Texas Department of Aging and Disability Services
Licensing Standards for Home and Community Support Services Agencies Handbook
Revision: 12-2

Subchapter E

§97.501  Survey Frequency

(a)
At a minimum, DADS:
(1)
conducts an initial survey after an agency has notified DADS of its readiness. See §97.521 of this subchapter (relating to Requirements for an Initial Survey);
(2)
conducts a survey of the agency within 18 months after conducting an initial survey and conducts subsequent surveys at least every 36 months thereafter; and
(3)
conducts a survey to investigate a complaint alleging:
(A)
abuse, neglect, or exploitation of a client as described in §97.502 (relating to State Agency Investigations of Complaints and Self-Reported Incidents);
(B)
a violation of this chapter or the statute in the provision of licensed home health services, licensed and certified home health services, hospice services, or personal assistance services; and
(C)
a violation of federal requirements in the provision of licensed and certified home health services or licensed and certified hospice services.
(4)
investigates a self-reported incident that includes allegations of abuse, neglect, or exploitation of a client as described in §97.502.
(b)
DADS may conduct a survey for the renewal of a license or the issuance of a branch office or alternate delivery site license.

§97.502  State Agency Investigations of Complaints and Self-Reported Incidents

(a)
This section applies when an alleged victim of abuse, neglect, or exploitation is an agency client and the alleged perpetrator of the abuse, neglect, or exploitation is an agency employee, volunteer, or contractor.
(b)
In this section, facility regulated by DADS means any of the following:
(1)
an inpatient unit and residential unit licensed to provide hospice services to clients admitted to or residing in these units;
(2)
a nursing facility;
(3)
an assisted living facility;
(4)
an adult day care facility;
(5)
an adult foster care facility; and
(6)
a licensed intermediate care facility serving persons with mental retardation and related conditions.
(c)
The Department of Family and Protective Services investigates a complaint or self-reported incident alleging abuse, neglect, or exploitation when:
(1)
the client involved is elderly or disabled; and
(2)
the alleged act occurs outside of a facility regulated by DADS as described in subsection (b) of this section.
(d)
DADS investigates a complaint or self-reported incident alleging abuse, neglect, or exploitation of a client if the alleged act occurs in a facility regulated by DADS as described in subsection (b) of this section. DADS’ investigation may include:
(1)
a visit to the facility;
(2)
an interview with the client, if appropriate; and
(3)
interviews with persons believed to have knowledge of the circumstances.
(e)
DADS investigates a complaint or a self-reported incident alleging abuse, neglect, or exploitation of a child if the alleged act occurs outside of a facility regulated by DADS as described in subsection (b) of this section. DADS’ investigation may include:
(1)
an interview with the child after making a reasonable effort to inform each parent of the nature of the allegation and of the need to interview the child; and
(2)
interviews with persons believed to have knowledge of the circumstances.
(f)
DADS may conduct an interview in private or may include any person DADS determines is necessary.

§97.503  Exemption From a Survey

Except for the investigation of complaints, an agency is exempt from additional surveys by DADS if the agency maintains accreditation status for the applicable services from JCAHO or CHAP.

§97.505  Notice of a Survey

DADS does not announce or give prior notice to an agency of a survey.

