CHAPTER 142. HOME AND COMMUNITY SUPPORT SERVICES - Texas Statutes

HEALTH AND SAFETY CODE

TITLE 2. HEALTH

SUBTITLE G. LICENSES

CHAPTER 142. HOME AND COMMUNITY SUPPORT SERVICES

SUBCHAPTER A. HOME AND COMMUNITY SUPPORT SERVICES LICENSE

Sec. 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 Texas Board of Nursing 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, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 42, 43, eff. Sept.

1, 1991; Acts 1993, 73rd Leg., ch. 800, Sec. 3, eff. Sept. 1,

1993; Acts 1997, 75th Leg., ch. 1191, Sec. 1, eff. Sept. 1, 1997;

Acts 1999, 76th Leg., ch. 276, Sec. 1, eff. Sept. 1, 1999; Acts

1999, 76th Leg., ch. 702, Sec. 1, eff. Sept. 1, 1999; Acts 2003,

78th Leg., ch. 198, Sec. 2.193, eff. Sept. 1, 2003; Acts 2003,

78th Leg., ch. 892, Sec. 25, eff. Sept. 1, 2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

889, Sec. 63, eff. September 1, 2007.

Sec. 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, Sec. 2, eff. Sept. 1,

1999.

Sec. 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, Sec. 2, eff. Sept. 1,

1999.

Sec. 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, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1993, 73rd Leg., ch. 800, Sec. 4, eff. Sept. 1,

1993; Acts 2003, 78th Leg., ch. 198, Sec. 2.194, eff. Sept. 1,

2003.

Sec. 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, Sec. 44, eff. Sept. 1,

1991. Amended by Acts 1993, 73rd Leg., ch. 800, Sec. 5, eff.

Sept. 1, 1993.

Sec. 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, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1993, 73rd Leg., ch. 800, Sec. 6, eff. Sept. 1,

1993; Acts 1995, 74th Leg., ch. 769, Sec. 2, eff. Sept. 1, 1995;

Acts 1999, 76th Leg., ch. 276, Sec. 3, eff. Sept. 1, 1999; Acts

2001, 77th Leg., ch. 1420, Sec. 14.777, eff. Sept. 1, 2001; Acts

2003, 78th Leg., ch. 198, Sec. 2.55, eff. Sept. 1, 2003.

Sec. 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, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 45, eff. Sept. 1,

1991; Acts 1993, 73rd Leg., ch. 800, Sec. 7, eff. Sept. 1, 1993;

Acts 1997, 75th Leg., ch. 1191, Sec. 2, eff. Sept. 1, 1997; Acts

1999, 76th Leg., ch. 276, Sec. 4, eff. Sept. 1, 1999.

Sec. 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, Sec. 5, eff. Sept. 1,

1999.

Sec. 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 two years after

the date of issuance. The executive commissioner of the Health

and Human Services Commission by rule may adopt a system under

which licenses expire on various dates during the two-year

period. For the year in which a license expiration date is

changed, the department shall prorate the license fee on a

monthly basis. Each license holder shall pay only that portion

of the license fee allocable to the number of months for which

the license is valid. A license holder shall pay the total

license renewal fee at the time of renewal. The department may

issue an initial license for a shorter term to conform expiration

dates for a locality or an applicant. The department 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, Sec.

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, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1993, 73rd Leg., ch. 800, Sec. 8, eff. Sept. 1,

1993; Acts 1997, 75th Leg., ch. 1191, Sec. 3, eff. Sept. 1, 1997;

Acts 1999, 76th Leg., ch. 276, Sec. 6, eff. Sept. 1, 1999; Acts

2003, 78th Leg., ch. 198, Sec. 2.156(a)(1), eff. Sept. 1, 2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

809, Sec. 5, eff. September 1, 2007.

Sec. 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, Sec. 1, eff. April 2,

1993. Amended by Acts 1993, 73rd Leg., ch. 789, Sec. 23, eff.

Sept. 1, 1993; Acts 1995, 74th Leg., ch. 307, Sec. 1, eff. Sept.

1, 1995; Acts 1997, 75th Leg., ch. 1129, Sec. 1, eff. Sept. 1,

1997.

Sec. 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, Sec. 1, eff. Sept. 1,

1997. Amended by Acts 2003, 78th Leg., ch. 198, Sec. 2.195, eff.

Sept. 1, 2003.

