Attachment

(1)

facility admission policies;

(2)

a description of the protection of personal funds as described in §19.404 of this subchapter (relating to Protection of Resident Funds);

(3)

the Human Resources Code, Title 6, Chapter 102; or a written list of the rights and responsibilities contained in the Human Resources Code, Title 6, Chapter 102; and

(4)

a written description of the services available through the DADS Office of the State Long Term Care Ombudsman. This information must be made available to each facility by the ombudsman program. Facilities are responsible for reproducing this information and making it available to residents, their families, and legal representatives; and

(5)

a written statement to the resident, the resident's next of kin, or guardian describing the facility's policy for:

(A)

the drug testing of employees who have direct contact with residents; and

(B)

the criminal history checks of employees and applicants for employment; and

(6)

DADS' rules and the facility's policies related to the use of restraint and involuntary seclusion. This information must also be given to the resident's legally authorized representative, if the resident has one.

(1)

upon an oral or written request to the facility, to access all records pertaining to the resident, including clinical records, within 24 hours (excluding weekends and holidays); and

(2)

after receipt of the resident's records for inspection, to purchase photocopies of all or any portion of the records, at a cost not to exceed the community standard, upon request and two workdays advance notice to the facility.

(1)

If the resident refuses treatment, the resident must be informed of the possible consequences.

(2)

If the resident chooses to participate in experimental research, the resident must be fully notified of the research and possible effects of the research. The research may be carried on only with the full written consent of the resident's physician, and the resident.

(3)

Experimental research must comply with Federal Drug Administration regulations on human research as found in 45 Code of Federal Regulations, Part 4b, Subpart A.

(1)

a description of the manner of protecting personal funds, described in §19.404 of this subchapter;

(2)

a posting of names, addresses, and telephone numbers of all pertinent state client advocacy groups such as DADS, the state ombudsman program, the protection and advocacy network, and, in Medicaid-certified facilities, the Medicaid fraud control unit; and

(3)

a statement that the resident may file a complaint with DADS concerning resident abuse, neglect, and misappropriation of resident property in the facility.

(1)

A facility must immediately inform the resident; consult with the resident's physician; and if known, notify the resident's legal representative or an interested family member when there is:

(A)

an accident involving the resident which results in injury and has the potential for requiring physician intervention;

(B)

a significant change in the resident's physical, mental, or psychosocial status (that is, a deterioration in health, mental, or psychosocial status in either life-threatening conditions or clinical complications);

(C)

a need to alter treatment significantly (that is, a need to discontinue an existing form of treatment due to adverse consequences, or to commence a new form of treatment); or

(D)

a decision to transfer or discharge the resident from the facility.

(2)

The facility also must promptly notify the resident and, if known, the resident's legal representative or interested family member when there is:

(A)

a change in room or roommate assignment as described in §19.701(4)(B) of this chapter (relating to Quality of Life); or

(B)

a change in resident rights under federal or state law or regulations as described in subsection (a) of this section.

(3)

The facility must record and periodically update the address and phone number of the resident's family or legal representative, or a responsible party.

(1)

provide the resident with the state-developed notice of rights under §1919 (e)(6) of the Social Security Act (see also §19.402 of this subchapter (relating to Exercise of Rights));

(2)

inform a resident who is entitled to Medicaid benefits, in writing, at the time of admission to the nursing facility or, when the resident becomes eligible for Medicaid of:

(A)

the items and services that are included in nursing facility services provided under the State Plan and for which the resident may not be charged;

(B)

those other items and services that the facility offers and for which the resident may be charged, and the amount of charges for those services;

(3)

inform each resident when changes are made to the items and services specified in paragraphs (2)(A) and (2)(B) of this subsection;

(4)

provide a written description of the requirements and procedures for establishing eligibility for Medicaid, including the right to request an assessment under §1924(c) of the Social Security Act which:

(A)

is used to determine the extent of a couple's nonexempt resources at the time of institutionalization; and

(B)

attributes to the community spouse an equitable share of resources which cannot be considered available for payment toward the cost of the institutionalized spouse's medical care in the process of spending down to Medicaid eligibility levels; and

(5)

prominently display in the facility written information, and provide to residents and potential residents oral and written information about how to apply for and use Medicare and Medicaid benefits, and how to receive funds for previous payments covered by such benefits.

