### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00480- CV

P arkview Nursin g and Rehab ilitation Center, A ppellan t

v. Texas Depart m ent of Aging an d Disab ility Services, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 200 TH JUDICI AL DISTRICT NO. D-1 -GN-1 1-0 0055 7, H ONO RAB LE MARGARET A. CO OP ER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Pa r k v ie w N u r s in g a n d Re h a b il it a ti o n Ce n te r a

p p eals a district court judgme nt de ny in g it injunctive and decla

ratory relief to restra in the Texas Depa rtment of Ag ing an d Di s abil ity Service s (DAD S) from disclosing to third parties cer tain information that Parkview considers to be confide ntial and privileg ed. I n two issues, Parkview urg es that the district court err ed in denying the reque sted relief

. We will affirm the district cour t’s judgme nt.

BACK GR OUND Parkview opera tes a nursing home located in Big Spring. The nature of Parkview’ s opera tions require s it both to b e licensed by the State of Texas and “ce rtified” as comply ing with fede ral stan d ar d s g overning elig ibilit y to participa te in the Medica id prog ram. Both the licensing and Medica id cer tification re q u i reme nts are administered within this state by DADS, the primary Texas state ag ency that reg ulates nursing homes. See Tex. Hum. Res. Code § 161.071 (g ener al powers and duti es of DADS); Tex

. Hea lth & Safety Code § 242.033 (authoriz ing DADSto issue nursing -home licenses)

. Pursuant to leg islative direc tive, DADS has promulg ated a single

set of rules, titled “Nur sing Facil ity Requirements for L icensure and Medica id Certifica tion” and codified in chapte r 19 of Texas Admin i s t rative Code Title 40, that are intended to incorporate both the state licensing and Medica id elig ibilit y standards. See 40 Tex. Admin. Code § 19.1 (2013) (DAD S, Ba sis & Scope); see generally id. §§ 19.1–.2615 (“N ursi n g Facility Requirements for 1 L icensure and Medicaid Certifica tion”); see also Tex. Hea lth & Saf ety Code § 242.037 (direc ting DADS to promulg ate a

nd enfor ce r

ules reg arding nursing home licensure s). Among the many and varie d require ments imposed on nursing homes by chapte r 19, “[ t ] he fac ility ” must maintain rec ords conce rning “incidents” or “ac cidents” befa lling a resident. 2 See 40 Tex. Admin. Code § 19.1923 (I ncident or Acc ident Reporting ). Although “ac cident” is not define d specific ally in chapte r 19, an “incident” within the chapte r is “[a]n abnorma l event, inc lu d ing

acc idents or injury to staff or residents, which is documented in fac ility repor ts.” Id

. § 19.101(50). I nformation about “all incidents or acc idents” must b e memorialized in “clinica l rec ords

on eac h resident” that the fac ility must maintain “in accorda nce with acc epted profe ssional h ea l t h information manag ement standards and prac tices.” See id. §§ 19.1910 (Clinical Records), .1911(13)( B) (iii) (Contents of the Clini cal Record) , .1912 (Additional Clini cal Record Service Requirements). “I ncidents” or “ac cidents” also implicate rule 19.1923, titled “I ncident or Acc ident Reporting .” See id. § 19.1923. I n addition to requiring that “[t] he fac ility must detail in the medical

All ref ere nces to Title 40 of the Texas Administrative Code are to reg ulations promulg ated 1 by DADS. See 40 Tex. Admin. Code § 19.101(39 ) (De finitions) (“U nless otherwise indicated, a 2 fac ility is an instit ution that provides org anized and structure d nursing car e and service and is subject to licensure unde r Texas Hea lth and Safety Code, Chapter 242.” ). 2rec ord ever y acc ident or incident,” see id. § 19.1923(a) , rule 19.1923 mandates additio n al re cord keeping and re porting conce rning acc idents and any “unusual” incidents:

Acc idents, whether or not resulting in injury , and any unusual incidents or abnorma l events including alleg ations of mistreatment of residents by staff or person nel or v i sitors, must be descr ibed in a separ ate administrative rec ord and repor ted by t h e fac ility in acc ordanc e with the licensur e Ac t and this section.

Id

. § 1 9.1923(b). This “[a]ccident or incident repor t[ ]” must contain, with respe ct to “incidents involving re sidents”:

• “the na

me of the r esident”

• “witnesses, if a

ny ”

• “date , time, and desc ription of the incident”

• “cir cumstance s under whic h it occurr ed”

• “ a c tion taken including documentation of notification of the resp o n s ib le p a r ty and attending phy sician, if appr opriate”

• “the resident’ s curr ent (post-incident) health condition, including vital signs and date and time of e ntry .”

Id

. § 19.1923(c) (1). Fur th er m o re , ru le 19.1923 require s that “[t] he fac ility must investigate incidents/acc idents and complaints for trends which may indicate resident abuse,

. . . includ[i ng ] but not limited to: ty

pe of acc ident, ty

pe of injury , time of day , staff involved, [and] staffing level and

re l at i o n s h i p to past complaints.” Id

. § 19.1923(d). Finally , this same rule require s the fac ility t o make these incident repor ts available for revie w upon reque st by various state and fede ral ag encie s, including D ADS. See id. § 19.1923(e)

.

