(a) If DADS determines that DADS or CMS has imposed a required Category II or III remedy (as defined in 42 Code of Federal Regulations (CFR)) on a facility three times within an accountability period, a recommendation is made to terminate the facility's provider agreement, unless DADS waives termination after considering the factors described in subsection (e) of this section.
(b) DADS notifies a facility in writing of its intention to terminate the facility's provider agreement. Notification occurs within:
  (1) three calendar days after receipt of the recommendation of remedies for a facility found in immediate jeopardy; or
  (2) 15 calendar days after receipt of the recommendation of remedies for a facility not found in immediate jeopardy.
(c) The provider agreement is terminated on the 20th calendar day after the facility receives notice of DADS' decision to terminate the provider agreement.
(d) An appeal for this remedy is the appeal on the issue of noncompliance that led to the imposition of a Category II or III remedy for the third time within the accountability period. The appeal for this remedy follows the federal procedures in 42 CFR Part 498 for a dually-participating facility or in 42 CFR Part 431 for a facility that is Medicaid-certified only.
(e) DADS may waive termination of a facility's provider agreement when a facility has received a Category II or III remedy three times within an accountability period of 24 consecutive months. DADS may consider one or more of the following to waive termination of a facility's provider agreement:
  (1) the history of violations committed by the facility resulting in three Category II or III remedies within an accountability period and the resulting enforcement action compared with the history of violations committed by other facilities that received Category II or III remedies three times within an accountability period and the resulting enforcement action;
  (2) the history of ownership of the facility when the Category II or III remedies were imposed; or
  (3) the efforts the facility has made to correct the violations that resulted in the imposition of the Category II or III remedies.

Source Note: The provisions of this §554.2146 adopted to be effective July 31, 1995, 20 TexReg 5259; amended to be effective February 1, 1997, 21 TexReg 11822; amended to be effective March 1, 1998, 23 TexReg 1314; amended to be effective April 21, 2009, 34 TexReg 2541; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871