(1)

Licensed-only facilities. Upon written authorization of a resident, the facility may hold, safeguard, manage, and account for the personal funds of the resident deposited with the facility. The facility will act as a fiduciary agent if the facility holds, safeguards, and accounts for the resident's personal funds.

(2)

Medicaid-certified facilities. Upon written authorization of a resident, the facility must hold, safeguard, manage, and account for the personal funds of the resident deposited with the facility, as described in §19.405 of this title (relating to Additional Requirements for Trust Funds in Medicaid-Certified Facilities). The facility will act as a fiduciary agent if the facility holds, safeguards, and accounts for the resident's personal funds.

(1)

the statement describes the resident's rights to select how personal funds will be handled. The following alternatives must be included:

(A)

the resident has the right to manage his financial affairs;

(B)

the facility may not require residents to deposit their personal funds with the facility;

(C)

the facility has an obligation, upon written authorization of a resident, to hold, safeguard, manage, and account for the personal funds of the resident deposited with the facility;

(D)

the resident has a right to apply to the Social Security Administration to have a representative payee designated for federal or state benefits to which he may be entitled; and

(E)

except when subparagraph (D) of this paragraph applies, the resident has a right to designate in writing another person to manage personal funds;

(2)

the statement notes, when applicable, that any charge for the facility handling a Medicaid recipient's personal funds is included in the facility's basic rate; and

(3)

the statement advises the resident that the facility must have written permission from the resident, responsible party, or legal representative to handle his personal funds.

(1)

copies of release forms signed and dated by each private-pay resident or responsible party whose funds are commingled. The facility must include in the release forms permission for the facility to maintain trust fund records of private-pay residents in the same manner as the Medicaid recipient's trust funds. The release forms must:

(A)

be secured from the private-pay residents upon admission or at the time of request for trust fund services; and

(B)

include a provision allowing inspection of the private-pay resident's trust fund records by the agencies referenced in this subsection; and

(2)

legible copies of the trust fund records of private-pay residents whose funds are commingled. The facility must keep these records in the same manner as the financial records of Medicaid recipients as specified in this section.

(1)

resident's name;

(2)

identification of resident's representative payee, responsible party, or legal representative, if any;

(3)

admission date;

(4)

resident's earned interest, if any;

(5)

documentation for all transactions. Facility staff must document, on the resident's trust-fund ledger or deposit/withdrawal document, the date and amount of each deposit and withdrawal, the name of the person who accepted the withdrawn funds, and the balance after each transaction. Each withdrawal must be signed by the resident on the trust-fund ledger or deposit/withdrawal document. If the resident cannot sign, the transaction must be signed by at least one witness. This witness can be any person except the person(s) responsible for accounting for the trust funds, that person's supervisor, or the person(s) who accepts the withdrawn funds; and

(6)

receipts for purchases and payments, including cash-register tapes or sales statements from a seller. Receipts are required when the purchase is made by the facility or someone other than the resident, responsible party, legal representative, or individual, other than facility personnel, authorized in writing by the resident, and when the purchase is for items costing more than one dollar. Receipts are not required when purchase is made by the resident, responsible party, legal representative, or individual, other than facility personnel, authorized in writing by the resident, or when the item(s) purchased costs one dollar or less. Required receipts must contain:

(A)

the resident's name;

(B)

the date the receipt was written or created;

(C)

the amount of money spent for the resident;

(D)

the specific item(s) purchased with the trust-fund money;

(E)

the name of the business from which the purchase was made; and

(F)

the signature of the resident. If the signature of the resident cannot be obtained, the signature of a witness as described in paragraph (5) of this subsection must be obtained; and the facility or DHS staff must be able to determine, at a future audit date, the witness's name, address, and relationship to the resident or facility. If the disbursement has been prior authorized as evidenced by the resident's or witness's signature and date on the trust-fund ledger or deposit/withdrawal documents, the signature is not required on the receipt.

