(2)-(8) of this section (relating to Administrative Penalties)

1. Making a false statement that the person knows or should know is false, of a material fact on an application for issuance or renewal of a license or in documentation submitted to DADS in support of the application.

59 beds or less

$500 $750 $1000

2. Making a false statement that the person knows or should know is false, of a material fact on an application for issuance or renewal of a license or in documentation submitted to DADS in support of the application.

60 or more beds

$500 $3500 $5000

3. Making a false statement that the person knows or should know is false, of a material fact with respect to a matter under investigation by DADS.

59 beds or less

$500 $750 $1000

4. Making a false statement that the person knows or should know is false, of a material fact with respect to a matter under investigation by DADS.

60 or more beds

$500 $3500 $5000

5. Refusing to allow a representative of DADS to inspect a book, record, or file required to be maintained by the person.

59 beds or less

$500 $750 $1000

6. Refusing to allow a representative of DADS to inspect a book, record, or file required to be maintained by the person.

60 or more beds

$500 $3500 $5000

7. Refusing to allow a representative of DADS to inspect any portion of the premises a facility.

59 beds or less

$500 $750 $1000

8. Refusing to allow a representative of DADS to inspect any portion of the premises a facility.

60 or more beds

$500 $3500 $5000

9. Willfully interfering with the work of a representative of DADS or the enforcement of Texas Health and Safety Code, Chapter 252.

59 beds or less

$500 $750 $1000

10. Willfully interfering with the work of a representative of DADS or the enforcement of Texas Health and Safety Code, Chapter 252.

60 or more beds

$500 $3500 $5000

11. Willfully interfering with a representative of DADS preserving evidence of a violation of Texas Health and Safety Code, Chapter 252, or a rule, standard, or order adopted or license issued under that chapter.

59 beds or less

$500 $750 $1000

12. Willfully interfering with a representative of DADS preserving evidence of a violation of Texas Health and Safety Code, Chapter 252, or a rule, standard, or order adopted or license issued under that chapter.

60 or more beds

$500 $3500 $5000

13. Failing to pay a penalty assessed by DADS under Texas Health and Safety Code, Chapter 252, not later than the 10th

59 beds or less

$500 $750 $1000

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day after the date the assessment of the penalty becomes final.

14. Failing to pay a penalty assessed by DADS under Texas Health and Safety Code, Chapter 252, not later than the 10th day after the date the assessment of the penalty becomes final.

60 or more beds

$500 $3500 $5000

15. Failing to submit a plan of correction to DADS within 10 working days after receiving the final statement of licensing violations.

59 beds or less

$500 $750 $1000

16. Failing to submit a plan of correction to DADS within 10 working days after receiving the final statement of licensing violations.

60 or more beds

$500 $3500 $5000

17. Failing to notify DADS of a change in ownership before the effective date of that change of ownership.

59 beds or less

$500 $750 $1000

18. Failing to notify DADS of a change in ownership before the effective date of that change of ownership.

60 or more beds

$500 $3500 $5000

(m) Assessments for violations warranting administrative penalties for licensed facilities for which there is a right to correct prior to administrative penalty assessment are as follows:

Figure: 40 TAC §90.236(m)

PER DIEM PENALTIES FOR FACILITIES SERVING PERSONS WITH MENTAL RETARDATION AND/OR RELATED CONDITIONS

DESCRIPTION OF CONDITIONS AND

ELEMENTS OF CONDITIONS

SIZE OF FACILITY

FIRST OFFENSE

(1) With

Correction

FIRST OFFENSE

(1) Without

Correction

SECOND OFFENSE

(2) With

Correction

SECOND OFFENSE

(2) Without

Correction

THIRD OFFENSE

(3) With

Correction

THIRD OFFENSE

(3) Without

Correction A. Failure to maintain requirements in accordance with the National Fire Protection Association Life Safety Code. Assessment of administrative penalties in these areas are determined by Life Safety Code surveyors. Severity and scope: A violation of numbers 1, 2, 3 and 4 compromises the fire safety design of the facility. Number 5 has different penalties for isolated incidents as opposed to a pattern of problems. An isolated instance would be 1 fire

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extinguisher unavailable at a required location. A pattern would be multiple extinguishers not in place or repeated incidents of a missing fire extinguisher 1. Required fire sprinkler system is not functioning, or system water supply is turned off.

