Criminal history checks, availability of staff, qualified employees among problem areas
A recent case touched upon the requirement of the Texas Health and Human Services Commission (HHSC) that licensees search certain databases that identify individuals who are unemployable before hiring an employee and every year after that.
All By Grace Home Health Care, Inc. (ABG), a home and community support services agency, was the licensee involved in this case. The HHSC surveyed ABG’s operations and tagged 19 regulatory violations. ABG allegedly failed:
- to enforce its policies requiring availability of an administrator and nursing supervisor at all times (Tag Z-108)
- to manage its daily operations in compliance with these policies (Tag Z-117)
- to ensure the availability of its supervising nurse or an alternative at all times (Tag Z-139)
- to ensure accurate and timely documentation of its services (Tag Z-125)
- to ensure that its employees were qualified (Tag Z-126)
- to employ a person meeting the applicable requirements for home health aides (Tag Z-708)
- to ensure that the performance of care was in line with written plans of care (Tag Z-141)
- to conduct criminal history checks on employees (Tag Z-194)
- to do searches on two databases, the nurse aide registry (NAR) and the employee misconduct registry (EMR), before client contact (Tag Z-196)
- to annually conduct NAR and EMR searches on employees, as required (Tag Z-199)
- to annually review its emergency preparedness and response plan (Tag Z-289)
- to annually conduct an emergency drill (Tag Z-291)
- to ensure the use of standard practices to prevent spreading infection (Tag Z-390)
- to ensure effective exchange of information, reporting, and coordination of services with a physician (Tag Z-408)
- to ensure the availability of backup services (Tag Z-423)
- to give clients timely advance notice of intent to discharge (Tag Z-439)
- to perform annual supervision visits, as required (Tag Z-546)
- to submit copies of requested client records during the HHSC’s survey (Tag Z668)
- to offer timely access to its facility for the purpose of the survey (Tag Z-670)
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Under HHSC’s regulations, Level-A violations are minor or of no significance in terms of client health or safety and generally could not result in an administrative penalty without the licensee first getting an opportunity to correct the deficiency.
On the other hand, Level-B violations can lead to serious harm to or death of a client, amounted to an actual serious threat to a client’s health or safety, or substantially limited the licensee’s capacity to offer care. In this case, the survey classified nearly all the violations as Level-B but assigned no level to the last two.
Based on the violations tagged, HSSC found that ABG should pay a total fine of $13,750 and should have its license revoked. It ordered ABG to file an acceptable plan of correction. ABG complied.
The administrative law judge recommended revoking ABG’s license; rejecting Tag Z-670 as unfounded; combining Tags Z108 and Z-117 into one item; combining Tags Z-126 and Z-708; reducing Tags Z-423 and Z-546 from Level-B to Level-A; and reducing the total fine to $9,750.
License revoked after violations
The HHSC issued a final order wholly adopting the judge’s recommendations. The trial court upheld the HHSC’s final order. ABG appealed. Substantial evidence failed to support the HHSC’s final order, ABG argued.
In the case of All by Grace Home Health Care, Inc. v. Texas Health and Human Services Commission, the Texas Court of Appeal for the Eighth District at El Paso affirmed the judgment of the trial court. Substantial evidence supported the HHSC’s final order, the appellate court ruled.
ABG failed to show that substantial evidence did not support the HHSC’s designation of any violation as Level-B or unassigned and failed to show that it need not pay the fine if it corrected the violations, the appellate court said.
First, regarding the administrative penalties imposed, the appellate court rejected ABG’s argument that none of the violations warranted denying it an opportunity to correct the alleged deficiencies.
The appellate court noted that ABG, in its argument, discussed only violations relating to an overseas emergency trip of ABG’s administrator and nursing supervisor even though most of the violations that the judge found had no connection to this trip, including Tags Z-125, Z-126, Z-708, Z-141, Z-194, Z-196, Z-199, Z-289, Z-291, Z-390, Z-408, Z-439, and Z-668.
Second, the appellate court held that ABG failed to show that substantial evidence did not support the revocation of its license. The HHSC had the broad power to revoke a license if a licensee violated its regulations, the appellate court said.
The appellate court decided not to overturn the revocation of the license because ABG failed to show that substantial evidence did not support all the violations that the judge found and failed to address the merits of most of these violations.