(1)

when the amount in the resident's account reaches $200 less than SSI resource limit for one person, specified in §1611(a)(3)(B) of the Social Security Act; and

(2)

that, if the amount in the account, in addition to the value of the resident's other nonexempt resources, reaches the SSI resource limit for one person, the resident may lose eligibility for Medicaid or SSI.

(1)

the facility must set up a trust fund for the deceased recipient or deposit the money to already existing accounts;

(2)

once DHS-designated regional staff verify that the money owed the deceased recipient is on hand and held in trust, DHS considers the account cleared if the facility supplies DHS with a notarized affidavit outlining the facility's intention. The affidavit must contain:

(A)

the recipient's name;

(B)

the amount of money being held;

(C)

the facility's efforts to locate the responsible party or heirs;

(D)

a facility statement acknowledging that this money is not the property of the facility, but the property of the deceased person's estate; and

(E)

a statement that the facility will hold the money in trust until the legal heir or responsible party is located or the money escheats to the state. Money held in trust in the facility is subject to future audit and will be reviewed each time the facility is audited; and

(3)

facilities choosing not to hold this money in trust for Medicaid recipients may send the money to the Texas Department of Human Services, Fiscal Division, P.O. Box 149055, Austin, Texas 78714-9055, at any time before the money escheats to the state. The money must be identified as escheat money. The facility must include the notarized affidavit described in paragraph (2) of this subsection with the money for identification.

(1)

The amount of a surety bond must equal the average monthly balance of all the facility's resident trust fund accounts for the 12-month period preceding the bond issuance or renewal date.

(2)

Resident trust fund accounts are specific only to the single facility purchasing a resident trust fund surety bond.

(3)

If a facility employee is responsible for the loss of funds in a resident's trust fund account, the resident, the resident's family, and the resident's legal representative are not obligated to make any payments to the facility that would have been made out of the trust fund had the loss not occurred.

(1)

nursing services as required in §19.1001 of this title (relating to Nursing Services);

(2)

dietary services as required in §19.1101 of this title (relating to Dietary Services);

(3)

an activities program as required in §19.702 of this title (relating to Activities);

(4)

room and bed maintenance services;

(5)

routine personal hygiene items and services as required to meet the needs of residents, including, but not limited to:

(A)

hair hygiene supplies;

(B)

comb;

(C)

brush;

(D)

bath soaps, disinfecting soaps, or specialized cleansing agents when indicated to treat special skin problems or to fight infection;

(E)

razor;

(F)

shaving cream;

(G)

toothbrush;

(H)

toothpaste;

(I)

denture adhesive;

(J)

denture cleaner;

(K)

dental floss;

(L)

moisturizing lotion;

(M)

tissues;

(N)

cotton balls;

(O)

cotton swabs;

(P)

deodorant;

(Q)

incontinent care and supplies, to include, but not limited to cloth or disposable briefs (diapers), to be provided as follows:

(i)

if attaining or maintaining the resident's highest practicable physical, mental, or psychosocial well-being necessitates the use of briefs (diapers), the facility must provide them. The type of brief (diaper) provided should be based on an individual assessment of the resident's medical and psychosocial condition.

(ii)

If the family makes written request to the facility to put briefs (diapers) on the recipient, and the attending physician and director of nurses (DON) document in the clinical record that there is no medical or psychosocial need for briefs (diapers), the recipient, responsible party, or family may be billed for the briefs (diapers), or the recipient's personal funds may be used to purchase the items, or both;

(R)

sanitary napkins and related supplies;

(S)

towels;

(T)

washcloths;

(U)

hospital gowns;

(V)

over-the-counter drugs;

(W)

hair and nail hygiene services;

(X)

bathing; and

(Y)

personal laundry; and

(6)

medically-related social services as required in §19.703 of this title (relating to Social Services General Requirements).

(1)

telephone;

(2)

television and/or radio for personal use;

(3)

personal comfort items, including smoking materials, notions and novelties, and confections;

(4)

cosmetics and grooming items and services in excess of those for which payment is made under Medicare or Medicaid;

(5)

personal clothing;

(6)

personal reading material;

(7)

gifts purchased on behalf of a resident;

(8)

flowers and plants;

(9)

social events and entertainment offered outside the scope of the activities program, provided under §19.702 of this title (relating to Activities);

(10)

noncovered special care services, such as privately hired nurses and aides;

(11)

private room, except when therapeutically required, such as isolation for infection control; and

(12)

specially-prepared or alternative food requested instead of the food generally prepared by the facility, as required in §19.1101 of this title (relating to Dietary Service).

