SECTION 510.81. Survey and Investigation Procedures

(a) Routine surveys. The department may conduct a survey of a facility prior to the issuance or renewal of a license.

(1) A hospital is not subject to routine surveys subsequent to the issuance of the initial license while the hospital maintains:

(A) certification under Title XVIII of the Social Security Act, 42 United States Code (USC), §1395 et seq; or

(B) accreditation by the Joint Commission on Accreditation of Healthcare Organizations or by the American Osteopathic Association.

(2) The department may conduct a survey of a hospital exempt from an annual licensing survey under paragraph (1) of this subsection before issuing a renewal license to the hospital if the certification or accreditation body has not conducted an on-site survey of the hospital in the preceding three years and the department determines that a survey of the hospital by the certification or accreditation body is not scheduled within 60 days.

(b) Complaint investigations.

(1) Complaint investigations are generally unannounced and are conducted to ensure compliance of the facility with the provisions of Health and Safety Code (HSC), Chapter 577, this chapter, special license conditions, or orders of the commissioner of health (commissioner).

(2) Complaints received by the department concerning abuse and neglect, or illegal, unprofessional, or unethical conduct will be investigated or referred in accordance with §134.46(d) of this title (relating to Abuse and Neglect Issues).

(3) Complaint investigations are coordinated with the federal Centers for Medicare and Medicaid Services and its agents responsible for the survey of hospitals to determine compliance with the conditions of participation under Title XVIII of the Social Security Act, (42 USC, §1395 et seq), so as to avoid duplicate investigations.

(4) If an individual wishes to report an alleged violation of the Act or this chapter, the individual shall notify the department by telephone at [phone] or by writing the department at 1100 West 49th Street, Austin, Texas 78756-3199, by personal visit, or electronic medium. The department may notify the parties to a complaint of the status of the complaint.

(c) Resurvey.

(1) Resurveys may be conducted by the department if a facility applies for the reissuance of its license after the suspension or revocation of the facility's license, the assessment of administrative or civil penalties, or the issuance of an injunction against the facility for violations of HSC Chapter 577, this chapter, a special license condition, or an order of the commissioner.

(2) A resurvey may be conducted to ascertain compliance with either health or construction requirements or both.

(d) General.

(1) The department may make any survey, or investigation that it considers necessary. A department representative(s) may enter the premises of a facility at any reasonable time to make a survey or an investigation to ensure compliance with or prevent a violation of HSC, Chapter 577, this chapter, an order or special order of the commissioner, a special license provision, a court order granting injunctive relief, or other enforcement procedures. Ensuring compliance includes permitting photocopying of any records or other information by or on behalf of the department as necessary to determine or verify compliance with the statute or rules adopted under the statute, except that the department may not photocopy, reproduce, remove or dictate from any part of the root cause analysis or action plan required under §134.47 of this title (relating to Patient Safety Program).

(2) The department representative(s) is entitled to access to all books, records, or other documents maintained by or on behalf of the facility to the extent necessary to enforce HSC, Chapter 577, this chapter, an order or special order of the commissioner, a special license provision, a court order granting injunctive relief, or other enforcement procedures. The department shall maintain the confidentiality of facility records under federal or state law.

(3) By applying for or holding a facility license, the facility consents to entry and survey or investigation of the facility by the department in accordance with HSC, Chapter 577 and this chapter.

(e) Survey and investigation protocol.

(1) The department representative(s) shall hold a conference with the facility administrator or designee before beginning the on-site survey or investigation to explain the nature, scope, and estimated time schedule of the survey or investigation.

(2) The department representative(s) may conduct interviews with any person with knowledge of the facts.

(3) The department representative(s) shall inform the facility administrator or designee of the preliminary findings of the survey or investigation and shall give the person a reasonable opportunity to submit additional facts or other information to the department representative in response to those findings.

(4) Following a survey or investigation of a facility by the department, the department representative(s) shall hold an exit conference with the facility administrator or designee and other invited staff and provide the following to the facility administrator or designee:

(A) the nature of the survey or investigation;

(B) an overview of the findings regarding alleged violations or deficiencies identified by the department representative(s);

(C) identity of any records that were duplicated;

(D) if there are no deficiencies found, a verbal statement indicating this fact.

(5) If deficiencies are cited, the facility shall provide a plan of correction (POC) to the department either at the time of the exit conference or within 10 calendar days following the facility's receipt of a statement of deficiencies (SOD).

(A) The POC shall include the facility's planned action to correct the deficiency and the expected completion date. The POC shall be specific and realistic, stating exactly how the deficiency was or will be corrected. The POC must be signed by the administrator or their designee.

(B) A facility may refute the accuracy of a cited deficiency or survey finding.

(i) Objections may be recorded on the SOD form, however, a POC is still required to be submitted; or

(ii) A facility may record an objection on the SOD form and not submit a POC, however, the facility must submit a convincing argument and documented evidence that the cited deficiency or survey finding is invalid.

(iii) Should the department agree with the supporting documentation, the cited deficiency or survey finding shall be deleted from the SOD form.

(iv) Should the department sustain the cited deficiency, the department will inform the facility in writing that a POC is required. The facility shall submit a POC to the department within 10 calendar days of the facility's receipt of the department's decision.

(6) The department representative(s) shall inform the administrator or their designee of the facility's right to an informal administrative review when there is disagreement with the representative's findings and recommendations or when additional information bearing on the findings is available.

(7) If the department determines that the POC is not acceptable, the department shall notify the facility in writing that it is responsible to provide the department an acceptable POC. The facility shall submit the new POC within 10 calendar days of the facility's receipt of the department's written notice.

(8) Responses to the department may be submitted by facsimile.

(9) The facility shall come into compliance by the completion date provided on the POC.

(10) The department may verify the correction of deficiencies either in writing or by an on-site survey or investigation.

(11) Acceptance of a POC does not preclude the department from taking enforcement action under §134.83 of this title (relating to Enforcement).

(12) Facility complaints against a department representative shall be submitted in accordance with §134.82 of this title (relating to Complaint Against a Texas Department of Health Representative).

(f) Release of information by the department.

(1) Upon written request, the department shall provide information on the identity of each department representative conducting, reviewing, or approving the results of the survey or investigation, and the date on which the department representative acted on the matter.

(2) All information and materials obtained or compiled by the department in connection with a complaint and investigation concerning a facility licensed under this chapter are confidential and not subject to disclosure, discovery, subpoena, or other means of legal compulsion for their release to anyone other than the department or its employees or agents involved in the enforcement action except that this information may be disclosed to:

(A) persons involved with the department in the enforcement action against the facility;

(B) the facility that is the subject of the enforcement action, or the facility's authorized representative;

(C) appropriate state or federal agencies that are authorized to inspect, survey, or investigate licensed mental facility services;

(D) law enforcement agencies; and

(E) persons engaged in bona fide research, if all individual-identifying information and information identifying the facility has been deleted.

(3) The following information is subject to disclosure in accordance with Government Code, §552.001 et seq.

(A) a notice of alleged violation against the facility, which notice shall include the provisions of law which the facility is alleged to have violated, and the nature of the alleged violation;

(B) the pleadings in the administrative proceeding; and

(C) final decision or order by the department.

Source Note: The provisions of this §510.81 adopted to be effective January 1, 2004, 28 TexReg 5154; amended to be effective May 9, 2004, 29 TexReg 4159; transferred effective June 1, 2019, as published in the Texas Register May 17, 2019, 44 TexReg 2469