§97.507  Agency Cooperation with a Survey

(a)
By applying for or holding a license, an agency consents to entry and survey by a DADS representative to verify compliance with the statute or this chapter.
(b)
An agency must provide the surveyor access to all agency records required by DADS to be maintained by or on behalf of the agency.
(c)
If a surveyor requests an agency record that is stored at a location other than the survey site, the agency must provide the record to the surveyor within eight working hours after the request.
(d)
An agency must provide the surveyor with copies of agency records upon request.
(e)
During a survey, agency staff must not:
(1)
make a false statement that a person knows or should know is false of a material fact about a matter under investigation by DADS;
(2)
willfully interfere with the work of a DADS representative;
(3)
willfully interfere with a DADS representative in preserving evidence of a violation; or
(4)
refuse to allow a DADS representative to inspect a book, record, or file required to be maintained by or on behalf of an agency.
(f)
An agency must provide a DADS representative with a reasonable workspace and a safe workspace, free from hazards, at which to conduct a survey at a parent office, branch office, or alternate delivery site.
(g)
If there is a disagreement between the agency and a DADS representative, the program manager or designee in the designated survey office determines what is reasonable and safe. After consulting with the program manager or designee and obtaining the program manager's agreement, the DADS representative will notify the agency administrator or designee if the requirement in subsection (f) of this section is not met. Within two working hours of this notice the agency must:
(1)
provide a DADS representative with a different workspace at the agency that meets the requirement in subsection (f) of this section; or
(2)
correct the unmet requirement in such a way as to allow the representative to reasonably and safely conduct the survey.
(h)
If an agency willfully refuses to comply with subsection (g) of this section, thereby interfering with the work of the DADS representative, the representative will terminate the survey and recommend enforcement action as described in subsection (i) of this section.
(i)
DADS may assess an administrative penalty without an opportunity to correct for a violation of provisions in this section, or may take other enforcement action to deny, revoke, or suspend a license, if an agency does not cooperate with a survey.

§97.509  Survey of a Branch Office, Alternate Delivery Site, and Services Provided

(a)
If an agency is applying for or renewing a branch office or alternate delivery site license, a survey covers all locations.
(b)
If an agency is applying for a license to provide more than one category of service, a survey covers all provided services of the agency.

§97.521  Requirements for an Initial Survey

(a)
No later than six months after the effective date of an agency's initial license, an agency must:
(1)
admit and provide services to clients as described in subsection (b) of this section; and
(2)
except as provided in subsection (f) of this section, submit a written request for an initial licensure survey to the designated survey office as described in subsection (c) of this section.
(b)
Before submitting a written request to DADS for an initial licensure survey, an agency must admit clients and provide services as described in this subsection. The categories of service on an initial license may include licensed home health services (LHHS), LHHS with home dialysis designation, hospice services, and personal assistance services (PAS).
(1)
When an initial license includes only one category of service, an agency must admit and provide services to at least one client.
(2)
When an initial license includes the LHHS and the PAS categories, an agency must admit and provide LHHS to at least one client.
(3)
When an initial license includes the LHHS and the LHHS with home dialysis designation categories, with or without the PAS category, an agency must admit and provide LHHS with home dialysis designation to at least one client.
(4)
When an initial license includes the hospice services and the PAS categories, an agency must admit and provide hospice services to at least one client.
(5)
When an initial license includes the LHHS and the hospice services categories, with or without the PAS category, an agency must admit and provide LHHS services to at least one client and admit and provide hospice services to at least one client.
(6)
When an initial license includes the LHHS, the LHHS with home dialysis designation, and the hospice services categories, with or without the PAS category, an agency must admit and provide LHHS with home dialysis designation to at least one client. The agency must also admit and provide hospice services to at least one client.
(c)
The agency's written request for an initial survey must be submitted to the designated survey office using DADS Form 2020 Notification of Readiness for Initial Survey. The written request must include the name, date of admission, and the category of service provided to each client admitted for services to demonstrate that the agency has admitted clients and provided services as described in subsection (b) of this section.
(d)
An agency must have the following information available and ready for review by a surveyor upon the surveyor's arrival at the agency:
(1)
a list of clients who are receiving services or who have received services from the agency for each category of service licensed. The list must comply with the requirements of §97.293 of this chapter (relating to Client List and Services);
(2)
the client records for each client admitted during the licensing period before the initial survey;
(3)
all agency policies as required by this chapter; and
(4)
all personnel records of agency employees.
(e)
DADS may propose to deny an application to renew, or revoke or suspend, an initial license for the reasons specified in §97.15(c) of this chapter (relating to Issuance of an Initial License).
(f)
An agency is not required to request an initial survey in accordance with subsection (a)(2) of this section if the agency is exempt from the survey as specified in §97.503 of this subchapter (relating to Exemption From a Survey). To demonstrate that it is exempt, the agency must send the accreditation documentation from JCAHO or CHAP to the DADS designated survey office no later than six months after the effective date of its license.
(g)
If an agency receives written notice of accreditation from JCAHO or CHAP after the agency submits a written request to DADS for an initial licensure survey, the agency may demonstrate that it is exempt from the survey by sending the accreditation documentation to the DADS designated survey office before DADS arrives at the agency to conduct an initial survey.