(1)

not charge a resident, nor his representative, for any item or service not requested by the resident;

(2)

not require a resident, nor his representative, to request any item or service as a condition of admission or continued stay; and

(3)

inform the resident or his representative, when he requests an item or service for which a charge will be made, that there will be a charge for the item or service and the amount of the charge.

(1)

balance at the beginning of the statement period;

(2)

total deposits and withdrawals;

(3)

interest earned, if any;

(4)

identification number and location of any account in which the recipient's personal funds have been deposited; and

(5)

ending balance.

(1)

Charges for checks, deposit slips, and services for pooled checking accounts are the responsibility of the facility and may not be charged to the recipient, family, or responsible party. These costs, however, may be reported as allowable costs by the facility on its cost report.

(2)

Bank service charges and charges for checks and deposit slips may be deducted from the individual checking accounts if it is the recipient's written, individual choice to have this type of account to preserve his dignity and independence.

(3)

Bank fees on individual accounts established solely for the convenience of the facility are the responsibility of the facility and may not be charged to the recipient, family, or responsible party. However, the facility may report these costs as allowable costs on its cost report.

(4)

The facility may not charge the recipient, family, or responsible party for the administrative handling of either type of account. These costs may be reported as allowable costs by the facility on its cost report.

(5)

If the facility places any part of the resident's money in savings accounts, certificates of deposit, or any other plan whereby interest or other benefits are accrued, the facility must distribute the interest or benefit to participating residents on an equitable basis. If pooled accounts are used, interest must be prorated on the basis of actual earnings or end-of-quarter balances.

(1)

Personal funds held in the facility. Upon a Medicaid recipient's request, or transfer or discharge, the facility must return to the recipient, the representative payee, responsible party, or the legal representative the full balance of the recipient's personal funds that the facility has received for holding, safeguarding, and accounting. Because funds held in the facility are usually small amounts, the facility is expected to meet this requirement during normal business hours at the time of request, transfer, or discharge, whichever occurs first. Response to requests received during hours other than normal business hours must be made immediately at the beginning of the next normal business hours. For purposes of this paragraph, normal business hours are 8:00 a.m. to 5:00 p.m. Monday through Friday, excluding national holidays.

(2)

Personal funds held outside the facility. Upon request or if a recipient is transferred or discharged, the facility must, within five business days, return to the recipient, representative payee, responsible party, or the legal representative the full balance of a recipient's personal funds that the facility has deposited in an account, including any interest accrued.

(1)

choose and retain a personal attending physician, subject to that physician's compliance with the facility's standard operating procedures for physician practices in the facility;

(2)

be fully informed in advance about care and treatment and of any changes in that care or treatment that may affect the resident's well-being; and

(3)

unless adjudged incompetent or otherwise found to be incapacitated under the laws of the State of Texas, participate in planning care and treatment or changes in care and treatment. See §19.419 of this title (relating to Directives and Durable Powers of Attorney).

(1)

A facility must not require recipients to purchase supplies or services, including pharmaceutical supplies or services, from the facility itself or from any particular vendor. The recipient has the right to be informed of prices before purchasing any item or services from the facility, except in an emergency (see §19.1502(b)(3) of this title (relating to Choice of Pharmacy Provider)).

(2)

The facility must furnish Medicaid recipients with complete information about available Medicaid services, how to obtain these services, their rights to freely choose service providers as specified in this subsection and the right to request a hearing before the Texas Department of Human Services (DHS) if the right to freely choose providers has been abridged without due process.

(A)

the resident is transferred to another health care institution;

(B)

record release is required by law; or

(C)

during surveys.

