HEALTH & SAFETY CODE
CHAPTER 142. HOME AND COMMUNITY SUPPORT SERVICES
SUBCHAPTER A. HOME AND COMMUNITY SUPPORT SERVICES LICENSE
§ 142.001. DEFINITIONS. In this chapter:
(1) "Administrative support site" means a facility or
site where a home and community support services agency performs
administrative and other support functions but does not provide
direct home health, hospice, or personal assistance services.
(2) "Alternate delivery site" means a facility or
site, including a residential unit or an inpatient unit:
(A) that is owned or operated by a hospice;
(B) that is not the hospice's principal place of
business;
(C) that is located in the geographical area
served by the hospice; and
(D) from which the hospice provides hospice
services.
(3) "Bereavement" means the process by which a
survivor of a deceased person mourns and experiences grief.
(4) "Bereavement services" means support services
offered to a family during bereavement.
(5) "Branch office" means a facility or site in the
geographical area served by a home and community support agency
where home health or personal assistance services are delivered or
active client records are maintained.
(6) "Certified agency" means a home and community
support services agency, or a portion of the agency, that:
(A) provides a home health service; and
(B) is certified by an official of the Department
of Health and Human Services as in compliance with conditions of
participation in Title XVIII, Social Security Act (42 U.S.C.
Section 1395 et seq.).
(7) "Certified home health services" means home health
services that are provided by a certified agency.
(8) "Chief financial officer" means an individual who
is responsible for supervising and managing all financial
activities for a home and community support services agency.
(9) "Controlling person" means a person who controls a
home and community support services agency or other person as
described by Section 142.0012.
(10) "Council" means the Home and Community Support
Services Advisory Council.
(11) "Counselor" means an individual qualified under
Medicare standards to provide counseling services, including
bereavement, dietary, spiritual, and other counseling services, to
both the client and the family.
(12) "Home and community support services agency"
means a person who provides home health, hospice, or personal
assistance services for pay or other consideration in a client's
residence, an independent living environment, or another
appropriate location.
(13) "Home health service" means the provision of one
or more of the following health services required by an individual
in a residence or independent living environment:
(A) nursing, including blood pressure monitoring
and diabetes treatment;
(B) physical, occupational, speech, or
respiratory therapy;
(C) medical social service;
(D) intravenous therapy;
(E) dialysis;
(F) service provided by unlicensed personnel
under the delegation or supervision of a licensed health
professional;
(G) the furnishing of medical equipment and
supplies, excluding drugs and medicines; or
(H) nutritional counseling.
(14) "Hospice" means a person licensed under this
chapter to provide hospice services, including a person who owns or
operates a residential unit or an inpatient unit.
(15) "Hospice services" means services, including
services provided by unlicensed personnel under the delegation of a
registered nurse or physical therapist, provided to a client or a
client's family as part of a coordinated program consistent with
the standards and rules adopted under this chapter. These services
include palliative care for terminally ill clients and support
services for clients and their families that:
(A) are available 24 hours a day, seven days a
week, during the last stages of illness, during death, and during
bereavement;
(B) are provided by a medically directed
interdisciplinary team; and
(C) may be provided in a home, nursing home,
residential unit, or inpatient unit according to need. These
services do not include inpatient care normally provided in a
licensed hospital to a terminally ill person who has not elected to
be a hospice client.
(16) "Inpatient unit" means a facility that provides a
continuum of medical or nursing care and other hospice services to
clients admitted into the unit and that is in compliance with:
(A) the conditions of participation for
inpatient units adopted under Title XVIII, Social Security Act (42
U.S.C. Section 1395 et seq.); and
(B) standards adopted under this chapter.
(17) "Independent living environment" means:
(A) a client's individual residence, which may
include a group home or foster home; or
(B) other settings where a client participates in
activities, including school, work, or church.
(18) "Interdisciplinary team" means a group of
individuals who work together in a coordinated manner to provide
hospice services and must include a physician, registered nurse,
social worker, and counselor.
(19) "Investigation" means an inspection or survey
conducted by a representative of the department to determine if a
licensee is in compliance with this chapter.
(20) "Palliative care" means intervention services
that focus primarily on the reduction or abatement of physical,
psychosocial, and spiritual symptoms of a terminal illness.
(21) "Person" means an individual, corporation, or
association.
(22) "Personal assistance service" means routine
ongoing care or services required by an individual in a residence or
independent living environment that enable the individual to engage
in the activities of daily living or to perform the physical
functions required for independent living, including respite
services. The term includes:
(A) personal care;
(B) health-related services performed under
circumstances that are defined as not constituting the practice of
professional nursing by the Board of Nurse Examiners through a
memorandum of understanding with the department in accordance with
Section 142.016; and
(C) health-related tasks provided by unlicensed
personnel under the delegation of a registered nurse or that a
registered nurse determines do not require delegation.
(22-a) "Personal care" means the provision of one or more of
the following services required by an individual in a residence or
independent living environment:
(A) bathing;
(B) dressing;
(C) grooming;
(D) feeding;
(E) exercising;
(F) toileting;
(G) positioning;
(H) assisting with self-administered
medications;
(I) routine hair and skin care; and
(J) transfer or ambulation.
(23) "Place of business" means an office of a home and
community support services agency that maintains client records or
directs home health, hospice, or personal assistance services. The
term does not include an administrative support site.
(24) "Residence" means a place where a person resides
and includes a home, a nursing home, a convalescent home, or a
residential unit.
(25) "Residential unit" means a facility that provides
living quarters and hospice services to clients admitted into the
unit and that is in compliance with standards adopted under this
chapter.
(26) "Respite services" means support options that are
provided temporarily for the purpose of relief for a primary
caregiver in providing care to individuals of all ages with
disabilities or at risk of abuse or neglect.
(27) "Social worker" means an individual licensed as a
social worker under Chapter 505, Occupations Code.
(28) "Support services" means social, spiritual, and
emotional care provided to a client and a client's family by a
hospice.
(29) "Terminal illness" means an illness for which
there is a limited prognosis if the illness runs its usual course.
(30) "Volunteer" means an individual who provides
assistance to a home and community support services agency without
compensation other than reimbursement for actual expenses.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended
by Acts 1991. 72nd Leg., ch. 14, § 42, 43, eff. Sept. 1, 1991;
Acts 1993, 73rd Leg., ch. 800, § 3, eff. Sept. 1, 1993; Acts
1997, 75th Leg., ch. 1191, § 1, eff. Sept. 1, 1997; Acts 1999,
76th Leg., ch. 276, § 1, eff. Sept. 1, 1999; Acts 1999, 76th
Leg., ch. 702, § 1, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch.
198, § 2.193, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 892,
§ 25, eff. Sept. 1, 2003.
§ 142.0011. SCOPE, PURPOSE, AND
IMPLEMENTATION. (a) The purpose of this chapter is to ensure that
home and community support services agencies in this state deliver
the highest possible quality of care. This chapter and the rules
adopted under this chapter establish minimum standards for
acceptable quality of care, and a violation of a minimum standard
established or adopted under this chapter is a violation of law.
For purposes of this chapter, components of quality of care
include:
(1) client independence and self-determination;
(2) humane treatment;
(3) continuity of care;
(4) coordination of services;
(5) professionalism of service providers;
(6) quality of life; and
(7) client satisfaction with services.
(b) The department shall protect clients of home and
community support services agencies by regulating those agencies
and:
(1) adopting rules relating to quality of care and
quality of life;
(2) strictly monitoring factors relating to the
health, safety, welfare, and dignity of each client;
(3) imposing prompt and effective remedies for
violations of this chapter and rules and standards adopted under
this chapter;
(4) enabling agencies to provide services that allow
clients to maintain the highest possible degree of independence and
self-determination; and
(5) providing the public with helpful and
understandable information relating to agencies in this state.
Added by Acts 1999, 76th Leg., ch. 276, § 2, eff. Sept. 1, 1999.
§ 142.0012. CONTROLLING PERSON. (a) A person is a
controlling person if the person, acting alone or with others, has
the ability to directly or indirectly influence, direct, or cause
the direction of the management, expenditure of money, or policies
of a home and community support services agency or other person.