60 or more beds

$0

$500

$0 $3500 $0 $5000

2. Required fire sprinkler system is not functioning in total or in the majority of components.

60 or more beds

$0 $500 $0 $3500 $0 $5000

3.The generator will not start automatically within the required time period or will not transfer and carry load; or emergency battery system does not illuminate or maintain required illumination for the required time.

60 or more beds

$0 $500 $0 $3500 $0 $5000

4. Doors in required smoke barrier walls, or in required fire walls, will not close as required.

60 or more beds

$0 $500 $0 $3500 $0 $5000

5. Portable fire extinguishers are not available at required locations.

60 or more beds

$0 Isolated $350

Pattern $500

$0 $3500 $0 $5000

A. Failure to maintain requirements in accordance with the National Fire Protection Association Life Safety Code. Assessment of administrative penalties in these areas are determined by Life Safety Code surveyors. Severity and scope: A violation of numbers 1, 2, 3 and 4 compromises the fire safety design of the facility.

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Number 5 has different penalties for isolated incidents as opposed to a pattern of problems. An isolated incident would be one fire extinguisher unavailable at a required location. A pattern would be multiple extinguishers being out of place. 6. Required fire sprinkler system is not functioning, or system water supply is turned off.

59 beds or less

$0 $100 $0 $750 $0 $1000

7. Required fire sprinkler system is not functioning in total or in the majority of components.

59 beds or less

$0 $100 $0 $750 $0 $1000

8. The generator will not start automatically within the required time period or will not transfer and carry load; or emergency battery system does not illuminate or maintain required illumination for the required time.

16 beds or less

NA NA NA NA NA NA

17-59 beds

$0 $100 $0 $750 $0 $1000

9. Doors in required smoke barrier walls, or in required fire walls, will not close as required.

59 beds or less

$0 $100 $0 $750 $0 $1000

10. Portable fire extinguishers are not available at required locations.

59 beds or less

$0 Isolated $100

Pattern $200

$0 $750 $0 $1000

DESCRIPTION OF CONDITIONS AND

ELEMENTS OF CONDITIONS

SIZE OF FACILITY

FIRST OFFENSE

(1) With

Correction

FIRST OFFENSE

(1) Without

Correction

SECOND OFFENSE

(2) With

Correction

SECOND OFFENSE

(2) Without

Correction

THIRD OFFENSE

(3) With

Correction

THIRD OFFENSE

(3) Without

Correction Isolated

Pattern

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B. Failure to provide tube feeding/syringe feedings in accordance with physician's orders and/or established feeding administration procedures. These areas are requirements of Licensing Standards for ICFMR/RC Facilities, §90.42(e)(6). Assessment of administrative penalties in these areas must result from licensure deficiencies as reflected on Licensing Inspection report, Form 3724. Additionally, for an administrative penalty to be assessed for violation of B.2,. licensure violation (federal standard W368) must be cited on the Health Care Financing Administration Form 2567, Statement of Deficiencies, resulting from a citation for noncompliance with licensure rules based on this standard. Scope and severity: There are different penalties for isolated incidents as opposed to patterns of problems. An isolated incident affects one individual one time. Multiple incidents that affect one or more individuals constitute a pattern of problems.

1. Tube feeding is not administered by licensed personnel.

59 beds or less

$0 $100 $200 $0 $750 $0 $1000

60 beds or more

$0 $200 $300 $0 $3500 $0 $5000

2. The quality and/or quantity of the formula administered is not as ordered by the physician

59 beds or less

$0 $100 $200 $0 $750 $0 $1000

60 beds or more

$0 $400 $500 $0 $3500 $0 $5000

3. Improper technique is 59 beds or $0 $100 $200 $0 $750 $0 $1000

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used in feeding. less 60 beds or more

$0 $400 $500 $0 $3500 $0 $5000

DESCRIPTION OF CONDITIONS AND

ELEMENTS OF CONDITIONS

SIZE OF FACILITY

FIRST OFFENSE

(1) With

Correction

FIRST OFFENSE

(1) Without

Correction

SECOND OFFENSE

(2) With

Correction

SECOND OFFENSE

(2) Without

Correction

THIRD OFFENSE

(3) With

Correction

THIRD OFFENSE

(3) Without

Correction C. Compliance Principle 42 CFR §483.410 Governing Body. The Condition of Participation of Governing Body is met when the other Conditions of Participation are also met. Scope and severity: This condition not being met is always the result of a pattern of problems. The Condition of Participation is not met when:

59 beds or less

$0 $100 $0 $750 $0 $1000

60 or more beds

$0 $500 $0 $3500 $0 $5000

59 beds or less

$0 $100 $0 $750 $0 $1000

60 or more beds

$0 $500 $0 $3500 $0 $5000

One or more of the other seven Conditions of Participation are not met and the governing body had failed to take action that identifies and resolves systematic problems of a serious and recurrent nature; or

The facility has been denied any license or approval required by federal, state, or local law by the authority having jurisdiction for that law.