(A)

accommodations as described in §19.1701 of this title (relating to General Requirements);

(B)

medical treatment. The facility must provide privacy to each resident during examinations, treatment, case discussions, and consultations. Staff must treat these matters confidentially;

(C)

personal care;

(D)

access and visitation as described in §19.413 of this title (relating to Access and Visitation Rights);

(E)

governmental searches are permitted only if there exists probable cause to believe an illegal substance or activity is being concealed. Administrative searches by the appropriate entity, such as the fire inspector, are allowed only for limited purposes, but such searches would not ordinarily extend to the resident's personal belongings. The Texas Department of Human Services (DHS) and the nursing facility must provide for and allow residents their individual freedoms. State statutes authorize inspections of the nursing facility but do not authorize inspection of those areas in which an individual has a reasonable expectation of privacy. Any direct participation by DHS personnel in an inspection of "the contents of residents' personal drawers and possessions," is in violation of federal and state law; and

(F)

the resident has the right to privacy for meetings with family and resident groups.

(1)

voice grievances without discrimination or reprisal. These grievances include those with respect to treatment which has been furnished as well as that which has not been furnished;

(2)

prompt efforts by the facility to resolve grievances the resident may have, including those with respect to the behavior of other residents; and

(3)

notify state agencies of complaints against a facility. Complaints will be acknowledged by the staff of the agency that receives the complaint. All complaints will be investigated, whether oral or written.

(1)

makes a complaint or files a grievance concerning the facility;

(2)

reports a violation of law, including a violation of laws or regulations regarding nursing facilities; or

(3)

initiates or cooperates in an investigation or proceeding of a governmental entity relating to care, services, or conditions at the nursing facility.

(1)

an employee, resident, or other person because the employee, resident, or other person files a complaint, presents a grievance, or otherwise provides in good faith information relating to the misuse of a restraint or involuntary seclusion at the facility; or

(2)

a resident because someone on behalf of the resident files a complaint, presents a grievance, or otherwise provides in good faith information relating to the misuse of a restraint or involuntary seclusion at the facility.

(1)

the Medicaid vendor payment has been accepted by the nursing facility; or

(2)

the nursing facility has been notified by the Texas Department of Human Services (DHS) about an individual's eligibility for Medicaid.

(1)

notification of eligibility for nursing home coverage;

(2)

notification of correction of applied income (see also §19.2316(f) of this title (relating to Collection of Applied Income) which specifies procedures concerning applied income refunds at the time of discharge); or

(3)

receipt of any vendor payment from DHS for any covered period.

(A)

the facility has documented the need or desire for work in the plan of care;

(B)

the plan specifies the nature of the services performed and whether the services are voluntary or paid;

(C)

compensation for paid services is at or above prevailing rates; and

(D)

the resident agrees to the work arrangement described in the plan of care.

(1)

in Medicaid-certified facilities, a representative of the Secretary of Health and Human Services;

(2)

a representative of the State of Texas;

(3)

the resident's individual physician;

(4)

a representative of the Office of the State Long Term Care Ombudsman (the Office), as described in §85.401(r) of this title (relating to Long-Term Care Ombudsman Program);

(5)

a representative of Advocacy, Incorporated, which is responsible for the protection and advocacy system for developmentally disabled individuals established under the Developmental Disabilities Assistance and Bill of Rights Act, part C;

(6)

a representative of Advocacy, Incorporated, which is responsible for the protection and advocacy system for mentally ill individuals established under the Protection and Advocacy for Mentally Ill Individuals Act;

(7)

subject to the resident's right to deny or withdraw consent at any time, immediate family or other relatives of the resident; and

(8)

subject to reasonable restrictions and the resident's right to deny or withdraw consent at any time, others who are visiting with the consent of the resident.

(1)

to the medical and social records of a resident, including an incident report involving the resident, if the certified ombudsman or staff person of the Office has the consent of the resident or the legally authorized representative of the resident;

(2)

to the medical and social records of a resident 60 years of age or older, including an incident report involving the resident, in accordance with the Older Americans Act, §712(b); and

(3)

to the administrative records, policies, and documents of the facility to which the facility residents or general public have access.

(1)

prior to admission to the facility, the primary physician, who has been providing care to the child, has discussed advance directives with the family or guardian and has provided documentation of this discussion to the facility; and

(2)

the decision made by the family or guardian regarding advance directives is addressed in the comprehensive care plan (see §19.802 of this title (relating to Comprehensive Care Plans)).

