SECTION 557.123. Violations, Complaints, and Disciplinary Actions

(a) Filing of complaints. Any person may complain to HHSC alleging that a person or program has violated the Texas Health and Safety Code, Chapter 242, Subchapter N; Texas Human Resources Code §161.083; or this chapter.

(1) Persons who want to file a complaint against a medication aide, training program, or another person, must notify HHSC by calling 1-800-458-9858 or by writing the Medication Aide Permit Program, Health and Human Services Commission, P.O. Box 149030, Mail Code E-416, Austin, Texas 78714-9030.

(2) Anonymous complaints may be investigated by HHSC if the complainant provides sufficient information.

(b) Investigation of complaints. If HHSC initial investigation determines:

(1) the complaint does not come within HHSC jurisdiction, HHSC advises the complainant and, if possible, refers the complainant to the appropriate governmental agency for handling the complaint;

(2) there are insufficient grounds to support the complaint, HHSC dismisses the complaint and gives written notice of the dismissal to the medication aide or person against whom the complaint has been filed and the complainant; or

(3) there are sufficient grounds to support the complaint, HHSC may propose to deny, suspend, emergency suspend, revoke, or not renew a permit or to rescind program approval.

(c) Disciplinary actions. HHSC may revoke, suspend, or refuse to renew a permit, or reprimand a medication aide for a violation of Texas Health and Safety Code, Chapter 242, Subchapter N; Texas Human Resources Code §161.083; or this chapter. HHSC may suspend a permit in an emergency or rescind HHSC approval for an educational institution to offer a training program if the medication aide or educational institution fails to comply with the requirements in this chapter.

(1) HHSC may place on probation a person whose permit is suspended. HHSC may require the person on probation:

(A) to report regularly to HHSC on matters that are the basis of the probation;

(B) to limit practice to the areas prescribed by HHSC; or

(C) to continue or pursue professional education until the person attains a degree of skill satisfactory to HHSC in those areas that are the basis of the probation.

(2) Before institution of formal proceedings to revoke or suspend a permit or rescind program approval, HHSC gives written notice to the medication aide or program of the facts or conduct alleged to warrant revocation, suspension, or rescission, and the medication aide or program must be given an opportunity, as described in the notice, to show compliance with all requirements of the Texas Health and Safety Code, Chapter 242, Subchapter N; Texas Human Resources Code §161.083; or this chapter. When there is a finding of an alleged act of abuse, neglect, or misappropriation of resident property by a medication aide employed at a Medicaid-certified nursing facility or a Medicare-certified skilled nursing facility, HHSC complies with the hearings process as provided in 42 Code of Federal Regulations §488.335.

(3) If denial, revocation, or suspension of a permit or rescission of program approval is proposed, HHSC gives written notice that the medication aide or program must request, in writing, a hearing within 30 days after receipt of the notice, or the right to a hearing is waived and the permit is denied, revoked, or suspended or the program approval is rescinded.

(4) A hearing is governed by 1 TAC Chapter 357, Subchapter I (relating to Hearings under the Administrative Procedure Act); and 40 TAC Chapter 91 (relating to Hearings under the Administrative Procedure Act).

(5) If an alleged act of abuse, neglect, or misappropriation by a medication aide who also is a certified nurse aide under the provisions of Chapter 556 of this title (relating to Nurse Aides) violates the rules in this chapter and Chapter 556, HHSC complies with the hearing process described in paragraph (4) of this subsection. Through the hearing, determinations will be made on both the permit for medication aide practice and the certification for nurse aide practice.

(d) Denial based on criminal history.

(1) HHSC provides written notice to any person HHSC proposes to deny an application based on the person's criminal history. The written notice must contain, as applicable:

(A) a statement that the person is disqualified from receiving a permit or being examined for a permit because of the person's prior conviction for the offense or offenses specified in the notice, as provided in §557.121(a) and (b) of this chapter (relating to Permitting of Persons with a Criminal Background); or

(B) a statement that:

(i) HHSC's decision to deny the person a permit, or the opportunity to be examined for a permit, will be based on the factors listed in §557.121(b) of this chapter, as provided in §557.121(a) of this chapter; and

(ii) the person has the responsibility to obtain and provide to HHSC evidence regarding the factors listed in §557.121(c) of this chapter within 30 days of receipt of the notice.

(2) If, upon reviewing the evidence provided by the person, HHSC upholds its decision to deny the person, HHSC shall notify the person in writing of:

(A) the reason for the denial or disqualification, including any factors considered under §557.121(a) and (b) of this chapter that served as the basis for denial or disqualification; and

(B) the process for requesting a formal hearing before a State Office of Administrative Hearings administrative law judge.

(3) If HHSC's decision to deny the person is upheld during a formal hearing, HHSC shall notify the person in writing of:

(A) the process for requesting a motion for rehearing to appeal the decision; and

(B) if the decision is upheld upon a motion for rehearing, the process for requesting judicial review.

(e) Suspension or Revocation based on criminal history.

(1) HHSC provides written notice to a permit holder that HHSC proposes to suspend or revoke the permit holder's permit. The written notice must contain, as applicable:

(A) a statement that the permit holder is no longer eligible to have the permit because of the permit holder's prior conviction for the offense or offenses specified in the notice, as provided in §557.121(a) and (b) of this chapter; or

(B) a statement:

(i) that HHSC's decision to suspend or revoke the permit holder's permit will be based on the factors listed in §557.121(c) of this chapter, as provided in §557.121(a) of this chapter; and

(ii) describing the process for the permit holder to request an informal reconsideration opportunity by HHSC.

(2) If, after conducting the informal reconsideration, HHSC upholds its decision to suspend or revoke the permit holder's permit, HHSC shall notify the permit holder in writing of:

(A) the reason for the suspension or revocation including any factors considered under §557.121(a) and (b) of this chapter that served as the basis for suspension or revocation; and

(B) the process for requesting a formal hearing before a State Office of Administrative Hearings administrative law judge.

(3) If HHSC's decision to suspend or revoke the permit holder's permit is upheld during a formal hearing, HHSC shall notify the permit holder in writing of:

(A) the process for requesting a motion for rehearing to appeal the decision; and

(B) if the decision is upheld upon a motion for rehearing, the process for requesting judicial review.

(f) Suspension, revocation, or nonrenewal. If HHSC suspends a permit, the suspension remains in effect until HHSC determines that the reason for suspension no longer exists or HHSC revokes or determines not to renew the permit. HHSC investigates before making a determination and:

(1) during the time of suspension, the suspended medication aide must return his or her permit to HHSC;

(2) if a suspension overlaps a permit renewal date, the suspended medication aide may comply with the renewal procedures in §557.115 of this chapter (relating to Permit Renewal); however, HHSC does not renew the permit until HHSC determines that the reason for suspension no longer exists;

(3) if HHSC revokes or does not renew a permit, a person may reapply for a permit by complying with the requirements and procedures in this chapter at the time of reapplication. HHSC may refuse to issue a permit if the reason for revocation or nonrenewal continues to exist; and

(4) if a permit is revoked or not renewed, a medication aide must immediately return the permit to HHSC.

(g) Complaints of abuse and neglect by medication aides who are issued a permit under Texas Health and Safety Code, Chapter 242, Subchapter N, and employed in a correctional facility, are investigated as described in §557.125(k) of this chapter (relating to Requirements for Corrections Medication Aides).

Source Note: The provisions of this §557.123 adopted to be effective September 24, 2018, 43 TexReg 6328; amended to be effective December 26, 2021, 46 TexReg 9054