3The prese nt dispute conce rns two ty pes of documents that Pa rk v i ew cre ates and maintains, at least in part, to satisfy the require ments of rule 1 9

. 1 9 2 3

. T h e fi rst is a document or form titled “Resident I ncident Report” that contains informa tion corre sponding to tha t r equire d of the “[a]ccident or incident repor t[ ]” u n d er ru le 19.1923—the name of any resident to whom an incident has occur

red; witnesses; the date, time, and a descr iption of the incident; circ umstances or conditions prese nt when the incident occur red; the actions taken by Parkview personne l in response ; and the r esident’s post-incide nt condition, including vital sig ns. See id. § 19.1923(c) (1). F urther, the Resident I ncident Report cate g ori ze s in c id e nts under “ty pes” that include “skin tear –superf icial,” “fa ll,” and “other ,” and simil arly classifies in ju r ie s u n d e r “ty pes” that include “skin tear ,” “abr asion,” and “none appar ent.” The second ty pe of Parkview docum en t o r fo rm at issue is titled “I ncident L og ,” which compiles and summarizes data from Resident I ncident Reports for discrete one-month periods, listi ng the aff

ecte d resident’ s name; incident date, time, and location; the “ty pe” of incident and injury ; and the “disposition” or trea tment admini s t er ed

. At t h e end of the I ncident L og for

eac h one-month per iod, Parkview lists totals for eac h ty pe of inc ident, ty

pe of injury , and incident location. Parkview ref

ers to its I ncident L og s as its “tra cking and trending ” information, an appar ent allusion to rule 19.1923’s require men t t h at i t “i nvestig ate incident/acc idents

. . . for trends

. . . includ[i ng ] ty

pe of acc ident, ty

pe of injury , time of day , staff involved, staffing level, and rela tionship t o past complaints.” See id. § 19.1923(d).

I n addition to requiring this ty pe of rec ord keeping by nursing homes, DADS reg ulations require eac h “fa cility ” to maintain a quali t y assessment and assura nce (QA& A) committee consisting of its direc tor of nursing services , a d es i gnated phy sician, and at least three other members of the fac ility ’s staff. Id

. § 19.1917(a) (Qua lity Assessment & Assuranc e). A

4facility ’s QA& A committee is to meet at least quarte rly “to identify issues with respe ct t o wh i ch

quality assessment and assura nce activities are nece ssary ,” “deve lop[ ] and implement[ ] appropr iate plans of action to corr ect identified quality defic iencies,” and “adopt and ensure implementation of a poli cy to i d en t i fy , as s ess, and develop strateg ies to control risk of i njury to residents and nurses associate d with the lifting, tra nsfer ring , repositioning, or

moving of a resident.” Id

. § 19.1917(b), (e)

. Rule 19.1917 further provides that “Te x as or the Secre tary of Hea lth and Human Service s may not require d isclosure of the records of the [ QA& A] Commi ttee ex cept insofar as such di sclosure is re l at ed to the compliance of the committee” with the rule’s require ments that it meet at least quarte rly and develop “plans of action” to corr ect “quality d ef iciencie s.” Id

. § 19.1917(c)

. Additionally , “[g]ood faith attempts by the [QA&A] committee to identify and corr ect quality defic iencies may not be used as a basis for sanctions.” Id

. § 19.1917(d). Over ly ing this reg ulatory p ro t ec t ion for nursing home QA& A committees are statutory privileg es aff orded cer tain ty pes o f medical c ommunications, inc luding the medical- committee privileg e and the medical peer -re view committee privileg e, both of which, stated g eneral l y , keep the rec ords and proce eding s of those committees confide ntial and any communications made to them privileg ed

. See Tex. Hea lth & Safety Code § 161.032 (medica l-committee privil eg e ); Tex. Occ

. Code § 160.007 (medica l peer revie w committee privileg e); In re Living Ctrs. of Tex. , 175 S.W .3d 253, 259 (Tex. 2005) (discussing

v ar i o u s m edica l-committee privileg es and holding that nursing home QA& A committees enjoy medical- committee privileg es).

As require d, Parkview has formed such a QA& A committee, which it descr ibes as its “ce ntral” committee of this sort and as a “ty pe” of medical peer -re view committee. See In re Living Ctrs. , 175 S.W .3d at 259 (noting simil arities betwe en QA& A committees and medical peer 5view committees). I n addition to fulfilling its QA& A committee duties, see 40 Tex. Admin. Code

§ 19.1917, Parkview contends t hat it has st ructure d the process by which it s personne l g ather and utiliz e the infor

mation contained in its Resident I ncident Reports a nd I ncident L og s in such a wa y

as to ma ke those documents, contempora neously , products of its QA &A committee. Specifica lly ,
acc ording to the aff

idavit of owner and operator Vicki Cole, Parkview’ s Resident I ncident Reports and I ncident L og s are “submitted to and evalu at ed by ” the QA& A committee “for the purpose of improving resident c are ” throug h “self- evalua tion a nd critica l review .” Cole’s a ffidavit fur ther explains that the information rec orded, maintained, prese nted, revie wed, and g ener ated in this context, is kept as c onfidential and privileg ed. Finally , Parkview emphasizes, whene ver a fede ral

or state ag ency , such as DADS, investigates Parkview and reque sts its Resident I ncident Reports and I ncident L og s—which it terms “QA[ &A ] i n formation”—its QA& A committee, not Parkview g ener ally , is the entity that provides the information to the reque sting body