(b) For purposes of this chapter, "controlling person"
includes:
(1) a management company or other business entity that
operates or contracts with others for the operation of a home and
community support services agency;
(2) a person who is a controlling person of a
management company or other business entity that operates a home
and community support services agency or that contracts with
another person for the operation of a home and community support
services agency; and
(3) any other individual who, because of a personal,
familial, or other relationship with the owner, manager, or
provider of a home and community support services agency, is in a
position of actual control or authority with respect to the agency,
without regard to whether the individual is formally named as an
owner, manager, director, officer, provider, consultant,
contractor, or employee of the agency.
(c) A controlling person described by Subsection (b)(3)
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 home and community support services agency.
(d) The department may adopt rules that specify the
ownership interests and other relationships that qualify a person
as a controlling person.
Added by Acts 1999, 76th Leg., ch. 276, § 2, eff. Sept. 1, 1999.
§ 142.002. LICENSE REQUIRED. (a) Except as provided
by Section 142.003, a person, including a health care facility
licensed under this code, may not engage in the business of
providing home health, hospice, or personal assistance services, or
represent to the public that the person is a provider of home
health, hospice, or personal assistance services for pay without a
home and community support services agency license authorizing the
person to perform those services issued by the department for each
place of business from which home health, hospice, or personal
assistance services are directed. A certified agency must have a
license to provide certified home health services.
(b) A person who is not licensed to provide home health
services under this chapter may not indicate or imply that the
person is licensed to provide home health services by the use of the
words "home health services" or in any other manner.
(c) A person who is not licensed to provide hospice services
under this chapter may not use the word "hospice" in a title or
description of a facility, organization, program, service
provider, or services or use any other words, letters,
abbreviations, or insignia indicating or implying that the person
holds a license to provide hospice services under this chapter.
(d) A license to provide hospice services issued under this
chapter authorizes a hospice to own or operate a residential unit or
inpatient unit at the licensed site in compliance with the
standards and rules adopted under this chapter.
(e) A license issued under this chapter may not be
transferred to another person, but may be transferred from one
location to another location. A change of ownership or location
shall be reported to the department.
(f) A person who is not licensed to provide personal
assistance services under this chapter may not indicate or imply
that the person is licensed to provide personal assistance services
by the use of the words "personal assistance services" or in any
other manner.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended
by Acts 1993, 73rd Leg., ch. 800, § 4, eff. Sept. 1, 1993; Acts
2003, 78th Leg., ch. 198, § 2.194, eff. Sept. 1, 2003.
§ 142.0025. TEMPORARY LICENSE. If a person is in the
process of becoming certified by the Department of Health and Human
Services to qualify as a certified agency, the department may issue
a temporary home and community support services agency license to
the person authorizing the person to provide certified home health
services. A temporary license is effective as provided by board
rules.
Added by Acts 1991, 72nd Leg., ch. 14, § 44, eff. Sept. 1, 1991.
Amended by Acts 1993, 73rd Leg., ch. 800, § 5, eff. Sept. 1,
1993.
§ 142.003. EXEMPTIONS FROM LICENSING
REQUIREMENT. (a) The following persons need not be licensed
under this chapter:
(1) a physician, dentist, registered nurse,
occupational therapist, or physical therapist licensed under the
laws of this state who provides home health services to a client
only as a part of and incidental to that person's private office
practice;
(2) a registered nurse, licensed vocational nurse,
physical therapist, occupational therapist, speech therapist,
medical social worker, or any other health care professional as
determined by the department who provides home health services as a
sole practitioner;
(3) a registry that operates solely as a clearinghouse
to put consumers in contact with persons who provide home health,
hospice, or personal assistance services and that does not maintain
official client records, direct client services, or compensate the
person who is providing the service;
(4) an individual whose permanent residence is in the
client's residence;
(5) an employee of a person licensed under this
chapter who provides home health, hospice, or personal assistance
services only as an employee of the license holder and who receives
no benefit for providing the services, other than wages from the
license holder;
(6) a home, nursing home, convalescent home, assisted
living facility, special care facility, or other institution for
individuals who are elderly or who have disabilities that provides
home health or personal assistance services only to residents of
the home or institution;
(7) a person who provides one health service through a
contract with a person licensed under this chapter;
(8) a durable medical equipment supply company;
(9) a pharmacy or wholesale medical supply company
that does not furnish services, other than supplies, to a person at
the person's house;
(10) a hospital or other licensed health care facility
that provides home health or personal assistance services only to
inpatient residents of the hospital or facility;
(11) a person providing home health or personal
assistance services to an injured employee under Title 5, Labor
Code;
(12) a visiting nurse service that:
(A) is conducted by and for the adherents of a
well-recognized church or religious denomination; and
(B) provides nursing services by a person exempt
from licensing by Section 301.004, Occupations Code, because the
person furnishes nursing care in which treatment is only by prayer
or spiritual means;
(13) an individual hired and paid directly by the
client or the client's family or legal guardian to provide home
health or personal assistance services;
(14) a business, school, camp, or other organization
that provides home health or personal assistance services,
incidental to the organization's primary purpose, to individuals
employed by or participating in programs offered by the business,
school, or camp that enable the individual to participate fully in
the business's, school's, or camp's programs;
(15) a person or organization providing
sitter-companion services or chore or household services that do
not involve personal care, health, or health-related services;
(16) a licensed health care facility that provides
hospice services under a contract with a hospice;
(17) a person delivering residential acquired immune
deficiency syndrome hospice care who is licensed and designated as
a residential AIDS hospice under Chapter 248;
(18) the Texas Department of Criminal Justice;
(19) a person that provides home health, hospice, or
personal assistance services only to persons enrolled in a program
funded wholly or partly by the Texas Department of Mental Health and
Mental Retardation and monitored by the Texas Department of Mental
Health and Mental Retardation or its designated local authority in
accordance with standards set by the Texas Department of Mental
Health and Mental Retardation; or
(20) an individual who provides home health or
personal assistance services as the employee of a consumer or an
entity or employee of an entity acting as a consumer's fiscal agent
under Section 531.051, Government Code.
(b) A home and community support services agency that owns
or operates an administrative support site is not required to
obtain a separate license under this chapter for the administrative
support site.
(c) A hospice that operates or provides hospice services to
an inpatient unit under a contract with a licensed health care
facility is not required to obtain an alternate delivery site
license for that inpatient unit.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended
by Acts 1993, 73rd Leg., ch. 800, § 6, eff. Sept. 1, 1993; Acts
1995, 74th Leg., ch. 769, § 2, eff. Sept. 1, 1995; Acts 1999,
76th Leg., ch. 276, § 3, eff. Sept. 1, 1999; Acts 2001, 77th
Leg., ch. 1420, § 14.777, eff. Sept. 1, 2001; Acts 2003, 78th
Leg., ch. 198, § 2.55, eff. Sept. 1, 2003.
§ 142.004. LICENSE APPLICATION. (a) An applicant for
a license to provide home health, hospice, or personal assistance
services must:
(1) file a written application on a form prescribed by
the department indicating the type of service the applicant wishes
to provide;
(2) cooperate with any surveys required by the
department for a license; and
(3) pay the license fee prescribed by this chapter.
(b) In addition to the requirements of Subsection (a), if
the applicant is a certified agency when the application for a
license to provide certified home health services is filed, the
applicant must maintain its Medicare certification. If the
applicant is not a certified agency when the application for a
license to provide certified home health services is filed, the
applicant must establish that it is in the process of receiving its
certification from the United States Department of Health and Human
Services.