DESCRIPTION OF CONDITIONS AND

ELEMENTS OF CONDITIONS

SIZE OF FACILITY

FIRST OFFENSE

(1) With

Correction

FIRST OFFENSE

(1) Without

Correction

SECOND OFFENSE

(2) With

Correction

SECOND OFFENSE

(2) Without

Correction

THIRD OFFENSE

(3) With

Correction

THIRD OFFENSE

(3) Without

Correction Isolated

Pattern

D. Compliance Principle 42 CFR §483.420 Client Protections. The Condition of

59 beds or less

$0 $100 $200 $0 $750 $0 $1000

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Participation of Client Protections is met when individuals are free from abuse and neglect; individuals are free from unnecessary drugs and restraints; and individual freedoms are promoted (e.g., individuals have choice and opportunities in their money management, community involvement, interpersonal relationships, daily routines, etc.). Scope and severity: There are different penalties for isolated incidents as opposed to patterns of problems. An isolated incident affects one individual one time. Multiple incidents that affect one or more individuals constitute a pattern of problems. The Condition of Participation is not met when:

60 beds or more

$0 $500 $750 $0 $3500 $0 $5000

Individuals have been abused, neglected or otherwise mistreated and the facility has not taken steps to protect individuals and prevent reoccurrence; or

Individuals are subjected to the use of drugs or restraints without justification; or

Individual freedoms are denied or restricted without justification (e.g. systematic lack of privacy, of freedom of access to the community or to other individuals, in use of personal possessions and money, etc.).

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DESCRIPTION OF CONDITIONS AND

ELEMENTS OF CONDITIONS

SIZE OF FACILITY

FIRST OFFENSE

(1) With

Correction

FIRST OFFENSE

(1) Without

Correction

SECOND OFFENSE

(2) With

Correction

SECOND OFFENSE

(2) Without

Correction

THIRD OFFENSE

(3) With

Correction

THIRD OFFENSE

(3) Without

Correction E. Compliance Principle 42 CFR §483.430 Facility Staffing. The Condition of Participation of Facility Staffing is met when: the Condition of Participation of Active Treatment is met (i.e., there are sufficient numbers of competent, trained staff to provide active treatment): and the Condition of Participation of Client Protections is met (i.e., there are sufficient numbers of competent, trained staff to protect individual's health and safety). Scope and severity This condition being unmet is always the result of a pattern of problems. The Condition of Participation is not met when:

59 beds or less

$0

$200

$0

$750

$0

$1000

60 beds or more

$0

$200

$0

$3500

$0

$5000

The Condition of Participation of Active Treatment is not met and the lack of active treatment has resulted from insufficient numbers of staff or lack of trained, knowledgeable staff to design and carry out the individual's programs; or

The Condition of Participation of Client Protections has first been determined to be not met and the lack of client protection has resulted from insufficient numbers of competent, trained staff to protect the health and safety of individuals.

DESCRIPTION OF SIZE OF FIRST FIRST SECOND SECOND THIRD THIRD

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CONDITIONS AND ELEMENTS OF CONDITIONS

FACILITY OFFENSE (1)

With Correction

OFFENSE (1)

Without Correction

OFFENSE (2)

With Correction

OFFENSE (2)

Without Correction

OFFENSE (3)

With Correction

OFFENSE (3)

Without Correction

F. Compliance Principle 42 CFR §483.440 Active Treatment Services. The Condition of Participation of Active Treatment Services are met when individuals have increased skill and independence in functional life areas (i.e., communication, socialization, toileting, bathing, household tasks, use of community, etc.,) and in the presence of degenerating conditions, individual's functioning is maintained to the maximum extent possible; and Individuals receive continuous, competent training, supervision and support which promotes skills and independence; and Individuals need continuous, competent training supervision and support in order to function on a daily basis. Scope and severity: Not meeting the condition of participation of active treatment is always a pattern of problems and not an isolated incident. The Condition of Participation is not met when:

59 beds or less

$0 $200 $0 $750 $0 $1000

60 beds or more

$0 $200 $0 $3500 $0 $5000

Individual's functional abilities have decreased or have not improved and the facility has failed to identify barriers and implement a plan to maximize or overcome barriers; or

Individuals are not involved in activities which address their individualized priority needs; or

Individuals do not have opportunities to practice new or existing skills and to make

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choices in their daily routines; or Individuals are able to function independently without continuous training, supervision and support by the staff.