. I n fac t, Parkview g oes

as fa r t o urg e that beca

use its Resident I ncident Reports and I ncident L og s are , in these way s, “QA& A committee produc t,” DADS is not allowed e ven to ask for this information. T h e g enesis of the underlying dispute was a “complaint” (i.e., an alleg atio n o t h er than one repor

ted by the fac ility itself ) made to DADS conce rning car e of a Parkview resident. This 3 trig g ere d an investigation of Parkview by a DADS survey or, Debr a Adams, who ultimately spent all or part of eleve n day s at the fac ility

. S ee T ex . Hea lth & Safety Code § 242.126 (re quiring DADS to investigate repor ts of abuse and neg lect). During such an i n v es tiga tion or inspection 4

See id. § 19.101(19) ( defining “complaint”)

. 3 During its 2011 session, the L eg islature repe aled Subchapter E of Chapter 242 of the 4 Texas Hea lth and Safety Code, which includes section 242.126. See Act of J une 27, 2011, 82d L eg ., 1st C.S., ch. 7 , § 1

. 05(m), 2011 Tex. Gen. L aws 5390, 5407 (“Subcha pter E, Chapter 242, 6of a nursing home, DADS is to make a deter mination as to whether the fac ility has violated any appli ca ble reg ulations. See 40 Tex. Admin. Code § 19.2004 (De terminations & Actions Pursuant to I nspections); see also id. § 19.101(53) ( defining “inspec tion” as including “complaint investiga tion”). DADS is to list any violations (a lso te rmed “def iciencie s”) on forms desig ned for that purpose, discuss the defic iencies with the fac ility ’s manag ement, and elicit and approve a “plan of corr ection” from the fac ility that is also memorialized in the form. See id

. § 19.2004(b)–( f). The

rec ord ref l ec t s t h at DADS utiliz es two forms for these purposes, one promulg ated by the fede ral Center for Medica id Service s (CMS) and known as a “CMS-25 6 7,” titled “Statement of Def iciencie s and P lan of Correc tion”; the other a state form used for licensing purposes and known as a “3724,” and titled “Statement of L icensing Violations and Plan of Correc tion.” A nursing home may challeng e a finding of a defic iency throug h an administrative proce ss. See id. § 19.2147 (Remedies in Medicaid-Ce rtified F acilities) (pr oviding f or informa l dispute-resolution proce ss). During h er investigation, Adams interviewe d sever al Parkview employ ees and reque sted, obtained, and revie wed not only Parkview p at ient clinical files but also its Resident I ncident Reports and I ncident L og s. When Adams conclude d her inquiry , she did not find a deficienc y in connec tion with the complaint that had originally prompted her investigation, but she nonetheless cited Parkview for a differ ent alleg ed defic iency rela ted to the training or skill of Parkview’ s nurse’ s aides in pe rfor ming a cer

tain aspec t of patient ca

re. A dams prepa

red a

Hea lth and Safety Code, is repe aled.” ); see also id. § 1.05(c) , 2011 Tex. Gen. L aws at 5399 (adding chapte r titled “Repo rt s o f Abuse, Neg lect, and Ex ploitation of Residents of Certain Fa cilities”) (codifie d at Tex. Hea lth & Safety Code §§ 260A.001–.018). But the L eg islature included a saving s clause continuing the prior law in eff ect as to any conduct occur ring befor e the leg islation’s eff ective date. See id. , § 1.05(q), 2011 Tex. Gen. L aws at 5408. All the conduct rele vant to this case occur red befor e the leg islation’s effe ctive date

. 7form CMS-2567 summarizi ng her c onclusions and Parkview ’s plan of c orre ction. To support her

asser tions that a defic iency in skill or training was prese nt, Adams ref ere nced her own persona l observa tions, her interviews with Parkview personne l, and the contents of patient medical rec ords. She also summarized and, in one instance , direc tly quoted portions of various individual Resident I ncident R eports that, in her view, i l l u s t ra ted ex amples of the deficiency she had alleg ed. Adams likewise discussed the manner in which Parkview trac ked or cate g orized such events in its I ncident L og s. See Tex. Health & Safety Code § 242.126 (re quiring final written r eport). Upon rec eipt of Adams’s completed CMS-2567 form, Parkview soug ht injunctive and decla ratory relief in the district court below to pr event DADS from publicly disclosing cer tain excerpts of the CMS-2567 that quote, summarize, or ref ere nce the contents of Resident I ncident Reports or I ncident L og s. See Tex. Gov’ t Code § 552.325 (listing proper parties to suit seeking to withhold information). Parkview urg ed that the information in question was confide ntial by law, such that disclosure was barr ed, by virtue of the reg ulatory QA& A protec tion and the statutory medical- committee privi leg es. Parkview further asserte d that Adams and D ADS had violated the prohibition ag ainst relying on “[g]ood faith attempts by the [QA&A] committee to identify and

corr ect qua lity

defic iencies . . . a s a basis for sanctions.” 40 Te x . Admin. Code § 19.1917(d). Parkview succe eded in obtaining a temporar y re s t raining order barr ing DADS from disclosing the excerpts in question, and its claims proce eded to final hear ing. To establish its 5 privileg e claims, Parkview prese nted Cole’s aff idavit and the live t es t i m o n y of its administrator