(c) The board by rule shall require that, at a minimum,
before the department may approve a license application, the
applicant must provide to the department:
(1) documentation establishing that, at a minimum, the
applicant has sufficient financial resources to provide the
services required by this chapter and by the department during the
term of the license;
(2) a list of the management personnel for the
proposed home and community support services agency, a description
of personnel qualifications, and a plan for providing continuing
training and education for the personnel during the term of the
license;
(3) documentation establishing that the applicant is
capable of meeting the minimum standards established by the board
relating to the quality of care;
(4) a plan that provides for the orderly transfer of
care of the applicant's clients if the applicant cannot maintain or
deliver home health, hospice, or personal assistance services under
the license;
(5) identifying information on the home and community
support services agency owner, administrator, and chief financial
officer to enable the department to conduct criminal background
checks on those persons;
(6) identification of any controlling person with
respect to the applicant; and
(7) documentation relating to any controlling person
identified under Subdivision (6), if requested by the department
and relevant to the controlling person's compliance with any
applicable licensing standard required or adopted by the board
under this chapter.
(d) Information received by the department relating to the
competence and financial resources of the applicant or a
controlling person with respect to the applicant is confidential
and may not be disclosed to the public.
(e) A home and community support services agency owned or
operated by a state agency directly providing services is not
required to provide the information described in Subsections (c)(1)
and (5).
(f) The department shall evaluate and consider all
information collected during the application process.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended
by Acts 1991, 72nd Leg., ch. 14, § 45, eff. Sept. 1, 1991; Acts
1993, 73rd Leg., ch. 800, § 7, eff. Sept. 1, 1993; Acts 1997,
75th Leg., ch. 1191, § 2, eff. Sept. 1, 1997; Acts 1999, 76th
Leg., ch. 276, § 4, eff. Sept. 1, 1999.
§ 142.005. COMPLIANCE RECORD IN OTHER STATES. The
department may require an applicant or license holder to provide
the department with information relating to compliance by the
applicant, the license holder, or a controlling person with respect
to the applicant or license holder with regulatory requirements in
any other state in which the applicant, license holder, or
controlling person operates or operated a home and community
support services agency.
Added by Acts 1999, 76th Leg., ch. 276, § 5, eff. Sept. 1, 1999.
§ 142.006. LICENSE ISSUANCE; TERM. (a) The
department shall issue a home and community support services agency
license to provide home health, hospice, or personal assistance
services for each place of business to an applicant if:
(1) the applicant:
(A) qualifies for the license to provide the type
of service that is to be offered by the applicant;
(B) submits an application and license fee as
required by this chapter; and
(C) complies with all applicable licensing
standards required or adopted by the board under this chapter; and
(2) any controlling person with respect to the
applicant complies with all applicable licensing standards
required or adopted by the board under this chapter.
(b) A license issued under this chapter expires one year
after the date of issuance. The department may issue an initial
license for a term of less than one year to conform expiration dates
for a locality or an applicant. The department, in accordance with
board rules, may issue a temporary license to an applicant for an
initial license.
(c) The department may find that a home and community
support services agency has satisfied the requirements for
licensing if the agency is accredited by an accreditation
organization, such as the Joint Commission on Accreditation of
Healthcare Organizations or the Community Health Accreditation
Program, and the department finds that the accreditation
organization has standards that meet or exceed the requirements for
licensing under this chapter. A license fee is required of the home
and community support services agency at the time of a license
application.
(d) to (f) Repealed by Acts 2003, 78th Leg., ch. 198, §
2.156(a)(1).
(g) The license must designate the types of services that
the home and community support services agency is authorized to
provide at or from the designated place of business.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended
by Acts 1993, 73rd Leg., ch. 800, § 8, eff. Sept. 1, 1993; Acts
1997, 75th Leg., ch. 1191, § 3, eff. Sept. 1, 1997; Acts 1999,
76th Leg., ch. 276, § 6, eff. Sept. 1, 1999; Acts 2003, 78th
Leg., ch. 198, § 2.156(a)(1), eff. Sept. 1, 2003.
§ 142.0061. POSSESSION OF STERILE WATER OR SALINE. A
home and community support services agency or its employees who are
registered nurses or licensed vocational nurses may purchase,
store, or transport for the purpose of administering to their home
health or hospice patients under physician's orders:
(1) sterile water for injection and irrigation; and
(2) sterile saline for injection and irrigation.
Added by Acts 1993, 73rd Leg., ch. 16, § 1, eff. April 2, 1993.
Amended by Acts 1993, 73rd Leg., ch. 789, § 23, eff. Sept. 1,
1993; Acts 1995, 74th Leg., ch. 307, § 1, eff. Sept. 1, 1995;
Acts 1997, 75th Leg., ch. 1129, § 1, eff. Sept. 1, 1997.
§ 142.0062. POSSESSION OF CERTAIN VACCINES OR
TUBERCULIN. (a) A home and community support services agency or
its employees who are registered nurses or licensed vocational
nurses may purchase, store, or transport for the purpose of
administering to the agency's employees, home health or hospice
patients, or patient family members under physician's standing
orders the following dangerous drugs:
(1) hepatitis B vaccine;
(2) influenza vaccine;
(3) tuberculin purified protein derivative for
tuberculosis testing; and
(4) pneumococcal polysaccharide vaccine.
(b) A home and community support services agency that
purchases, stores, or transports a vaccine or tuberculin under this
section shall ensure that any standing order for the vaccine or
tuberculin:
(1) is signed and dated by the physician;
(2) identifies the vaccine or tuberculin covered by
the order;
(3) indicates that the recipient of the vaccine or
tuberculin has been assessed as an appropriate candidate to receive
the vaccine or tuberculin and has been assessed for the absence of
any contraindication;
(4) indicates that appropriate procedures are
established for responding to any negative reaction to the vaccine
or tuberculin; and
(5) orders that a specific medication or category of
medication be administered if the recipient has a negative reaction
to the vaccine or tuberculin.
Added by Acts 1997, 75th Leg., ch. 1129, § 1, eff. Sept. 1, 1997.
Amended by Acts 2003, 78th Leg., ch. 198, § 2.195, eff. Sept. 1,
2003.
§ 142.0063. POSSESSION OF CERTAIN DANGEROUS
DRUGS. (a) A home and community support services agency in
compliance with this section or its employees who are registered
nurses or licensed vocational nurses may purchase, store, or
transport for the purpose of administering to their home health or
hospice patients in accordance with Subsection (c) the following
dangerous drugs:
(1) any of the following items in a sealed portable
container of a size determined by the dispensing pharmacist:
(A) 1,000 milliliters of 0.9 percent sodium
chloride intravenous infusion;
(B) 1,000 milliliters of five percent dextrose in
water injection; or
(C) sterile saline; or
(2) not more than five dosage units of any of the
following items in an individually sealed, unused portable
container:
(A) heparin sodium lock flush in a concentration
of 10 units per milliliter or 100 units per milliliter;
(B) epinephrine HCl solution in a concentration
of 1 to 1,000;
(C) diphenhydramine HCl solution in a
concentration of 50 milligrams per milliliter;
(D) methylprednisolone in a concentration of 125
milligrams per two milliliters;
(E) naloxone in a concentration of one milligram
per milliliter in a two-milliliter vial;
(F) promethazine in a concentration of 25
milligrams per milliliter;
(G) glucagon in a concentration of one milligram
per milliliter;
(H) furosemide in a concentration of 10
milligrams per milliliter;
(I) lidocaine 2.5 percent and prilocaine 2.5
percent cream in a five-gram tube; or
(J) lidocaine HCl solution in a concentration of
one percent in a two-milliliter vial.
(b) A home and community support services agency or the
agency's authorized employees may purchase, store, or transport
dangerous drugs in a sealed portable container under this section
only if the agency has established policies and procedures to
ensure that:
(1) the container is handled properly with respect to
storage, transportation, and temperature stability;
(2) a drug is removed from the container only on a
physician's written or oral order;
(3) the administration of any drug in the container is
performed in accordance with a specific treatment protocol; and
(4) the agency maintains a written record of the dates
and times the container is in the possession of a registered nurse
or licensed vocational nurse.
(c) A home and community support services agency or the
agency's authorized employee who administers a drug listed in
Subsection (a) may administer the drug only in the patient's
residence under physician's orders in connection with the provision
of emergency treatment or the adjustment of:
(1) parenteral drug therapy; or
(2) vaccine or tuberculin administration.