DESCRIPTION OF CONDITIONS AND

ELEMENTS OF CONDITIONS

SIZE OF FACILITY

FIRST OFFENSE

(1) With

Correction

FIRST OFFENSE (1)

Without Correction

SECOND OFFENSE

(2) With

Correction

SECOND OFFENSE

(2) Without

Correction

THIRD OFFENSE

(3) With

Correction

THIRD OFFENSE

(3) Without

Correction Isolated Pattern G. Compliance Principle 42 CFR §483.450 Client Behavior and Facility Practices. The Condition of Participation is met when: individual programs and activities regularly include use of positive techniques, teaching strategies and supports; efforts are made to reduce and eliminate use of restrictive techniques with positive results; and staff teach and reinforce appropriate behaviors such as communication skills, social skills, independence and choice-making skills, and leisure skills which serve as functional substitutes for inappropriate behaviors; and restrictive techniques are used only when warranted by the severity of the behavior, and result in desired behavioral outcomes. Scope and severity: There are different penalties for isolated incidents as opposed to patterns of problems. An isolated incident affects one individual one time.

59 beds or less

$0

$100

$200

$0

$750

$0

$1000

60 beds or more

$0

$500

$750

$0

$3500

$0

$5000

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Multiple incidents that affect one or more individuals constitute a pattern of problems. The Condition of Participation is not met when: Restrictive, intrusive techniques are used to manage or control behavior in lieu of positive teaching strategies; or

Individuals are physically or psychologically injured or harmed as a result of the use of restrictive interventions and the facility has failed to adequately monitor the use of the intervention; or

Restrictive interventions are used when they are not warranted or without first attempting less restrictive more positive measures.

DESCRIPTION OF CONDITIONS AND

ELEMENTS OF CONDITIONS

SIZE OF FACILITY

FIRST OFFENSE

(1) With

Correction

FIRST OFFENSE (1)

Without Correction

SECOND OFFENSE

(2) With

Correction

SECOND OFFENSE

(2) Without

Correction

THIRD OFFENSE

(3) With

Correction

THIRD OFFENSE

(3) Without

Correction Isolated

Pattern

H. Compliance Principle 42 CFR §483.460 Health Care Services. The Condition of Participation for Health Care Services is met when individuals receive preventive services and prompt treatment for acute and chronic health conditions; and the individual's health is improved or maintained unless the deterioration is due to a

59 beds or less

$0

$100

$200

$0

$750

$0

$1000

60 beds or more

$0

$500

$750

$0

$3500

$0

$5000

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documented clinical condition for which deterioration or lack of improvement is an accepted prognosis. Scope and severity: There are different penalties for isolated incidents as opposed to patterns of problems. An isolated incident is one incident for one person. A pattern exists when there is more than one person involved or multiple incidents for a single individual. The Condition of Participation is not met when: Individuals do not receive adequate health care monitoring and services, including appropriate and timely follow- up based upon their individualized need for service.

DESCRIPTION OF CONDITIONS AND

ELEMENTS OF CONDITIONS

SIZE OF FACILITY

FIRST OFFENSE

(1) With

Correction

FIRST OFFENSE (1)

Without Correction

SECOND OFFENSE

(2) With

Correction

SECOND OFFENSE

(2) Without

Correction

THIRD OFFENSE

(3) With

Correction

THIRD OFFENSE

(3) Without

Correction Isolated

Pattern

I. Compliance Principle 42 CFR §483.470 Physical Environment. The Condition of Participation of Physical Environment is met when the environment promotes the health and safety, independence and learning of the individuals. Scope and severity: There are different penalties for isolated incidents as

59 beds or less

$0 $100 $200 $0 $750 $0 $1000

60 beds or more

$0 $400 $500 $0 $3500 $0 $5000

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opposed to patterns of problems. An isolated incident affects one individual one time. Multiple incidents that affect one or more individuals constitute a pattern of problems. The Condition of Participation is not met when: Environmental conditions interfere with learning and independence to such an extent that the Condition of Participation for active treatment is not met; or

Individuals are at risk to health and safety; or

Poor infection control practices are observed and there is a high rate of infections or communicable diseases among the individuals residing in the facility.