§97.523  Personnel Requirements for a Survey

(a)
For an initial survey, the administrator or alternate administrator must be present at the entrance conference, available in person or by telephone during the survey, and present in person at the exit conference.
(b)
For a survey other than an initial survey, the administrator or alternate administrator must be available in person or by telephone during the entrance conference and the survey, and must be present in person at the exit conference.
(c)
The supervising nurse or alternate supervising nurse must be available in person or by telephone, if necessary, to provide information unique to the duties and functions of the position during the survey.
(d)
If a required individual is unavailable during the survey process and is not at the agency when the surveyor arrives, the surveyor makes reasonable attempts to contact the individual.
(e)
If a surveyor arrives during regular business hours and the agency is closed, an administrator, alternate administrator, or a designated agency representative must provide the surveyor entry to the agency within two hours after the surveyor's arrival at the agency. The administrator must designate in writing the agency representatives who may grant entry to a surveyor. The agency must comply with notice requirements described in §97.210 of this chapter (relating to Agency Operating Hours).
(f)
If the surveyor is unable to contact a required individual or the agency fails to comply with subsection (e) of this section, the surveyor may recommend enforcement action against the agency.
(g)
If compliance with this section would cause an interruption in client care being provided by the administrator, the alternate administrator, the supervising nurse, or the alternate supervising nurse, the administrator must contact its backup service provider to ensure continued client care.

§97.525  Survey Procedures

(a)
Before beginning a survey, a surveyor holds an entrance conference, as specified in §97.523 (relating to Personnel Requirements for a Survey), to explain the purpose of the survey and the survey process and provides an opportunity to ask questions.
(b)
During a survey, a surveyor:
(1)
conducts at least three home visits to determine an agency’s compliance with licensing requirements;
(2)
reviews any agency records that the surveyor believes are necessary to determine an agency’s compliance with licensing requirements; and
(3)
evaluates an agency's compliance with each standard.
(c)
An agency accredited by CHAP or JCAHO must have the documentation of accreditation available at the time of a survey.
(d)
DADS keeps agency records confidential, except as allowed by Texas Health and Safety Code, §142.009(d).
(e)
A surveyor may remove original agency records from an agency only with the consent of the agency as provided in Texas Health and Safety Code, §142.009(e).