I n the meantime, CMS intervene d and remove d the case to fede ral district court. On 5 motion of Parkview, the fede ral district c ourt, concluding that CMS lacke d a justiciable interest in the proce eding , dismiss ed the ag ency ’s intervention and rema nded the case back to the district court below. 8and QA&A committee chair , Kristi Dian Bea uchamp. I t al s o t endered for in came ra inspection a copy of Adams’s completed CMS-2567 form, wi t h t he disputed excerpts highlig hted, along with copies of its Res i dent I ncident R eports and I ncident L og s whose contents, Parkview claimed, had been improperly quoted or incorpora ted in the completed form. DADS prese nted the testimony of Carol Ahmed, its direc tor of surve y operations. After hear ing evidenc e, the district court ultimately signe d a final judgme nt deny ing Parkview’ s claims for injunctive and decla ratory relief in full. I n its judgme nt, the court specific ally conclude d that DADS—

may use the documents at issue for statutorily authorized purposes to include, but not limit ed to, 1) internal use of the incident repo rt s [and] trac king and trending documents; 2) rele ase of reda cted, or de-ide ntified, complete written investigation repor ts in response to an open rec ords reque st; 3) rele ase of reda cted, or de-ide ntified, Fe dera l Form 2567 a

nd State For

m 3724 [ i.e., the state lice nsing f orm] in response t o an open rec ords reque st; and 4) posting of g ener al or broad descr iptions o f t h e d ef i cienc ies contained in For ms 2567 and 3724 on the DADS L ong Term C ar e Quality Reporting Sy stem.

The district court did not make finding s of fac t and conclusions of law to elabor ate on the bases for its judgment, nor we re a

ny reque sted. This appea l ensued.

6

Parkview emphasizes that the district court discussed rationale s for its ruling , in both 6 written corr espondenc e to the parties and oral statements made during a hear ing, befor e it signe d its judgme nt. Howeve r, Parkview ultimately acknow l ed ges that such statements, as contra sted with writt en fi n d i n gs o f fac t and conclusions of law made in support of the signe d judgme nt, do not impact the scope of our appell at e re v i ew . See Texas Bd. of Chiropractic Exam’ rs v. Texas Med. Ass’n , 375 S.W .3d 464, 482 n.24 (Tex. App.—Austin 2012, pet. denied). 9ANALYSIS Parkview bring s two is sues on appea l. I n its first, Parkview contends that the district court err ed in permitting DADS and Adams to quot e v er b at i m , in a document subject to public disclosure, the contents of its Re s i d en t I ncident Reports and I ncident L og s beca use those
contents wer e confide ntial and privil eged, and wer e not a proper basis for the cited defic iencies. Predica ted on its arg ument and analy sis in support o f i t s fi rs t issue, Parkview urg es in its second issue that the district court e rre d in refusing its claims for dec lara tory and injunctive re lief. The analy

tical linchpin of Parkview’ s contentions is its asser t i o n t h at its abovedescr ibed proce ss wher eby its QA& A committee utiliz es the information contained in its Resident I ncident Reports and I ncident L og s makes those documents, contempora neously , documents of its QA& A committee and, in tur n, confide ntial a

nd privileg ed under the statutory medical- committee privileg es, see Tex. Hea lth & Safety Code § 161.032 (medica l-committee privileg e); Tex. Occ

. Code § 160.007 (medica l peer -re view privileg e), and subject to rule 19.1917’s tight restric tions on reg ulators’ ability to acc ess or use the information, see 40 Tex. Admin. Code § 19.1917(c) , (d). As such, Parkview contends, DADS had no rig ht to reque st or obtain those documents from Parkview in the first place , let alone incorporate or quote verbatim the contents of those rec ords i n its completed writ t en i n v est igation repor t, a document that would be open to the public. See id. § 19. 2 010(b) (making completed investiga tion repor ts open to public); see also Tex. Gov’t Code § 552.022 (“c ompleted repor t .

. . by a g overnme ntal body ” is public information). Parkview adds that allowing DADS t o acc ess t hose documents and incorporate them into its public investiga tion repor ts would “dismantle” the QA& A reg ulatory proce ss, h av e a “c h illing eff ect” on the medical community ’s eff

orts to improve patient car e, and sever ely damag e the collabora tive rela tionship and

10fre e flow of information betwee n nursing homes and DADS that is envisioned by the Hea lth Code.