(d) If a home and community support services agency or the
agency's authorized employee administers a drug listed in
Subsection (a) pursuant to a physician's oral order, the physician
shall promptly send a signed copy of the order to the agency, and
the agency shall:
(1) not later than 24 hours after receipt of the order,
reduce the order to written form and send a copy of the form to the
dispensing pharmacy by mail or facsimile transmission; and
(2) not later than 20 days after receipt of the order,
send a copy of the order as signed by and received from the
physician to the dispensing pharmacy.
(e) A pharmacist that dispenses a sealed portable container
under this section shall ensure that the container:
(1) is designed to allow access to the contents of the
container only if a tamper-proof seal is broken;
(2) bears a label that lists the drugs in the container
and provides notice of the container's expiration date, which is
the earlier of:
(A) the date that is six months after the date on
which the container is dispensed; or
(B) the earliest expiration date of any drug in
the container; and
(3) remains in the pharmacy or under the control of a
pharmacist, registered nurse, or licensed vocational nurse.
(f) If a home and community support services agency or the
agency's authorized employee purchases, stores, or transports a
sealed portable container under this section, the agency shall
deliver the container to the dispensing pharmacy for verification
of drug quality, quantity, integrity, and expiration dates not
later than the earlier of:
(1) the seventh day after the date on which the seal on
the container is broken; or
(2) the date for which notice is provided on the
container label.
(g) A pharmacy that dispenses a sealed portable container
under this section shall take reasonable precautionary measures to
ensure that the home and community support services agency
receiving the container complies with Subsection (f). On receipt
of a container under Subsection (f), the pharmacy shall perform an
inventory of the drugs used from the container and shall restock and
reseal the container before delivering the container to the agency
for reuse.
Added by Acts 1997, 75th Leg., ch. 1129, § 1, eff. Sept. 1, 1997.
§ 142.0065. DISPLAY OF LICENSE. A license issued under
this chapter shall be displayed in a conspicuous place in the
designated place of business and must show:
(1) the name and address of the licensee;
(2) the name of the owner or owners, if different from
the information provided under Subdivision (1);
(3) the license expiration date; and
(4) the types of services authorized to be provided
under the license.
Added by Acts 1993, 73rd Leg., ch. 800, § 9, eff. Sept. 1, 1993.
§ 142.007. NOTICE OF DRUG TESTING POLICY. An agency
licensed under this chapter shall provide to the following persons
a written statement describing the agency's policy for the drug
testing of employees who have direct contact with clients:
(1) each person applying for services from the agency;
and
(2) any person requesting the information.
Added by Acts 1999, 76th Leg., ch. 1020, § 1, eff. Sept. 1, 1999.
§ 142.008. BRANCH OFFICE. (a) The department may
issue a branch office license to a person who holds a license to
provide home health or personal assistance services.
(b) The board by rule shall establish eligibility
requirements for a branch office license.
(c) A branch office license expires on the same date as the
license to provide home health or personal assistance services held
by the applicant for the branch office license.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended
by Acts 1993, 73rd Leg., ch. 800, § 10, eff. Sept. 1, 1993.
§ 142.0085. ALTERNATE DELIVERY SITE LICENSE. (a) The
department shall issue an alternate delivery site license to a
qualified hospice.
(b) The board by rule shall establish standards required for
the issuance of an alternate delivery site license.
(c) An alternate delivery site license expires on the same
date as the license to provide hospice services held by the hospice.
Added by Acts 1993, 73rd Leg., ch. 800, § 11, eff. Sept. 1, 1993.
§ 142.009. SURVEYS; CONSUMER COMPLAINTS. (a) The
department or its representative may enter the premises of a
license applicant or license holder at reasonable times to conduct
a survey incidental to the issuance of a license and at other times
as the department considers necessary to ensure compliance with
this chapter and the rules adopted under this chapter.
(b) A home and community support services agency shall
provide each person who receives home health, hospice, or personal
assistance services with a written statement that contains the
name, address, and telephone number of the department and a
statement that informs the recipient that a complaint against a
home and community support services agency may be directed to the
department.
(c) The department or its authorized representative shall
investigate each complaint received regarding the provision of home
health, hospice, or personal assistance services and may, as a part
of the investigation:
(1) conduct an unannounced survey of a place of
business, including an inspection of medical and personnel records,
if the department has reasonable cause to believe that the place of
business is in violation of this chapter or a rule adopted under
this chapter;
(2) conduct an interview with a recipient of home
health, hospice, or personal assistance services, which may be
conducted in the recipient's home if the recipient consents;
(3) conduct an interview with a family member of a
recipient of home health, hospice, or personal assistance services
who is deceased or other person who may have knowledge of the care
received by the deceased recipient of the home health, hospice, or
personal assistance services; or
(4) interview a physician or other health care
practitioner, including a member of the personnel of a home and
community support services agency, who cares for a recipient of
home health, hospice, or personal assistance services.
(d) The reports, records, and working papers used or
developed in an investigation made under this section are
confidential and may not be released or made public except:
(1) to a state or federal agency;
(2) to federal, state, or local law enforcement
personnel;
(3) with the consent of each person identified in the
information released;
(4) in civil or criminal litigation matters or
licensing proceedings as otherwise allowed by law or judicial rule;
(5) on a form developed by the department that
identifies any deficiencies found without identifying a person,
other than the home and community support services agency;
(6) on a form required by a federal agency if:
(A) the information does not reveal the identity
of an individual, including a patient or a physician or other
medical practitioner;
(B) the service provider subject to the
investigation had a reasonable opportunity to review the
information and offer comments to be included with the information
released or made public; and
(C) the release of the information complies with
any other federal requirement; or
(7) as provided by Section 142.0092.
(e) The department's representative shall hold a conference
with the person in charge of the home and community support services
agency before beginning the on-site survey to explain the nature
and scope of the survey. When the survey is completed, the
department's representative shall hold a conference with the person
who is in charge of the agency and shall identify any records that
were duplicated. Agency records may be removed from an agency only
with the agency's consent.
(f) The department shall fully inform the person who is in
charge of the home and community support services agency of the
preliminary findings of the survey and shall give the person a
reasonable opportunity to submit additional facts or other
information to the department's authorized representative in
response to those findings. The response shall be made a part of
the record of the survey for all purposes.
(g) After a survey of a home and community support services
agency by the department, the department shall provide to the chief
executive officer of the agency:
(1) specific and timely written notice of the
preliminary findings of the survey, including:
(A) the specific nature of the survey;
(B) any alleged violations of a specific statute
or rule;
(C) the specific nature of any finding regarding
an alleged violation or deficiency; and
(D) if a deficiency is alleged, the severity of
the deficiency;
(2) information on the identity, including the
signature, of each department representative conducting,
reviewing, or approving the results of the survey and the date on
which the department representative acted on the matter; and
(3) if requested by the agency, copies of all
documents relating to the survey maintained by the department or
provided by the department to any other state or federal agency that
are not confidential under state law.
(h) Except for the investigation of complaints, a home and
community support services agency licensed by the department under
this chapter is not subject to additional surveys relating to home
health, hospice, or personal assistance services while the agency
maintains accreditation for the applicable service from the Joint
Commission for Accreditation of Healthcare Organizations, the
Community Health Accreditation Program, or other accreditation
organizations that meet or exceed the regulations adopted under
this chapter. Each provider must submit to the department
documentation from the accrediting body indicating that the
provider is accredited when the provider is applying for the
initial license and annually when the license is renewed.
(i) Repealed by Acts 2003, 78th Leg., ch. 198, §
2.156(a)(1).
(j) Except as provided by Subsections (h) and (l), an
on-site survey must be conducted within 18 months after a survey for
an initial license. After that time, an on-site survey must be
conducted at least every 36 months.
(k) If a person is renewing or applying for a license to
provide more than one type of service under this chapter, the
surveys required for each of the services the license holder or
applicant seeks to provide shall be completed during the same
surveyor visit.