(1)

when a competent individual chooses to allow another to act for him, such as with a Durable Power of Attorney;

(2)

when the resident has been adjudicated to be incompetent by a court of law and a guardian has been appointed; or

(3)

when the physician has determined that, for medical reasons, the resident is incapable of understanding and exercising such rights. The Health and Safety Code, Chapter 313, Consent to Medical Treatment, provides guidance under certain circumstances when a resident is comatose, incapacitated, or otherwise mentally or physically incapable of communication.

(1)

the relationship of the resident to the person assuming his rights and responsibilities;

(2)

the authority allowing the responsible person to act for the resident;

(3)

resident assessments, care plans, and progress notes that address the resident's inability to exercise his rights and responsibilities; and

(4)

assurance that the resident who is mentally capable of understanding and exercising his rights, but physically incapable of doing so, receives interventions which facilitate the exercise of his rights.

(1)

resident's comatose state, incapacity, or other mental or physical inability to communicate;

(2)

proposed medical treatment or decision;

(3)

periodic assurance that there has been no essential change in the resident's mental function; and

(4)

reevaluation whenever a significant change in resident status occurs or for orders that impact on resident rights (such as "No CPR").

(1)

a resident of a skilled nursing facility (SNF) from the distinct part of the facility that is an SNF to a part of the facility that is not an SNF, or

(2)

a resident of a nursing facility from the distinct part of the facility that is a nursing facility to a distinct part of the facility that is an SNF.

(1)

If a resident has capacity to request AEM and has not been judicially declared to lack the required capacity, only the resident may request AEM, notwithstanding the terms of any durable power of attorney or similar instrument.

(2)

If a resident has been judicially declared to lack the capacity required to request AEM, only the guardian of the resident may request AEM.

(3)

If a resident does not have capacity to request AEM and has not been judicially declared to lack the required capacity, only the legal representative of the resident may request AEM.

(A)

A resident's physician makes the determination regarding the capacity to request AEM. Documentation of the determination must be made in the resident's clinical record.

(B)

When a resident's physician determines the resident lacks capacity to request AEM, a person from the following list, in order of priority, may act as the resident's legal representative for the limited purpose of requesting AEM:

(i)

a person named in the resident's medical power of attorney or other advance directive;

(ii)

the resident's spouse;

(iii)

an adult child of the resident who has the waiver and consent of all other qualified adult children of the resident to act as the sole decision-maker;

(iv)

a majority of the resident's reasonably available adult children;

(v)

the resident's parents; or

(vi)

the individual clearly identified to act for the resident by the resident before the resident became incapacitated or the resident's nearest living relative.

(1)

Consent to AEM may be given only by:

(A)

the other resident or residents in the room;

(B)

the guardian of the other resident, if the resident has been judicially declared to lack the required capacity; or

(C)

the legal representative of the other resident, determined by following the same procedure established under (d)(3) of this section.

(2)

Another resident in the room may condition consent on:

(A)

pointing the camera away from the consenting resident, when the proposed electronic monitoring is a video surveillance camera; and

(B)

limiting or prohibiting the use of an audio electronic monitoring device.

(3)

AEM must be conducted in accordance with any limitation placed on the monitoring as a condition of the consent given by or on behalf of another resident in the room. The resident's roommate, their guardian, or legal representative assumes responsibility for assuring AEM is conducted according to the designated limitations.

(4)

If AEM is being conducted in a resident's room, and another resident is moved into the room who has not yet consented to AEM, the monitoring must cease until the new resident, or the resident's guardian or legal representative, consents.

(1)

Anyone conducting AEM must post and maintain a conspicuous notice at the entrance to the resident's room. The notice must state that the room is being monitored by an electronic monitoring device.

(2)

The resident, or the resident's guardian or legal representative, must pay for all costs associated with conducting AEM, including installation in compliance with life safety and electrical codes, maintenance, removal of the equipment, posting and removal of the notice, or repair following removal of the equipment and notice, other than the cost of electricity.

(3)

The facility must meet residents' requests to have a video camera obstructed to protect their dignity.