DESCRIPTION OF CONDITIONS AND

ELEMENTS OF CONDITIONS

SIZE OF FACILITY

FIRST OFFENSE

(1) With

Correction

FIRST OFFENSE (1)

Without Correction

SECOND OFFENSE

(2) With

Correction

SECOND OFFENSE

(2) Without

Correction

THIRD OFFENSE

(3) With

Correction

THIRD OFFENSE

(3) Without

Correction Isolated Pattern J. Compliance Principle 42 CFR §483.480 Condition of Participation: Dietetic Services. The Condition of Participation of Dietary Services is met when: The individuals maintain body weights and lab levels considered acceptable for their age, height, body type and clinical condition or are receiving services and supports to assist them to do so; and

59 beds or less

$0 $100 $200 $0 $750 $0 $1000

60 beds or more

$0 $300 $400 $0 $3500 $0 $5000

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Individuals participate in normalized dining experiences appropriate to their functioning abilities (e.g.; using knives, family style meals. going to restaurants, etc.) and are being taught skills to do so. Scope and severity: There are different penalties for isolated incidents as opposed to patterns of problems. An isolated incident is an incident that affects one individual. Multiple incidents that affect one or more individuals constitute a pattern of problems. The Condition of Participation is not met when: Individuals experience excessive weight loss or gain, abnormal lab levels, or deterioration in health as a result of an inadequate diet; or

Individuals do not receive training and supports which enable them to eat as independently and in as normalized manner as possible.

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TITLE 40 SOCIAL SERVICES AND ASSISTANCE PART 1 HEALTH AND HUMAN SERVICES COMMISSION CHAPTER 90 INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS

§90.240. Right to Correct.

(a) Except as provided in subsection (b) of this section, before imposing an administrative penalty, DADS will provide HHSC gives a reasonable period of time, not less than 45 days, to correct a violation if a plan of correction is implemented. A facility may request a shorter period of time to correct the violation by submitting a specific written request for an early inspection to clear the violation. If, during the requested early inspection, DADS HHSC finds that the correction is not satisfactory, an administrative penalty may immediately be assessed from the first day of violation.

(b) DADS is not required to HHSC does not give a facility the right to correct a violation prior to assessing an administrative penalty if DADS HHSC determines that the violation:

(1) is has resulted a pattern of violation that results in serious actual harm to or death of a resident;

(2) is widespread in scope and results in actual harm;

(3) is widespread in scope, constitutes a potential for actual harm, and relates to:

(A) staff treatment of a resident, as described in 42 Code of Federal Regulations (CFR) 483.410, §§90.42 (e) and 90.212, 90.213 and 90.214 of this chapter;

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30

(B) active treatment, as described in 42 CFR §483.440;

(C) client behavior and facility practices, as described in 42 CFR §483.450 and §90.42(e) of this chapter;

(D) health care services, as described in 42 CFR §483.460;

(E) drug administration, as described in 42 CFR §483.460(k) and §90.42(e) and §90.43 of this chapter;

(F) infection control, as described in 42 CFR §483.470(l) ;

(G) food and nutrition services, as described in 42 CFR §483.480; or

(H) emergency preparedness and response, as described in 42 CFR §483.475 and §90.50 of this chapter;

(4) constitutes an immediate a serious threat to the health or safety of a resident;

(5) substantially limits the facility's capacity to provide care; or

(64) is described in §90.236(a)(2) - (8) of this subchapter (relating to Administrative Penalties).

(c) DADS HHSC may not assess an administrative penalty for a minor violation that HHSC gave the facility time to correct if the facility corrects the violation not later than the 46th day after the facility receives notice of the violation.

(d) If the facility reports to DADS HHSC that the violation has been corrected, DADS HHSC will inspects the facility correction or takes any other steps necessary to confirm that the violation has been corrected and notify notifies the facility that:

(1) the correction is satisfactory and a penalty is not assessed; or

(2) the correction is not satisfactory and a penalty is recommended.

(e) If the facility wishes to appeal the administrative penalty, the facility must file a notice to request a hearing on the violation or penalty no later than the 20th calendar day after the date on which the facility received the notice to pay an administrative penalty. is received.