(l) The department and other state agencies that are under
the Health and Human Services Commission and that contract with
home and community support services agencies to deliver services
for which a license is required under this chapter shall execute a
memorandum of understanding that establishes procedures to
eliminate or reduce duplication of standards or conflicts between
standards and of functions in license, certification, or compliance
surveys and complaint investigations. The Health and Human
Services Commission shall review the recommendation of the council
relating to the memorandum of understanding before considering
approval. The memorandum of understanding must be approved by the
commission.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended
by Acts 1991, 72nd Leg., ch. 14, § 46, eff. Sept. 1, 1991; Acts
1993, 73rd Leg., ch. 800, § 12, eff. Sept. 1, 1993; Acts 1997,
75th Leg., ch. 1191, § 4, eff. Sept. 1, 1997; Acts 1999, 76th
Leg., ch. 276, § 7, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch.
198, § 2.56, 2.156(a)(1), eff. Sept. 1, 2003.
§ 142.0091. SURVEYOR TRAINING. (a) The department
shall provide specialized training to representatives of the
department who survey home and community support services agencies.
The training must include information relating to:
(1) the conduct of appropriate surveys that do not
focus exclusively on medical standards under an acute care model;
and
(2) acceptable delegation of nursing tasks.
(b) In developing and updating the training required by this
section, the department shall consult with and include providers of
home health, hospice, and personal assistance services, recipients
of those services and their family members, and representatives of
appropriate advocacy organizations.
Added by Acts 1999, 76th Leg., ch. 276, § 8, eff. Sept. 1, 1999.
§ 142.0092. CONSUMER COMPLAINT DATA. (a) The
department shall maintain records or documents relating to
complaints directed to the department by consumers of home health,
hospice, or personal assistance services. The department shall
organize the records or documents according to standard, statewide
categories as determined by the department. In determining
appropriate categories, the department shall make distinctions
based on factors useful to the public in assessing the quality of
services provided by a home and community support services agency,
including whether the complaint:
(1) was determined to be valid or invalid;
(2) involved significant physical harm or death to a
patient;
(3) involved financial exploitation of a patient; or
(4) resulted in any sanction imposed against the
agency.
(b) The department shall make the information maintained
under this section available to the public in a useful format that
does not identify individuals implicated in the complaints.
Added by Acts 1999, 76th Leg., ch. 276, § 8, eff. Sept. 1, 1999.
§ 142.0093. RETALIATION PROHIBITED. (a) A person
licensed under this chapter may not retaliate against another
person for filing a complaint, presenting a grievance, or providing
in good faith information relating to home health, hospice, or
personal assistance services provided by the license holder.
(b) This section does not prohibit a license holder from
terminating an employee for a reason other than retaliation.
Added by Acts 1999, 76th Leg., ch. 276, § 8, eff. Sept. 1, 1999.
§ 142.0094. USE OF REGULATORY SURVEY REPORTS AND OTHER
DOCUMENTS. (a) Except as otherwise provided by this section, a
survey report or other document prepared by the department that
relates to regulation of a home and community support services
agency is not admissible as evidence in a civil action to prove that
the agency violated a standard prescribed under this chapter.
(b) Subsection (a) does not:
(1) bar the admission into evidence of department
survey reports or other documents in an enforcement action in which
the state or an agency or political subdivision of the state is a
party, including:
(A) an action seeking injunctive relief under
Section 142.013;
(B) an action seeking imposition of a civil
penalty under Section 142.014;
(C) a contested case hearing involving
imposition of an administrative penalty under Section 142.017; and
(D) a contested case hearing involving denial,
suspension, or revocation of a license issued under this chapter;
(2) bar the admission into evidence of department
survey reports or other documents that are offered:
(A) to establish warning or notice to a home and
community support services agency of a relevant department
determination; or
(B) under any rule or evidentiary predicate of
the Texas Rules of Evidence;
(3) prohibit or limit the testimony of a department
employee, in accordance with the Texas Rules of Evidence, as to
observations, factual findings, conclusions, or determinations
that a home and community support services agency violated a
standard prescribed under this chapter if the observations, factual
findings, conclusions, or determinations were made in the discharge
of the employee's official duties for the department; or
(4) prohibit or limit the use of department survey
reports or other documents in depositions or other forms of
discovery conducted in connection with a civil action if use of the
survey reports or other documents appears reasonably calculated to
lead to the discovery of admissible evidence.
Added by Acts 1999, 76th Leg., ch. 276, § 8, eff. Sept. 1, 1999.
§ 142.010. FEES. (a) The board shall set license fees
for home and community support services agencies in amounts that
are reasonable to meet the costs of administering this chapter,
except that the fees may not be less than $300 or more than $1,000
for a license to provide home health, hospice, or personal
assistance services.
(b) The board shall consider the size of the home and
community support services agency, the number of clients served,
the number of services provided, and the necessity for review of
other accreditation documentation in determining the amount of
initial and renewal license fees.
(c) A fee charged under this section is nonrefundable.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended
by Acts 1993, 73rd Leg., ch. 800, § 13, eff. Sept. 1, 1993; Acts
1997, 75th Leg., ch. 1191, § 5, eff. Sept. 1, 1997.
§ 142.0105. LICENSE RENEWAL. (a) A person who is
otherwise eligible to renew a license may renew an unexpired
license by paying the required renewal fee to the department before
the expiration date of the license. A person whose license has
expired may not engage in activities that require a license until
the license has been renewed.
(b) A person whose license has been expired for 90 days or
less may renew the license by paying to the department a renewal fee
that is equal to 1-1/2 times the normally required renewal fee.
(c) A person whose license has been expired for more than 90
days may obtain a new license by complying with the requirements and
procedures for obtaining an original license.
(d) Not later than the 60th day before the date a person's
license is scheduled to expire, the department shall send written
notice of the impending expiration to the person at the person's
last known address according to the records of the department.
Added by Acts 1999, 76th Leg., ch. 887, § 1, eff. Sept. 1, 1999.
§ 142.011. DENIAL, SUSPENSION, OR REVOCATION OF
LICENSE. (a) The department may deny a license application or
suspend or revoke the license of a person who:
(1) fails to comply with the rules or standards for
licensing required by this chapter; or
(2) engages in conduct that violates Section 161.091.
(b) The department may immediately suspend or revoke a
license when the health and safety of persons are threatened. If
the department issues an order of immediate suspension or
revocation, the department shall immediately give the chief
executive officer of the home and community support services agency
adequate notice of the action taken, the legal grounds for the
action, and the procedure governing appeal of the action. A person
whose license is suspended or revoked under this subsection is
entitled to a hearing not later than the seventh day after the
effective date of the suspension or revocation.
(c) The department may suspend or revoke a home and
community support services agency's license to provide certified
home health services if the agency fails to maintain its
certification qualifying the agency as a certified agency. A home
and community support services agency that is licensed to provide
certified home health services and that submits a request for a
hearing as provided by Subsection (d) is subject to the
requirements of this chapter relating to a home and community
support services agency that is licensed to provide home health
services, but not certified home health services, until the
suspension or revocation is finally determined by the department
or, if the license is suspended or revoked, until the last day for
seeking review of the department order or a later date fixed by
order of the reviewing court.
(d) A person whose application is denied or whose license is
suspended or revoked is entitled to a hearing before the department
if the person submits a written request to the department. Chapter
2001, Government Code and the department's rules for contested case
hearings apply to hearings conducted under this section and to
appeals from department decisions.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended
by Acts 1991, 72nd Leg., ch. 14, § 47, eff. Sept. 1, 1991; Acts
1993, 73rd Leg., ch. 800, § 14, eff. Sept. 1, 1993; Acts 1995,
74th Leg., ch. 76, § 5.95(49), eff. Sept. 1, 1995; Acts 1999,
76th Leg., ch. 276, § 9, eff. Sept. 1, 1999.
§ 142.012. POWERS AND DUTIES. (a) The board, with the
recommendations of the council, shall adopt rules necessary to
implement this chapter.
