| (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 §19.601(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 §19.2114 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
Cont'd... |