See Tex. Hea lth & Safety Code § 242.001(a) (desc ribing Chapter 242’s purposes). DA DS arg ues in response that Parkview’ s QA& A proce dures do n o t affect DADS’s statutory and reg ulatory authority to obtain and use Parkview’ s rule 19.1923 incident repor ts and trac king/tr en d i n g d o c u me n ts

— i. e . , it s Re s id e n

t I ncident Reports and I ncident L og s—including using infor ma ti o n f r o m those documents in a de -identified f inal, written re port. The parties’ competing contentions turn ultimately on construction of sta t u t es an d administrative rules, which p re s en t questions of law that we revie w de novo under traditional principles of statutory construction. See TGS-NOPEC Geophy sical Co. v. Combs , 340 S.W .3d 432, 438 (Tex. 2011) (hol ding that administrative rules are interpre ted under principles of statutory construction); City of Rock wall v. Hughes , 246 S.W .3d 621, 625 (“Statutory construction is a leg al question we revie w de novo.”). Our primary objective is to asce rtain and g ive eff ect to the draf

ters’ intent. See TGS-NOPEC , 340 S.W .3d at 439 (citing Tex

. Go v ’t C o d e § 312.005; Texas Dep’ t of Protective & Regulatory Servs. v. Mega Child Care , 1 4 5 S

. W

. 3d 170, 176 (Tex. 2004)). We deter mine that intent from the plain meaning of the words chosen when it is possible to do so, using any definitions pr ovided. See id. (citing Tex. Gov’ t Code § 311.011(b))

. We consider the statutes

or rules as a whole rathe r than their isolated provisions. See id. (citing Texas Dep’ t of Transp. v. City of Sunset Valley , 146 S.W .3d 637, 642 (Tex. 2004)). We presume t h at the enac tment’s lang uag e

was chosen with car e, with eac h word included (or omitted) purposef ully

. See id. (citing In re M.N. , 262 S.W .3d 799, 802 (Tex. 2008)). Undef ined terms are ty

pically g iven their ordinary meaning , but if a differ ent or more preci s e definition is appar ent from the terms’ use in context, we apply that meaning

. Id

. (citing In re Hall , 286 S.W .3d 925, 928–29 (Tex. 2009)). I f the text of the enac tment

11is un am biguous, we adopt the interpre tation supported by its plain lang uag e unless such an

interpre tation would lead to absurd results that the drafters could not possibly have intended. See id. (citing Mega Child Care , 145 S.W .3d at 177). I f the text is ambig uous, howeve r, we are to defe r to an authoritative administrative construction that is rea sonable and consistent with the text of the provision. See id. at 438 (“I f there is vag ueness, ambig uity , or room for policy deter minations in a statute or reg ulation, as there is here , we normally defe r to the ag ency ’s i n t er p re t ati on unless it is plainly err oneous or inconsistent with the lang uag e of the statute, regulation, or rule.” ). We are compelled to ag ree with DADS t hat i ts construction an d ap p l i cation of t he rele vant statutes and rules is, if n o t t h e s o l e corr ect construction, at least rea sonable and not inconsistent w ith the text of those provisions, suc h that we should de fer to it. As DA DS sug g ests, Parkview’ s cre ation and maintenanc e of its Re s i d ent I ncident Reports and I ncident L og s derive s from statutory and reg ulatory require ments t h at are distinct in orig in and purpose from those go v er n ing the proce eding s and rec ords of its QA& A committee. DADS reg ulations specific ally require the “fa cility ”—i.e., the nursing home, see 4 0 Tex. Admin. Code § 19.101(40) (def ining “fa cility ” as “the instit ution” that provides nursing car e); see also Tex. Hea lth & Safety Code § 242.002(6), (10) (def

ining “fa cility ” and “instituti on”)—to cre ate and keep these documents, to investiga te acc idents, incidents, and complaints for trends, and to make the incident repor ts available for revie w upon reque st. See 40 Tex. Admin. Code §§ 19.1923(a), (d ), (e) , .2002(h); see also T ex . He alth & Safety Code § 242.049(c) (spec ify ing that DADS may require nursing homes t o submit information nece ssary to improve quality of car e in nursing homes). A differ ent rule require s Parkview to maintain a

QA& A committee, presc ribes that committee’s proce eding s, and provide s the privileg es that attach to pr ocee dings and rec ords of that committee. See 40 Tex. Admin. C ode

12§ 19. 1 9 1 7

. Unlike the rule g overning the Resident I ncident Reports and I ncident L og s, the focus

of the rule g overning QA& A committees is not information-g ather ing in itself, but collaboration among a “g roup of h ealthca re profe ssionals in a fac ility ” to “deve lop and implement appropr iate action to identify and rec tify substandard car e and defic ient fac ility prac tice.” See id. §§ 19.101(112) (def ining QA& A committee), .1917(b) (desc ribing committee’s role an d p urpose) ; see also In re Living Ctrs. , 175 S.W

. 3 d at 2 6 0 (noting that these ty pes of medical committees “foster candid internal discussion for the purpose of making improvements in the quality of car e”)

. L ikewise, it is this evalua tive proce ss by the QA& A committee, and any resulting conclusions or plans, that would be the product of that committee, and thereb y s u b j ect to the QA& A protec tions from disclosure,
not the bare fac t s o r i n fo rm ation about incidents or acc idents at the nursing home that might be provi d ed t o the committee for analy sis. See In re Living Ctrs. , 175 S.W .3d at 260 (noting that privileg e “prote cts prod u ct s o f t h e peer revie w proce ss,” but does not protec t otherwise available information simply beca

use it was revie wed by committee). Ag ainst the backdr op of this reg ulatory framework, DADS appropr iately deter mined that Parkview’ s prac tice of providing underly ing fac ts and information to its QA& A committee in the form of Resident I ncident Reports and I ncident L og s it compiles under rule 19.1923 does no t i p s o fac to conver t those repor

ts and logs into privileg ed

rec ords of its QA& A committee.