(b) The board by rule shall set minimum standards for home
and community support services agencies licensed under this chapter
that relate to:
(1) qualifications for professional and
nonprofessional personnel, including volunteers;
(2) supervision of professional and nonprofessional
personnel, including volunteers;
(3) the provision and coordination of treatment and
services, including support and bereavement services, as
appropriate;
(4) the management, ownership, and organizational
structure, including lines of authority and delegation of
responsibility and, as appropriate, the composition of an
interdisciplinary team;
(5) clinical and business records;
(6) financial ability to carry out the functions as
proposed;
(7) safety, fire prevention, and sanitary standards
for residential units and inpatient units; and
(8) any other aspects of home health, hospice, or
personal assistance services as necessary to protect the public.
(c) The initial minimum standards adopted by the board under
Subsection (b) for hospice services must be at least as stringent as
the conditions of participation for a Medicare certified provider
of hospice services in effect on April 30, 1993, under Title XVIII,
Social Security Act (42 U.S.C. Section 1395 et seq.).
(d) The department shall prescribe forms necessary to
perform its duties.
(e) The department shall require each person or home and
community support services agency providing home health, hospice,
or personal assistance services to implement and enforce the
applicable provisions of Chapter 102, Human Resources Code.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended
by Acts 1993, 73rd Leg., ch. 800, § 15, eff. Sept. 1, 1993.
§ 142.013. INJUNCTION. (a) A district court, on
petition of the department and on a finding by the court that a
person is violating this chapter, may by injunction:
(1) prohibit the person from continuing the violation;
or
(2) grant any other injunctive relief warranted by the
facts.
(b) The attorney general shall institute and conduct a suit
authorized by this section at the request of the department and in
the name of the state.
(c) A suit for injunctive relief must be brought in Travis
County.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 142.014. CIVIL PENALTY. (a) A person who engages in
the business of providing home health, hospice, or personal
assistance service, or represents to the public that the person is a
provider of home health, hospice, and personal assistance services
for pay, without a license issued under this chapter authorizing
the services that are being provided is liable for a civil penalty
of not less than $1,000 or more than $2,500 for each day of
violation. Penalties may be appropriated only to the department
and to administer this chapter.
(b) An action to recover a civil penalty is in addition to an
action brought for injunctive relief under Section 142.013 or any
other remedy provided by law. The attorney general shall bring suit
on behalf of the state to collect the civil penalty.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended
by Acts 1993, 73rd Leg., ch. 800, § 16, eff. Sept. 1, 1993.
§ 142.0145. VIOLATION OF LAW RELATING TO ADVANCE
DIRECTIVES. (a) The department shall assess an administrative
penalty against a home and community support services agency that
violates Section 166.004.
(b) A penalty assessed under this section shall be $500.
(c) The penalty shall be assessed in accordance with
department rules. The rules must provide for notice and an
opportunity for a hearing.
Added by Acts 1999, 76th Leg., ch. 450, § 2.02, eff. Sept. 1,
1999.
§ 142.015. ADVISORY COUNCIL. (a) The Home and
Community Support Services Advisory Council is composed of the
following 13 members, appointed by the governor:
(1) three consumer representatives;
(2) two representatives of agencies that are licensed
to provide certified home health services;
(3) two representatives of agencies that are licensed
to provide home health services but are not certified home health
services;
(4) three representatives of agencies that are
licensed to provide hospice services, with one representative
appointed from:
(A) a community-based non-profit provider of
hospice services;
(B) a community-based proprietary provider of
hospice services; and
(C) a hospital-based provider of hospice
services; and
(5) three representatives of agencies that are
licensed to provide personal assistance services.
(b) Repealed by Acts 1991, 72nd Leg., 1st C.S., ch. 17, §
7.01(18), eff. Nov. 12, 1991.
(c) The council shall advise the department on licensing
standards and on the implementation of this chapter. At each
meeting of the council, the department shall provide an analysis of
enforcement actions taken under this chapter, including the type of
enforcement action, the results of the action, and the basis for the
action. The council may advise the department on its
implementation of the enforcement provisions of this chapter.
(d) Members of the council serve staggered two-year terms,
with the terms of seven members expiring on January 31 of each
even-numbered year and the terms of six members expiring on January
31 of each odd-numbered year.
(e) The council shall elect a presiding officer from among
its members to preside at meetings and to notify members of
meetings. The presiding officer shall serve for one year and may
not serve in that capacity for more than two years.
(f) The council shall meet at least once a year and may meet
at other times at the call of the presiding officer, any three
members of the council, or the commissioner.
(g) Members of the council serve without compensation.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended
by Acts 1991, 72nd Leg., ch. 14, § 48, eff. Sept. 1, 1991; Acts
1991, 72nd Leg., 1st C.S., ch. 17, § 7.01(18), eff. Nov. 12,
1991; Acts 1993, 73rd Leg., ch. 800, § 17, eff. Sept. 1, 1993;
Acts 1997, 75th Leg., ch. 1191, § 6, eff. Sept. 1, 1997.
§ 142.016. MEMORANDUM OF UNDERSTANDING RELATING TO
NURSING SERVICES; GUIDELINES. (a) The Board of Nurse Examiners
and the department shall adopt a memorandum of understanding
governing the circumstances under which the provision of
health-related tasks or services do not constitute the practice of
professional nursing. The agencies periodically shall review and
shall renew or modify the memorandum as necessary.
(b) The Board of Nurse Examiners and the department shall
consult with an advisory committee in developing, modifying, or
renewing the memorandum of understanding. The advisory committee
shall be appointed by the Board of Nurse Examiners and the
department and at a minimum shall include:
(1) one representative from the Board of Nurse
Examiners and one representative from the department to serve as
cochairmen;
(2) one representative from the Texas Department of
Mental Health and Mental Retardation;
(3) one representative from the Texas Nurses
Association;
(4) one representative from the Texas Association for
Home Care, Incorporated, or its successor;
(5) one representative from the Texas Hospice
Organization, Incorporated, or its successor;
(6) one representative of the Texas Respite Resource
Network or its successor; and
(7) two representatives of organizations such as the
Personal Assistance Task Force or the Disability Consortium that
advocate for clients in community-based settings.
(c) The department shall prepare guidelines according to
the memorandum of understanding required by Subsection (a) for
licensed home and community support services agencies in providing
personal assistance services to clients.
Added by Acts 1993, 73rd Leg., ch. 800, § 18, eff. Sept. 1, 1993.
Amended by Acts 2003, 78th Leg., ch. 198, § 2.196, eff. Sept. 1,
2003.
§ 142.017. ADMINISTRATIVE PENALTY. (a) The department
may assess an administrative penalty against a person who violates:
(1) this chapter or a rule adopted under this chapter;
or
(2) Section 102.001, Occupations Code, if the
violation relates to the provision of home health, hospice, or
personal assistance services.
(b) The penalty shall be not less than $100 or more than
$1,000 for each violation. Each day of a violation that occurs
before the day on which the person receives written notice of the
violation from the department does not constitute a separate
violation and shall be considered to be one violation. Each day of
a continuing violation that occurs after the day on which the person
receives written notice of the violation from the department
constitutes a separate violation.
(c) The department by rule shall specify each violation for
which an administrative penalty may be assessed. In determining
which violations warrant penalties, the department shall consider:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation and the
hazard of the violation to the health or safety of clients; and
(2) whether the affected home and community support
services agency had identified the violation as a part of its
internal quality assurance process and had made appropriate
progress on correction.
(d) The department by rule shall establish a schedule of
appropriate and graduated penalties for each violation based on:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation and the
hazard or safety of clients;
(2) the history of previous violations by the person
or a controlling person with respect to that person;
(3) whether the affected home and community support
services agency had identified the violation as a part of its
internal quality assurance process and had made appropriate
progress on correction;
(4) the amount necessary to deter future violations;
(5) efforts made to correct the violation; and
(6) any other matters that justice may require.
(e) The department by rule shall provide the home and
community support services agency with a reasonable period of time
following the first day of a violation to correct the violation
before assessing an administrative penalty if a plan of correction
has been implemented.
(f) An administrative penalty may not be assessed for minor
violations unless those violations are of a continuing nature or
are not corrected.
(g) The department shall establish a system to ensure
standard and consistent application of penalties regardless of the
home and community support services agency location.
(h) All proceedings for the assessment of an administrative
penalty under this chapter are subject to Chapter 2001, Government
Code.