(4)

The facility must make reasonable physical accommodation for AEM, which includes providing:

(A)

a reasonably secure place to mount the video surveillance camera or other electronic monitoring device; and

(B)

access to power sources for the video surveillance camera or other electronic monitoring device.

(1)

require an electronic monitoring device to be installed in a manner that is safe for residents, employees, or visitors who may be moving about the room, and meets all local and state regulations;

(2)

require AEM to be conducted in plain view;

(3)

place a resident in a different room to accommodate a request for AEM.

(1)

refuses to permit a resident, or the resident's guardian or legal representative, to conduct AEM;

(2)

refuses to admit an individual or discharges a resident because of a request to conduct AEM;

(3)

discharges a resident because covert electronic monitoring is being conducted by or on behalf of the resident; or

(4)

violates any other provision related to AEM.

(1)

A person who is conducting electronic monitoring on behalf of a resident is considered to have viewed or listened to a tape or recording made by the electronic monitoring device on or before the 14th day after the date the tape or recording is made.

(2)

If a resident, who has capacity to determine that the resident has been abused or neglected and who is conducting electronic monitoring, gives a tape or recording made by the electronic monitoring device to a person and directs the person to view or listen to the tape or recording to determine whether abuse or neglect has occurred, the person to whom the resident gives the tape or recording is considered to have viewed or listened to the tape or recording on or before the seventh day after the date the person receives the tape or recording.

(3)

A person is required to report abuse based on the person's viewing of or listening to a tape or recording only if the incident of abuse is acquired on the tape or recording. A person is required to report neglect based on the person's viewing of or listening to a tape or recording only if it is clear from viewing or listening to the tape or recording that neglect has occurred.

(4)

If abuse or neglect of the resident is reported to the facility and the facility requests a copy of any relevant tape or recording made by an electronic monitoring device, the person who possesses the tape or recording must provide the facility with a copy at the facility's expense. The cost of the copy must not exceed the community standard. If the contents of the tape or recording are transferred from the original technological format, a qualified professional must do the transfer.

(5)

A person who sends more than one tape or recording to DHS must identify each tape or recording on which the person believes an incident of abuse or evidence of neglect may be found. Tapes or recordings should identify the place on the tape or recording that an incident of abuse or evidence of neglect may be found.

(A)

(NURSING FACILITY NAME) has a vital interest in maintaining a safe, healthy, and efficient working environment. Being under the influence of a drug on the job poses serious safety and health risks to the user, co-workers, and residents. The use, sale, purchase, transfer, or possession of an illegal drug in the workplace poses unacceptable risks for safe, healthy, and efficient operations.

(B)

(NURSING FACILITY NAME) has the obligation to maintain a safe, healthy and efficient workplace for all of its employees and residents, and to protect the facility's property, information, equipment, operations, and reputation.

(C)

(NURSING FACILITY NAME) recognizes its obligation to its residents to provide services that are free of the influence of illegal drugs and endeavors through this policy to provide drug-free services.

(D)

(NURSING FACILITY NAME) complies with federal and state rules, regulations, or laws that relate to the maintenance of a workplace free from illegal drugs.

(E)

All employees are required to abide by the terms of this policy and to notify management of any criminal drug statute conviction for a violation that occurred in the workplace no later than five days after such conviction.

(A)

Facility premises — All property of (NURSING FACILITY NAME) including, but not limited to, the offices, facilities, and surrounding areas on (NURSING FACILITY NAME)-owned or -leased property, parking lots, and storage areas. The term also includes (NURSING FACILITY NAME)-owned or -leased vehicles and equipment.

(B)

Drug testing — The scientific analysis of urine, blood, breath, saliva, hair, tissue, and other specimens for detecting a drug.

(C)

Illegal drug — Any drug that is not legally obtainable. Examples of illegal drugs are marijuana, cocaine, heroin, methamphetamines, and phencyclidine (PCP).

(D)

Legal drug — Any prescribed drug or over-the-counter drug that has been legally obtained and is being used for the purpose for which it was prescribed or manufactured.