Sec. 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, Sec. 1, eff. Sept. 1,

1997.

Sec. 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, Sec. 9, eff. Sept. 1,

1993.

Sec. 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, Sec. 1, eff. Sept. 1,

1999.

Sec. 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, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1993, 73rd Leg., ch. 800, Sec. 10, eff. Sept. 1,

1993.

Sec. 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, Sec. 11, eff. Sept. 1,

1993.

Sec. 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, including

any allegation of abuse, neglect, or exploitation of a child

under the age of 18, 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) At the conclusion of a survey or complaint investigation,

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 at an exit conference 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. The department's

representative shall leave a written list of the preliminary

findings with the agency at the exit conference.

(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 official 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.

(g-1) If the department or the department's authorized

representative discovers any additional violations during the

review of field notes or preparation of the official statement of

deficiencies for a home and community support services agency,

the department or the department's representative shall conduct

an additional exit conference regarding the additional

violations. The additional exit conference must be held in

person and may not be held over the telephone, by e-mail, or by

facsimile transmission.

(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, Sec. 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, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 46, eff. Sept. 1,

1991; Acts 1993, 73rd Leg., ch. 800, Sec. 12, eff. Sept. 1, 1993;

Acts 1997, 75th Leg., ch. 1191, Sec. 4, eff. Sept. 1, 1997; Acts

1999, 76th Leg., ch. 276, Sec. 7, eff. Sept. 1, 1999; Acts 2003,

78th Leg., ch. 198, Sec. 2.56, 2.156(a)(1), eff. Sept. 1, 2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

809, Sec. 6, eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch.

974, Sec. 1, eff. September 1, 2007.

Sec. 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, Sec. 8, eff. Sept. 1,

1999.

Sec. 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, Sec. 8, eff. Sept. 1,

1999.

Sec. 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, Sec. 8, eff. Sept. 1,

1999.

Sec. 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, Sec. 8, eff. Sept. 1,

1999.

Sec. 142.010. FEES. (a) The department 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 $600 or more than

$2,000 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, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1993, 73rd Leg., ch. 800, Sec. 13, eff. Sept. 1,

1993; Acts 1997, 75th Leg., ch. 1191, Sec. 5, eff. Sept. 1, 1997.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

809, Sec. 7, eff. September 1, 2007.

Sec. 142.0105. LICENSE RENEWAL. (a) A person who is otherwise

eligible to renew a license may renew an unexpired license by

submitting a completed application for renewal and paying the

required renewal fee to the department not later than the 45th

day before the expiration date of the license. A person whose

license has expired may not engage in activities that require a

license.

(b) An applicant for a license renewal who submits an

application later than the 45th day before the expiration date of

the license is subject to a late fee in accordance with

department rules.

(c) Not later than the 120th 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.

The written notice must include an application for license

renewal and instructions for completing the application.

Added by Acts 1999, 76th Leg., ch. 887, Sec. 1, eff. Sept. 1,

1999.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

809, Sec. 8, eff. September 1, 2007.

Sec. 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, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 47, eff. Sept. 1,

1991; Acts 1993, 73rd Leg., ch. 800, Sec. 14, eff. Sept. 1, 1993;

Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49), eff. Sept. 1, 1995;

Acts 1999, 76th Leg., ch. 276, Sec. 9, eff. Sept. 1, 1999.

Sec. 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, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1993, 73rd Leg., ch. 800, Sec. 15, eff. Sept. 1,

1993.

Sec. 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, Sec. 1, eff. Sept. 1, 1989.

Sec. 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, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1993, 73rd Leg., ch. 800, Sec. 16, eff. Sept. 1,

1993.

Sec. 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, Sec. 2.02, eff. Sept. 1,

1999.

Sec. 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, Sec.

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, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 48, eff. Sept. 1,

1991; Acts 1991, 72nd Leg., 1st C.S., ch. 17, Sec. 7.01(18), eff.

Nov. 12, 1991; Acts 1993, 73rd Leg., ch. 800, Sec. 17, eff. Sept.

1, 1993; Acts 1997, 75th Leg., ch. 1191, Sec. 6, eff. Sept. 1,

1997.

Sec. 142.016. MEMORANDUM OF UNDERSTANDING RELATING TO NURSING

SERVICES; GUIDELINES. (a) The Texas Board of Nursing 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 Texas Board of Nursing and the department shall consult

with an advisory committee in