(i) The department may not assess an administrative penalty
against a state agency.
Added by Acts 1997, 75th Leg., ch. 1191, § 7, eff. Sept. 1, 1997.
Amended by Acts 1999, 76th Leg., ch. 276, § 10, eff. Sept. 1,
1999; Acts 2001, 77th Leg., ch. 1420, § 14.778, eff. Sept. 1,
2001.
§ 142.0171. NOTICE; REQUEST FOR HEARING. (a) If,
after investigation of a possible violation and the facts
surrounding that possible violation, the department determines
that a violation has occurred, the department shall give written
notice of the violation to the person alleged to have committed the
violation. The notice shall 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 Section 142.017(d); and
(3) a statement of the person's right to a hearing on
the occurrence of the violation, the amount of the penalty, or both
the occurrence of the violation and the amount of the penalty.
(b) Not later than the 20th day after the date on which the
notice is received, the person notified may accept the
determination of the department made under this section, including
the proposed penalty, or may make a written request for a hearing on
that determination.
(c) If the person notified of the violation accepts the
determination of the department or if the person fails to respond in
a timely manner to the notice, the commissioner or the
commissioner's designee shall issue an order approving the
determination and ordering that the person pay the proposed
penalty.
Added by Acts 1997, 75th Leg., ch. 1191, § 7, eff. Sept. 1, 1997.
§ 142.0172. HEARING; ORDER. (a) If the person
notified requests a hearing, the department shall:
(1) set a hearing;
(2) give written notice of the hearing to the person;
and
(3) designate a hearings examiner to conduct the
hearing.
(b) The hearings examiner shall make findings of fact and
conclusions of law and shall promptly issue to the commissioner or
the commissioner's designee a proposal for decision as to the
occurrence of the violation and a recommendation as to the amount of
the proposed penalty if a penalty is determined to be warranted.
(c) Based on the findings of fact and conclusions of law and
the recommendations of the hearings examiner, the commissioner or
the commissioner's designee by order may find that a violation has
occurred and may assess a penalty or may find that no violation has
occurred.
Added by Acts 1997, 75th Leg., ch. 1191, § 7, eff. Sept. 1, 1997.
§ 142.0173. NOTICE AND PAYMENT OF ADMINISTRATIVE
PENALTY; JUDICIAL REVIEW; REFUND. (a) The department shall give
notice of the order under Section 142.0172(c) to the person alleged
to have committed the violation. The notice must include:
(1) separate statements of the findings of fact and
conclusions of law;
(2) the amount of any penalty assessed; and
(3) a statement of the right of the person to judicial
review of the order.
(b) Not later than the 30th day after the date on which the
decision is final as provided by Chapter 2001, Government Code, the
person shall:
(1) pay the penalty;
(2) pay the amount of the penalty and file a petition
for judicial review contesting the occurrence of the violation, the
amount of the penalty, or both the occurrence of the violation and
the amount of the penalty; or
(3) without paying the penalty, file a petition for
judicial review contesting the occurrence of the violation, the
amount of the penalty, or both the occurrence of the violation and
the amount of the penalty.
(c) Within the 30-day period, a person who acts under
Subsection (b)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement
in an escrow account; or
(B) giving to the court a supersedeas bond that
is approved by the court for the amount of the penalty and that is
effective until all judicial review of the order is final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court a sworn affidavit of
the person stating that the person is financially unable to pay the
amount of the penalty and is financially unable to give the
supersedeas bond; and
(B) giving a copy of the affidavit to the
department by certified mail.
(d) If the department receives a copy of an affidavit under
Subsection (c)(2), the department may file with the court, within
10 days after the date the copy is received, a contest to the
affidavit. The court shall hold a hearing on the facts alleged in
the affidavit as soon as practicable and shall stay the enforcement
of the penalty on finding that the alleged facts are true. The
person who files an affidavit has the burden of proving that the
person is financially unable to pay the penalty and to give a
supersedeas bond.
(e) If the person does not pay the penalty and the
enforcement of the penalty is not stayed, the department may refer
the matter to the attorney general for collection of the penalty.
(f) Judicial review of the order:
(1) is instituted by filing a petition as provided by
Subchapter G, Chapter 2001, Government Code; and
(2) is under the substantial evidence rule.
(g) If the court sustains the occurrence of the violation,
the court may uphold or reduce the amount of the penalty and order
the person to pay the full or reduced amount of the penalty. If the
court does not sustain the occurrence of the violation, the court
shall order that no penalty is owed.
(h) When the judgment of the court becomes final, the court
shall proceed under this subsection. If the person paid the amount
of the penalty under Subsection (b)(2) and if that amount is reduced
or is not upheld by the court, the court shall order that the
department pay the appropriate amount plus accrued interest to the
person. The rate of the interest is the rate charged on loans to
depository institutions by the New York Federal Reserve Bank, and
the interest shall be paid for the period beginning on the date the
penalty was paid and ending on the date the penalty is remitted. If
the person paid the penalty under Subsection (c)(1)(A), or gave a
supersedeas bond, and if the amount of the penalty is not upheld by
the court, the court shall order the release of the escrow account
or bond. If the person paid the penalty under Subsection (c)(1)(A)
and the amount of the penalty is reduced, the court shall order that
the amount of the penalty be paid to the department from the escrow
account and that the remainder of the account be released. If the
person gave a supersedeas bond and if the amount of the penalty is
reduced, the court shall order the release of the bond after the
person pays the amount.
Added by Acts 1997, 75th Leg., ch. 1191, § 7, eff. Sept. 1, 1997.
§ 142.0174. PENALTY DEPOSITED TO STATE TREASURY. An
administrative penalty collected under this subchapter shall be
deposited in the state treasury to the credit of the general revenue
fund.
Added by Acts 1997, 75th Leg., ch. 1191, § 7, eff. Sept. 1, 1997.
§ 142.0175. EXPENSES AND COSTS FOR COLLECTION OF CIVIL
OR ADMINISTRATIVE PENALTY. (a) If the attorney general brings an
action against a person under Section 142.013 or 142.014 or to
enforce an administrative penalty assessed under Section 142.0173
and an injunction is granted against the person or the person is
found liable for a civil or administrative penalty, the attorney
general may recover, on behalf of the attorney general and the
department, reasonable expenses and costs.
(b) For purposes of this section, reasonable expenses and
costs include expenses incurred by the department and the attorney
general in the investigation, initiation, and prosecution of an
action, including reasonable investigative costs, attorney's fees,
witness fees, and deposition expenses.
Added by Acts 1997, 75th Leg., ch. 1191, § 7, eff. Sept. 1, 1997.
§ 142.018. REPORTS OF ABUSE, EXPLOITATION, OR
NEGLECT. (a) In this section, "abuse," "exploitation," and
"neglect" have the meanings assigned by Section 48.002, Human
Resources Code.
(b) A home and community support services agency that has
cause to believe that a person receiving services from the agency
has been abused, exploited, or neglected by an employee of the
agency shall report the information to:
(1) the department; and
(2) the Department of Protective and Regulatory
Services or other appropriate state agency as required by Section
48.051, Human Resources Code.
(c) This section does not affect the duty or authority of
any state agency to conduct an investigation of alleged abuse,
exploitation, or neglect as provided by other law. An
investigation of alleged abuse, exploitation, or neglect may be
conducted without an on-site survey, as appropriate.
Added by Acts 1999, 76th Leg., ch. 276, § 11, eff. Sept. 1, 1999.
Amended by Acts 2003, 78th Leg., ch. 198, § 2.197, eff. Sept. 1,
2003.
§ 142.019. CERTAIN PHYSICIAN REFERRALS PROHIBITED. A
physician may not refer a patient to a home and community support
services agency if the referral violates 42 U.S.C. Section 1395nn
and its subsequent amendments.
Added by Acts 1999, 76th Leg., ch. 276, § 11, eff. Sept. 1, 1999.
§ 142.020. DISPOSAL OF SPECIAL OR MEDICAL WASTE. (a) A
home and community support services agency that generates special
or medical waste while providing home health services must dispose
of the waste in the same manner that the home and community support
services agency disposes of special or medical waste generated in
the agency's office location.