(E)

Reasonable belief — A belief based on facts sufficient to lead a prudent person to conclude that a particular employee is unable to perform his or her job duties due to drug impairment. Such inability to perform may include, but not be limited to, decreases in the quality or quantity of the employee's productivity, judgment, reasoning, concentration and psychomotor control, and marked changes in behavior. Accidents, deviations from safe working practices, and erratic conduct indicative of impairment are examples of "reasonable belief" situations.

(F)

Under the influence — A condition in which a person is affected by a drug in any detectable manner. The symptoms of influence are not confined to those consistent with misbehavior or to obvious impairment of physical or mental ability, such as slurred speech or difficulty in maintaining balance. A determination of being under the influence can be established by a professional opinion; a scientifically valid test, such as urinalysis or blood analysis; and in some cases by the opinion of a layperson.

(A)

Management personnel are to be trained to:

(i)

detect the signs and behavior of employees who may be using drugs in violation of this policy; and

(ii)

intervene in situations that may involve violations of this policy.

(B)

Employees are to be informed of the provisions of this policy.

(A)

Legal drugs. (NURSING FACILITY NAME) reserves the right at all times to judge the effect that a legal drug may have on an employee's job performance and to restrict the employee's work activity or presence at the workplace accordingly.

(B)

Illegal drugs. The use, sale, purchase, transfer, or possession of an illegal drug by any employee while on (NURSING FACILITY NAME) premises or while performing (NURSING FACILITY NAME) business is prohibited.

(A)

Any employee who possesses, distributes, sells, attempts to sell, or transfers illegal drugs on (NURSING FACILITY NAME) premises or while on (NURSING FACILITY NAME) business will be subject to immediate discharge.

(B)

Any employee found through drug testing to have in his or her body a detectable amount of an illegal drug will be subject to discipline up to and including discharge. An employee may be offered a one-time opportunity to enter and successfully complete a rehabilitation program, approved by (NURSING FACILITY NAME), at the employee's expense. During rehabilitation, the employee will be subject to unannounced drug testing. Upon return to work from rehabilitation, the employee may be subject to unannounced drug testing at (NURSING FACILITY NAME) expense for a period of 12 months. Any employee whose test is confirmed as positive during or following rehabilitation will be subjected to immediate discharge.

(A)

All applicants for employment, including applicants for part-time and seasonal positions and applicants who are former employees, are subject to drug testing.

(B)

If an applicant refuses to take a drug test, or if evidence of the use of illegal drugs by an applicant is discovered, either through testing or other means, the pre-employment process will be terminated.

(C)

An applicant must pass the drug test to be considered for employment.

(D)

An applicant will be provided written notice of this policy and, by signature, will be required to acknowledge receipt and understanding of the policy before being tested.

(A)

(NURSING FACILITY NAME) will notify employees of this policy by:

(i)

providing them with a copy of the policy and obtaining written acknowledgement that the policy has been received and read.

(ii)

announcing the policy in written communications and making presentations at employee meetings.

(B)

(NURSING FACILITY NAME) will perform drug testing:

(i)

of any employee who exhibits "reasonable belief" behavior;

(ii)

of each employee who has direct contact with residents annually;

(iii)

of any employee who is subject to drug testing pursuant to federal or state rules, regulations, or laws;

(iv)

on a random basis of any employee.

(C)

An employee's consent to submit to drug testing is required as a condition of employment and the employee's refusal to consent may result in disciplinary action, including discharge, for a first refusal or any subsequent refusal.

(D)

An employee who is tested in a "reasonable belief" situation may be suspended pending receipt of written test results and inquiries that may be required.

(A)

An applicant or employee whose drug test was positive will have an opportunity to explain why the positive finding could have resulted from a cause other than drug use. (NURSING FACILITY NAME) will judge whether the employee's explanation merits further inquiry.

(B)

An applicant or employee whose drug test is reported positive will be offered the opportunity to:

(i)

obtain and independently test, at their expense, the remaining portion of the urine specimen that yielded the positive result; and

(ii)

obtain the written test result and submit it to an independent medical review, at their expense.

(C)

During an appeal and any resulting inquiries, the pre-employment selection process for an applicant will be placed on hold, and the employment status of an employee may be suspended. An employee who is suspended pending appeal may use any available annual leave to remain in an active pay status. If the employee has no annual leave or chooses not to use it, the suspension will be without pay.