SECTION 565.47. Amelioration

(a) In lieu of requiring payment for an administrative penalty imposed against a program provider in accordance with §565.45 of this chapter (relating to Administrative Penalties), the Texas Health and Human Services Commission (HHSC) may give the program provider the opportunity for amelioration in accordance with this section.

(b) HHSC does not give a program provider the opportunity for amelioration:

(1) more than three times in a two-year period;

(2) more than one time in a two-year period for the same or similar violation;

(3) for a critical violation that is an immediate threat; or

(4) for the actions or failures to act described in §565.45 of this chapter.

(c) HHSC gives a program provider the opportunity for amelioration in the notice required by 40 TAC §49.535(c) (relating to Administrative Penalties in the HCS and TxHmL Programs). If the program provider does not notify HHSC that the program provider chooses amelioration within the required period described in the notice, the program provider forfeits the opportunity to choose amelioration and HHSC requires the program provider to pay the administrative penalty in accordance with §565.45 of this chapter.

(d) If a program provider chooses amelioration in accordance with the notice required by 40 TAC §49.535(c), the program provider must submit a written plan for amelioration to HHSC within 45 calendar days after the date of the notice required by 40 TAC §49.535(c). If a program provider does not submit a plan for amelioration within 45 calendar days, HHSC requires the program provider to pay the administrative penalty in accordance with 40 TAC §49.535(d)(1).

(e) A plan for amelioration must include:

(1) proposed changes to the management or operation of the program provider that will improve services or the quality of care for the individuals;

(2) the ways in which and the extent to which the proposed changes will improve services or quality of care for the individuals through measurable outcomes;

(3) clear goals to be achieved through the proposed changes;

(4) a timeline for implementing the proposed changes;

(5) specific actions necessary to implement the proposed changes;

(6) the cost of the proposed changes; and

(7) an agreement to waive the program provider's right to appeal the imposition of the administrative penalty if HHSC approves the plan for amelioration.

(f) The cost of the proposed changes must be incurred by the program provider after HHSC approves the plan for amelioration. If HHSC approves the plan and the cost of the proposed changes is less than the amount of the administrative penalty, HHSC requires the program provider to pay the difference between the cost of the proposed changes and the administrative penalty.

(g) HHSC may require a plan for amelioration to propose changes that result in conditions exceeding the requirements of this subchapter.

(h) HHSC notifies a program provider of its decision to approve or deny a plan for amelioration within 45 calendar days after the date HHSC receives the plan. During the 45-day period, HHSC may allow the program provider an opportunity to revise the plan.

(1) If HHSC approves the plan:

(A) the program provider must implement the plan; and

(B) HHSC:

(i) requires the program provider to pay the amount of the difference between the cost of the proposed changes and the administrative penalty, if any; and

(ii) determines in one or more surveys conducted in accordance with §565.41 of this subchapter (relating to HHSC Surveys of a Program Provider) if the program provider has implemented the plan.

(2) If HHSC denies the plan, HHSC requires the program provider to pay the amount of the administrative penalty in accordance with 40 TAC §49.535(d)(2). The program provider may appeal the administrative penalty in accordance with 40 TAC §49.541 (relating to Contractor's Right to Appeal).

(i) If HHSC determines that a program provider did not implement an approved plan for amelioration, HHSC requires the program provider to pay the amount of the administrative penalty in accordance with 40 TAC §49.535(d)(3). The program provider may appeal the sole issue of whether the plan for amelioration was implemented.

Source Note: The provisions of this §565.47 adopted to be effective June 21, 2023, 48 TexReg 3246