(b) A home and community support services agency shall
provide both verbal and written instructions to the agency's client
regarding the proper procedure for disposing of sharps. Sharps
include hypodermic needles; hypodermic syringes with attached
needles; scalpel blades; razor blades, disposable razors, and
disposable scissors used in medical procedures; and intravenous
stylets and rigid introducers.
Added by Acts 1999, 76th Leg., ch. 276, § 12, eff. Sept. 1, 1999;
Acts 1999, 76th Leg., ch. 1317, § 1, eff. Sept. 1, 1999.
SUBCHAPTER B. PERMITS TO ADMINISTER MEDICATION
§ 142.021. ADMINISTRATION OF MEDICATION. A person may
not administer medication to a client of a home and community
support services agency unless the person:
(1) holds a license under state law that authorizes
the person to administer medication;
(2) holds a permit issued under Section 142.025 and
acts under the delegated authority of a person who holds a license
under state law that authorizes the person to administer
medication;
(3) administers a medication to a client of a home and
community support service agency in accordance with rules of the
Board of Nurse Examiners that permit delegation of the
administration of medication to a person not holding a permit under
Section 142.025; or
(4) administers noninjectable medication under
circumstances authorized by the memorandum of understanding
adopted under Section 142.016.
Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, § 3, eff. June
19, 1990. Amended by Acts 1993, 73rd Leg., ch. 800, § 19, eff.
Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1191, § 8, eff. Sept. 1,
1997.
§ 142.022. EXEMPTIONS FOR NURSING STUDENTS AND
MEDICATION AIDE TRAINEES. (a) Sections 142.021 and 142.029 do not
apply to:
(1) a graduate nurse holding a temporary permit issued
by the Board of Nurse Examiners;
(2) a student enrolled in an accredited school of
nursing or program for the education of registered nurses who is
administering medications as part of the student's clinical
experience;
(3) a graduate vocational nurse holding a temporary
permit issued by the Board of Nurse Examiners;
(4) a student enrolled in an accredited school of
vocational nursing or program for the education of vocational
nurses who is administering medications as part of the student's
clinical experience; or
(5) a trainee in a medication aide training program
approved by the department under Section 142.024 who is
administering medications as part of the trainee's clinical
experience.
(b) The administration of medications by persons exempted
under Subdivisions (1) through (4) of Subsection (a) is governed by
the terms of the memorandum of understanding executed by the
department and the Board of Nurse Examiners.
Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, § 4, eff. June
19, 1990. Amended by Acts 2003, 78th Leg., ch. 553, § 2.009,
eff. Feb. 1, 2004.
§ 142.023. RULES FOR ADMINISTRATION OF MEDICATION. The
board by rule shall establish:
(1) minimum requirements for the issuance, denial,
renewal, suspension, emergency suspension, and revocation of a
permit to a home health medication aide;
(2) curricula to train a home health medication aide;
(3) minimum standards for the approval of home health
medication aide training programs and for rescinding approval;
(4) the acts and practices that are allowed or
prohibited to a permit holder; and
(5) minimum standards for on-site supervision of a
permit holder by a registered nurse.
Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, § 3, eff. June
19, 1990. Amended by Acts 1993, 73rd Leg., ch. 800, § 20, eff.
Sept. 1, 1993.
§ 142.024. HOME HEALTH MEDICATION AIDE TRAINING
PROGRAMS. (a) An application for the approval of a home health
medication aide training program must be made to the department on a
form and under rules prescribed by the board.
(b) The department shall approve a home health medication
aide training program that meets the minimum standards adopted
under Section 142.023. The department may review the approval
annually.
Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, § 3, eff. June
19, 1990. Amended by Acts 1993, 73rd Leg., ch. 800, § 21, eff.
Sept. 1, 1993.
§ 142.025. ISSUANCE AND RENEWAL OF HOME HEALTH
MEDICATION AIDE PERMIT. (a) To be issued or to have renewed a
home health medication aide permit, a person shall apply to the
department on a form prescribed and under rules adopted by the
board.
(b) The department shall prepare and conduct an examination
for the issuance of a permit.
(c) The department shall require a permit holder to
satisfactorily complete a continuing education course approved by
the department for renewal of the permit.
(d) The department shall issue a permit or renew a permit to
an applicant who:
(1) meets the minimum requirements adopted under
Section 142.023;
(2) successfully completes the examination or the
continuing education requirements; and
(3) pays a nonrefundable application fee determined by
the board.
(e) A permit is valid for one year and is not transferable.
Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, § 3, eff. June
19, 1990. Amended by Acts 1993, 73rd Leg., ch. 800, § 22, 23,
eff. Sept. 1, 1993.
§ 142.026. FEES FOR ISSUANCE AND RENEWAL OF HOME HEALTH
MEDICATION AIDE PERMIT. (a) The board shall set the fees in
amounts reasonable and necessary to recover the amount projected by
the department as required to administer its functions under this
subchapter. The fees may not exceed:
(1) $25 for a combined permit application and
examination fee; and
(2) $15 for a renewal permit application fee.
(b) Fees received under this section may only be
appropriated to the department to administer this subchapter.
Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, § 3, eff. June
19, 1990. Amended by Acts 1993, 73rd Leg., ch. 800, § 24, eff.
Sept. 1, 1993.
§ 142.027. VIOLATION OF HOME HEALTH MEDICATION AIDE
PERMITS. (a) For the violation of this subchapter or a rule
adopted under this subchapter, the department may:
(1) deny, suspend, revoke, or refuse to renew a
permit;
(2) suspend a permit in an emergency; or
(3) rescind training program approval.
(b) Except as provided by Section 142.028, the procedure by
which the department takes a disciplinary action and the procedure
by which a disciplinary action is appealed are governed by the
department's rules for a formal hearing and by Chapter 2001,
Government Code.
Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, § 3, eff. June
19, 1990. Amended by Acts 1993, 73rd Leg., ch. 800, § 25, eff.
Sept. 1, 1993; Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff.
Sept. 1, 1995.
§ 142.028. EMERGENCY SUSPENSION OF HOME HEALTH
MEDICATION AIDE PERMITS. (a) The department shall issue an order
to suspend a permit issued under Section 142.025 if the department
has reasonable cause to believe that the conduct of the permit
holder creates an imminent danger to the public health or safety.
(b) An emergency suspension is effective immediately
without a hearing on notice to the permit holder.
(c) If requested in writing by a permit holder whose permit
is suspended, the department shall conduct a hearing to continue,
modify, or rescind the emergency suspension.
(d) The hearing must be held not earlier than the 10th day or
later than the 30th day after the date on which the hearing request
is received.
(e) The hearing and an appeal from a disciplinary action
related to the hearing are governed by the department's rules for a
formal hearing and Chapter 2001, Government Code.
Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, § 3, eff. June
19, 1990. Amended by Acts 1993, 73rd Leg., ch. 800, § 26, eff.
Sept. 1, 1993; Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff.
Sept. 1, 1995.
§ 142.029. ADMINISTRATION OF MEDICATION; CRIMINAL
PENALTY. (a) A person commits an offense if the person knowingly
administers medication to a client of a home and community support
services agency and the person is not authorized to administer the
medication under Section 142.021 or 142.022.
(b) An offense under this section is a Class B misdemeanor.
Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, § 3, eff. June
19, 1990. Amended by Acts 1993, 73rd Leg., ch. 800, § 27, eff.
Sept. 1, 1993.
§ 142.030. DISPENSING DANGEROUS DRUGS OR CONTROLLED
SUBSTANCES; CRIMINAL PENALTY. (a) A person authorized by this
subchapter to administer medication to a client of a home and
community support services agency may not dispense dangerous drugs
or controlled substances without complying with Subtitle J, Title
3, Occupations Code.
(b) An offense under this section is a Class A misdemeanor.
Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, § 3, eff. June
19, 1990. Amended by Acts 1993, 73rd Leg., ch. 800, § 28, eff.
Sept. 1, 1993; Acts 2001, 77th Leg., ch. 1420, § 14.779, eff.
Sept. 1, 2001.