§97.527  Post-Survey Procedures

(a)
After a survey is completed, the surveyor holds an exit conference with the administrator or alternate administrator to inform the agency of the preliminary findings.
(b)
An agency may make an audio recording of the exit conference only if the agency:
(1)
records two tapes simultaneously;
(2)
allows the surveyor to review the tapes; and
(3)
gives the surveyor the tape of the surveyor's choice before leaving the agency.
(c)
An agency may make a video recording of the exit conference only if the surveyor agrees to allow it and if the agency:
(1)
records two tapes simultaneously;
(2)
allows the surveyor to review the tapes; and
(3)
gives the surveyor the tape of the surveyor's choice before leaving the agency.
(d)
An agency may submit additional written documentation and facts after the exit conference only if the agency describes the additional documentation and facts to the surveyor during the exit conference.
(1)
The agency must submit the additional written documentation and facts to the designated survey office within two working days after the end of the exit conference.
(2)
If an agency properly submits additional written documentation, the surveyor may add the documentation to the record of the survey.
(e)
If DADS identifies additional violations or deficiencies after the exit conference, DADS holds an additional face-to-face exit conference with the agency regarding the additional violations or deficiencies.
(f)
DADS provides official written notification of the survey findings to the agency within 10 working days after the exit conference.
(g)
The official written notification of the survey findings includes a statement of violations and instructions for submitting an acceptable plan of correction, and provides an opportunity for an informal review of deficiencies (IRoD).
(1)
If the official written notification of the survey findings declares that an agency is in violation of the statute or this chapter, an agency must follow DADS' instructions included with the statement of violations for submitting an acceptable plan of correction.
(2)
An acceptable plan of correction includes the corrective measures and time frame with which the agency must comply to ensure correction of a violation. If an agency fails to correct each violation by the date on the plan of correction, DADS may take enforcement action against the agency. An agency must correct a violation in accordance with the following time frames:
(A)
A Severity Level B violation that results in serious harm to or death of a client or constitutes a serious threat to the health or safety of a client must be addressed upon receipt of the official written notice of the violations and corrected within two days.
(B)
A Severity Level B violation that substantially limits the agency's capacity to provide care must be corrected within seven days after receipt of the official written notice of the violations.
(C)
A Severity Level A violation that has or had minor or no health or safety significance must be corrected within 20 days after receipt of the official written notice of the violations.
(D)
A violation that is not designated as Severity Level A or Severity Level B must be corrected within 60 days after the date the violation was cited.
(3)
An agency must submit an acceptable plan of correction for each violation or deficiency no later than 10 days after its receipt of the official written notification of the survey findings.
(4)
If DADS finds the plan of correction unacceptable, DADS gives the agency written notice and provides the agency one additional opportunity to submit an acceptable plan of correction. An agency must submit a revised plan of correction no later than 30 days after the agency's receipt of DADS' written notice of an unacceptable plan of correction.
(h)
An acceptable plan of correction does not preclude DADS from taking enforcement action against an agency.
(i)
An agency must submit a plan of correction in response to an official written notification of survey findings that declares a violation or deficiency even if the agency disagrees with the survey findings.
(j)
If an agency disagrees with the survey findings, the agency may request an IRoD and submit additional written information to refute a violation or deficiency to demonstrate compliance in an informal setting.
(1)
An IRoD is available for:
(A)
a violation or deficiency cited during a visit;
(B)
a violation or deficiency that remains uncorrected from a previous visit and is re-cited with no change in findings, as long as the agency has not already had an IRoD for the violation or deficiency from the original visit; and
(C)
a violation or deficiency that remains uncorrected from a previous visit and is re-cited with new findings.
(2)
To request an IRoD, an agency must:
(A)
mail or fax a complete and accurate IRoD request form to the address or fax number listed on the form, which must be postmarked or faxed within 10 days after the date of receipt of the official written notification of the survey findings;
(B)
mail or fax a rebuttal letter and supporting documentation to the address or fax number listed on the IRoD request form and ensure receipt by the DADS Survey and Certification Enforcement Unit within seven days after the postmark or fax date of the IRoD request form; and
(C)
mail or fax a copy of the IRoD request form, rebuttal letter, and supporting documentation to the designated survey office within the same time frames each is submitted to the DADS Survey and Certification Enforcement Unit.
(3)
An agency may not submit information after the deadlines established in paragraph (2)(A) and (B) of this subsection unless DADS requests additional information. The agency's response to DADS' request for information must be received within three working days after the request is made.
(4)
An agency waives its right to an IRoD if the agency fails to submit the required information to the DADS Survey and Certification Enforcement Unit within the required time frames.
(5)
An agency must present sufficient information to the DADS Survey and Certification Enforcement Unit to support the agency's desired IRoD outcome.
(6)
The rebuttal letter and supporting documentation must include:
(A)
the disputed deficiencies or violations;
(B)
the reason the deficiencies or violations are disputed;
(C)
the desired outcome for each disputed deficiency or violation; and
(D)
attachments from client records, applicable policies and procedures, or other supporting documentation or information that directly demonstrates that the deficiency or violation should not have been cited.
(7)
The written decision issued by DADS after the completion of its review is final.