Al t ernatively , even assuming Parkview’ s prac tices could have made its Resid en t I ncident Reports and I n ci d ent L og s rec ords “of” its QA& A committee in some rele vant sense, rule 19

. 1 9 23 would still support DADS’s deter mination that the information was not privileg ed. Reg ardle ss of their charac terization, the incident repor ts and trac king logs cre ated pursuant to rule 19.1923 “must be release d upon re q u est” in connec tion with an ins pection or survey beca use

13they are documents “maintained by or on behalf a fac ility .” See 40 Tex. Admin. Code § 19.2002(h);

see als o T ex . He alth & Safety Code § 242.043 (“The depar tment is entitled to acc ess to books,

rec ords, and other d ocuments maintained by or on behalf of an instit ution.”). Nor, contra ry to Parkview’ s arg uments, would allowing DADS to acc ess and use these documents in an investigation

v i o l ate rule 19.1917’s prohibition ag ainst punishing a nursing home for its QA& A committe e’ s eff orts to identify and corr ect quality defic iencies. See 40 Tex. Admin. Code § 19.1917(d) (“G ood faith attempts by the committee to identify and co rr ec t q u al i t y defic iencies may not be used as a b asi s for sanctions.”)

. The documentation of incidents and acc idents at a fac ility in comp l i an ce with mandatory licensing terms cannot be fairly char acte rized as a “g ood faith at t empt” to do any thing other than comply with the licensing require ment. Simi larly , the rec ords at issue here do

n o t d o c ument or identify “quality defic iencies,” a term that sug g ests qualitative analy sis or judg me n t, but instead “detail

. . . ever y acc ident or incident” that occur s at the facility

. See id. § 19.1923(a)

. And while the incident repor ts and logs may be analy zed to identify these defic iencies, it is the analy sis and examination leading to the identification o f a d ef i ci ency that is protec ted by the QA& A co m m i t tee privileg e and rule 19.1917, not the incidents themselves, that are privileg ed. Sta t ed an o t h er way , the “g ood faith eff orts to identify and corr ect quality defic iencies” are , for example, the subsequent analy sis or evalua tion of the incident repor ts and t rac king logs, the resulting deter

mination of causation, rec ommended actions, and a plan to eliminate the problem. Rule 19.1917 protec ts a nursing home from being sanc t i o n ed based on a g ood-fa ith attempt to identify or corr ect a

defic iency , but it does not prote ct the nursing home from the conseque nces of the underly

ing defic iencies themselves. Parkview’ s Resident I ncident Reports and I nci d en t L og s

wer e not the basis for the adver se DADS repor t here —the acc idents and incidents themselves wer e.

14Thus, to the extent that Parkview is sug g esting that the documentation and trac king of incidents and

acc idents by a QA& A committee should insulate a nursing home from revie w of those events, that would circ umvent Chapter 242’s g oal of making nursing homes acc ountable for resident car e. See Tex. Hea lth & Safety Code § 242.001(d)( 4) (re quiring nursing homes to “provid[e] the public with information conce rning the opera tion of instit utions in this state”)

. I t would also direc tly contra dict the DADS reg ulation making these documents availab l e t o the publ ic. See 40 Tex. Admin. Code §§ 19.1923(e) , .220 2 ( h )

. A c cording ly , DADS acte d consistently with these enac tments in reque sting these doc uments and in including information from them in its written investig ation repor t. Simi larly , Parkview’ s Resident I ncident Reports and I ncide nt L og s would not be protec ted as QA& A-c ommitt ee product under the rele vant statutory medical- committee privileg es beca use they are made or maintained in the regu l ar co u rse of Parkview’ s nursing -home business. The medical- committee privileg es specific ally except from the privileg e those rec ords that are “made or maintained in the reg ular course of business.” See Tex. Hea lth & Safety Code § 161.032(f) (providing that the privileg e does not apply “to rec o rds made or maintained in the reg ular course of business by a” nursing home); Tex. Occ

. Code § 161.032(f) (same for m ed i ca l peer -re view committee); In re Living Ctrs. , 175 S.W .3d at 257 (discussing business-r ecor ds exception to medical- committee privileg es). Parkview, like other licensed nursing homes in Texas, must comply with s t at e and fede ral nursing -home reg ulations to keep its license. See Tex. Hea lth & Safety Code § 242.031. As discussed at l eng th above, rule 19.1923 mandates that it cre ate and maintain the incident repor

ts and trac king logs at issue here and make them available to DADS upon reque st. See 40 Tex. Admin. Code § 1 9

. 1 9 2 3 (a)

. Certainly , documents that the nursing home itself must

cre ate, maintain, and prese nt upon reque st to stay licensed are d o cu m ents that are “made

15or mai n t ained in the reg ular course of [t hat] business.” See Mem orial Hosp.-The W oodlands

v. McCown , 927 S.W .2d 1, 10 (Tex. 1996) (hol d i n g t h at t his exception means “re cords kept in

connec tion with t h e t re at ment of [a hospital’s] individual patients as well as the business and administrative files and paper s apar t from committee deliberations”); see also In re Living Ctrs. , 175 S.W .3d at 257–58 (c iting McCown for sa me proposition).

This construction also comports wit h t h e purposes of the medical- committee privileg es—i.e., to “p ro m o t e fre e discussion in evalua tion of health car e profe ssionals and health service s,” see In re Living Ctrs. , 175 S.W .3d at 258–59—by protec ting the evalua tive proce sses of those committees, but not the underlying fac ts being evalua ted, such as “re cords made or maintained in the reg ular cou rs e of business” by the fac ility or the documents that simply pass throug h the committee. See id. at 2 5 7

. “T h e privileg e extends only to information g ener ated by the hospital committee in its investigation or revie w process .” Barnes v. W hittingt on , 751 S.W .2d 493, 49 6 (Tex. 1988) (empha sis added) ; see McCown , 927 S.W .2d at 3 (noting that privileg ed documents are t h o s e “g ener ated in connec tion with a revie w”) ; see also In re Living Ctrs. , 175 S.W .3d at 257 (quoting McCown for proposition that document s p r o te c te d u n d e r me d ic a l- c o mm it

te e privileg es “ar e those ‘g ener ated’ by a committee or ‘pre pare d by or at the direc tion of the committee for committee purposes’” ). “Te x as courts have consistently limit ed the peer -re view committee privileg es to those documents g ener ated by the committee as a result of the committee’s deliberative proce sses and to those submitt ed to the commi ttee at their di rec tion and in further ance of t he commit tee.” Capital Senior Mgmt. 1, Inc. v. Texas Dep’ t of Human Servs. , 132 S.W .3d 71, 77 (Tex. App.—Austin 2004, pet. denied) (citing , among others, McCown , 927 S.W .2d at 9). Parkvi ew ’s Resident I ncident Reports and I ncident L og s are not information g ener ated in or from an investi gat i o n or revie w

16proce ss. They are documents mandatorily g ener ated in response to and with the purpose of rec ording

the fac tual details of an incident or acc ident at the nursing home to comply with a re gu latory require ment of Parkview’ s nursing -home license. They contain no analy sis, evalua tion, or opinion, only fac ts about the incident. As such, while they might be the subject of an investigation or revie w proce ss, they

themselves ar e not the produc t of such an e valuative pr ocess. Finally , we would note that DADS reg ulations and the Hea lth & Safety C o d e contemplate the eventua l rele ase of the information contained in Parkvi ew’s Resident I ncident Reports and I ncident L og s in the manner that occur red here

. Whil e rule 19.2010 specifie s that the repor ts, rec ords, and wo rk ing paper s used by DADS in an investigation—e.g ., including, here , Parkview’ s Resident I ncident Repor ts a n d I n c id e n t L o g s

— a

r e c o n f id e n tia l, it also specifie s that those

same documents “may be rele ased to the public ” i f done so in a completed written investiga tion repor t, “provide d the repor

t is de-ide ntified.” See 40 Tex. Admin. Code § 19.2010(a)

. L ikewise, to comport with its g oal of protec ting residents by making sure that nursing homes “provide the public with informati on conce rning the operation of” nursing homes, see Tex. Hea lth & Safety Code § 2 4 2

. 0 0 1 ( d ) ( 4 ) , the L eg islature has mandated that DADS “esta blish proper proce dures to ensure th a t copi es o f al l forms and repor ts [i n connec tion with DADS investigations] are made available to consumers, service rec ipien t s , and the rela tives of service rec ipients as the depar tment considers proper .” Id. § 242.043(f)

. Fur ther, and more important, the Hea lth and Safety Code require s DADS, upon rec eipt and investigation of a complaint of abuse, to produce a written investigation repor t that includes the investigator’s persona l observa tions, a revie w of rele vant d o cu ments and rec ords, a summary of eac h witness statement, and a statement of the fac tual basis for the finding s, and to make that investiga tion report open to the public onc e de- identified. See id. § 242.126(e) , (g ).

17I n response , Parkview asser ts that section 242.049, which it sug g ests is the authority for rule 19.1923’s incident repor ts and trac king logs, require s DADS to keep those documents privileg ed and c onfidential:

The collection, compilation, and analy sis of the information a n d a ny r e p o r ts p r oduced fr om these source s shall be done in a manner that protec ts the privac y o f an y individual about whom information is g iven and is expli citly confide ntial. The depar tment shall protec t and maintain the confide ntiali t y of the information. The information rec eived by the depar tment, an y i n formation compiled as a result of revie w of internal ag ency documents, and an y re ports, compilations, and analy ses produce d from these source s shall not be available for p u b l ic inspection or d i s cl osure, nor are these source s public rec ords within the meaning of [t he T ex as Public I nformation Act]. The information and any compilations, repor ts, or analy ses produce d from the information shall not be subject to discovery , subpoena, or other means of leg al compulsion f or rele ase to a

ny person or

entity except as provided in this section and s h al l n ot be admissible in any civil, administrative, or criminal proce eding

. This p ri vileg e shall be recog nized by Rules 501 and 502 of t he Tex as Rules of Evidence

.
Id. § 242.049(d). I nitially , we note that, g iven section 242.04 9 ’s s i l en ce on the subject, section 242.037 is a more likely candida te for D ADS’s rulema king a uthority :

The depar tment shall make and enfor ce rules and minimum standards to implement this chapte r, including rules and minimum standards rela ting to quality of life, quality of ca re, a nd residents’ r ights.

Id. §§ 242.037(a) , .049. Section 242.049, on the other hand, provides that, in the context of DADS’s “eva luat [i on of] data for quality of car e,” nursing homes “may be require d to submit information desig nated by the depar

tment as nece ssary to improve the quality of car e in nursing homes.” See id. § 242.049(a) , (c)

. Reg ardle ss, h o we v er, even though section 242.049 require s DADS t o keep the quality -of- car e information and repor ts confide ntial, it also acknow ledg es that public information, such as the investigation repor t at issue in this case , might be a source of quality -of- car e information

18considere d by DADS and, as discussed above, it specifi ca l l y emphasizes that such public

information re tains its st atus as public informa tion: Any information, repor

ts, and other documents produce d which ar e subject to any means of le g al compulsion or which are c onsidered to be public information under Subchapter E [reg arding repor ts and investigation of abuse] and the rules adopted under that subchapte r shall continue to be subject to leg al compulsion and be trea ted as public information under Subchapter E afte r the eff ective date of t h is Act, even though such information, repor ts, and other documents may be used in the collection, compilation, and ana ly sis described in Subsec tions (b) and (d)

.
Id

. § 242.049(i); see also id. §§ 242.121–.135 (Subchapte r E, “Reports of Abuse and Neg lect ”)

. 7 The investigation of

Parkview unde rly ing this a ppeal was initiated in connec tion with a complaint reg arding a Parkvie w re sident, and re sulted in the written investig ation repor t that is at issue here

. See id. § 242.126(a) , (e) (r eq u i ring investigation of complaint alleg ing abuse and written investiga tion repor

t). As such, DADS’s de-ide ntified written in v est iga tion repor t of Parkview is public information. Id. § 242.126(g ) (DA DS must m ake de -identified r eport a vailable to public).

Parkview also sug g ests that the Texas Supreme Court’s decision in In r e Living Centers , 175 S.W .3d 253, and two decisions from this Court, see Capital Senior , 132 S.W .3d at 76; Ebony La ke N

u r sing Center v. Texas Dep’ t of Human Servs ., 62 S.W .3d 867, 873–74 (Tex. App.—Austin 2001, no pet.), support its contention t hat t he very documents at i s s u e in this

cas e

— i. e . , r e g

u la to r il y r e q u ir e d in c id e n t repor

ts and trac king logs—a

re privileg ed under the medicalcommittee privileg es. We disag ree . Although the documents in In re Living Centers wer e descr ibed as i ncident repor

ts and logs, the s upreme court held only that those particula r documents “ may be

As discussed in footnote 4, Subchapter E was re p ea l ed by the L eg islature in 2011. See 7 2011 Tex. Gen. L aws 5390 a t 5407. 19privileg ed,” but that further revie w by the trial court was nece ssary beca use the documents had been improperly deeme d not privileg ed based solely on the fac t that they had not been phy sically marke d

as QA& A documents. See id. at 261 (empha sis added)

. I n other words, the supreme court did not hold that the incident repor ts and trac king logs require d by DADS reg ulations are QA& A documents entitled to the QA& A privileg e. The supreme court instead direc ted the trial court to vacate its prior order to produce all the documents that wer e not phy sically marke d as confide ntial, and to deter mine

on further examination whether those documents may be privileg ed. Id. at 262. Finally , In re Living C en t ers addre ssed whether the repor ts and logs themselves wer e privileg ed in connec tion wi t h a discovery reque st in a wrong ful death action, not whether a completed, written investigation repor t by DADS could include de -identified por tions of those documents. Id. L ikewise, in Capital Senior , which involved an open rec ords re quest to DADS, we d i d n ot hold that a nursing home’s incident repor ts are privileg ed under the medical- committe e privileg es. I nstead, we held that the reque sted documents—which wer e repor ts of abuse rathe r than the require d incident repor ts at issue in this case —wer e confide ntial under rule 19.2010(a) “bec ause they had been used by DADS during its survey s and investigations.” 132 S.W .3d at 75–76. We also specific ally noted that the provision in rule 19.2010(a) (1) for de-ide ntified information in completed written investigation repor ts did not apply in Capital Senior beca use t h ere was no completed written report in that case . Id. at 76. L ikewise in Ebony , which involved an ope n-re cords request for a nursing home’s incident re p o rt s , we held that the nursing home had established that it was entitled to a temporar

y injunction and rema

nded the matter to the trial court for a trial on the merits. I m p o rt an t ly , howeve r, in discussing the fac t that the repor ts wer e require d by law, we noted the documents at issue in Ebony included more than just information about the particula r

20incidents that had occur red in the nursing ho me ; th e y a ls o in c lu ded information reg arding subsequent investiga tions by the QA& A committee of the actions of some of the fac ility ’s medical staff and actions taken by the fac ility towards its employ ees as a result of the incidents. See 62 S.W .3d at 873. I n other words, the nursing home in Ebony prese nted evidenc e t h at t h ei r documents contained information re g arding the QA& A committee’s e valuative pr ocess. The documents in this ca se do not contain any

evalua tive information. We overr ule Parkview’ s first issue on appea l. And beca use Parkview’ s second issue on appea l is predicate d on a fa vorable dispositi on of its first issue, we ove rrule it as w ell.

CONCLUSION Having overr

uled Parkview’ s issues on appea l, we aff irm the district court’s judgme nt.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Affir med Filed: January

10, 2014

21