      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00480-CV



                   Parkview Nursing and Rehabilitation Center, Appellant

                                                  v.

                 Texas Department of Aging and Disability Services, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
    NO. D-1-GN-11-000557, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Parkview Nursing and Rehabilitation Center appeals a district court judgment denying

it injunctive and declaratory relief to restrain the Texas Department of Aging and Disability

Services (DADS) from disclosing to third parties certain information that Parkview considers to be

confidential and privileged. In two issues, Parkview urges that the district court erred in denying the

requested relief. We will affirm the district court’s judgment.


                                         BACKGROUND

               Parkview operates a nursing home located in Big Spring. The nature of Parkview’s

operations requires it both to be licensed by the State of Texas and “certified” as complying

with federal standards governing eligibility to participate in the Medicaid program. Both the

licensing and Medicaid certification requirements are administered within this state by DADS,

the primary Texas state agency that regulates nursing homes. See Tex. Hum. Res. Code § 161.071

(general powers and duties of DADS); Tex. Health & Safety Code § 242.033 (authorizing DADS
to issue nursing-home licenses). Pursuant to legislative directive, DADS has promulgated a single

set of rules, titled “Nursing Facility Requirements for Licensure and Medicaid Certification” and

codified in chapter 19 of Texas Administrative Code Title 40, that are intended to incorporate

both the state licensing and Medicaid eligibility standards. See 40 Tex. Admin. Code § 19.1 (2013)

(DADS, Basis & Scope);1 see generally id. §§ 19.1–.2615 (“Nursing Facility Requirements for

Licensure and Medicaid Certification”); see also Tex. Health & Safety Code § 242.037 (directing

DADS to promulgate and enforce rules regarding nursing home licensures).

                Among the many and varied requirements imposed on nursing homes by chapter 19,

“[t]he facility”2 must maintain records concerning “incidents” or “accidents” befalling a resident.

See 40 Tex. Admin. Code § 19.1923 (Incident or Accident Reporting). Although “accident” is not

defined specifically in chapter 19, an “incident” within the chapter is “[a]n abnormal event, including

accidents or injury to staff or residents, which is documented in facility reports.” Id. § 19.101(50).

Information about “all incidents or accidents” must be memorialized in “clinical records

on each resident” that the facility must maintain “in accordance with accepted professional

health information management standards and practices.” See id. §§ 19.1910 (Clinical Records),

.1911(13)(B)(iii) (Contents of the Clinical Record), .1912 (Additional Clinical Record Service

Requirements). “Incidents” or “accidents” also implicate rule 19.1923, titled “Incident or Accident

Reporting.” See id. § 19.1923. In addition to requiring that “[t]he facility must detail in the medical



        1
      All references to Title 40 of the Texas Administrative Code are to regulations promulgated
by DADS.
        2
             See 40 Tex. Admin. Code § 19.101(39) (Definitions) (“Unless otherwise indicated, a
facility is an institution that provides organized and structured nursing care and service and is subject
to licensure under Texas Health and Safety Code, Chapter 242.”).

                                                   2
record every accident or incident,” see id. § 19.1923(a), rule 19.1923 mandates additional record

keeping and reporting concerning accidents and any “unusual” incidents:


       Accidents, whether or not resulting in injury, and any unusual incidents or abnormal
       events including allegations of mistreatment of residents by staff or personnel or
       visitors, must be described in a separate administrative record and reported by the
       facility in accordance with the licensure Act and this section.


Id. § 19.1923(b). This “[a]ccident or incident report[]” must contain, with respect to “incidents

involving residents”:


       •       “the name of the resident”

       •       “witnesses, if any”

       •       “date, time, and description of the incident”

       •       “circumstances under which it occurred”

       •       “action taken including documentation of notification of the responsible party
               and attending physician, if appropriate”

       •       “the resident’s current (post-incident) health condition, including vital signs
               and date and time of entry.”


Id. § 19.1923(c)(1). Furthermore, rule 19.1923 requires that “[t]he facility must investigate

incidents/accidents and complaints for trends which may indicate resident abuse, . . . includ[ing] but

not limited to: type of accident, type of injury, time of day, staff involved, [and] staffing level and

relationship to past complaints.” Id. § 19.1923(d). Finally, this same rule requires the facility to

make these incident reports available for review upon request by various state and federal agencies,

including DADS. See id. § 19.1923(e).



                                                  3
                The present dispute concerns two types of documents that Parkview creates and

maintains, at least in part, to satisfy the requirements of rule 19.1923. The first is a document or

form titled “Resident Incident Report” that contains information corresponding to that required of

the “[a]ccident or incident report[]” under rule 19.1923—the name of any resident to whom an

incident has occurred; witnesses; the date, time, and a description of the incident; circumstances or

conditions present when the incident occurred; the actions taken by Parkview personnel in response;

and the resident’s post-incident condition, including vital signs. See id. § 19.1923(c)(1). Further,

the Resident Incident Report categorizes incidents under “types” that include “skin tear–superficial,”

“fall,” and “other,” and similarly classifies injuries under “types” that include “skin tear,” “abrasion,”

and “none apparent.” The second type of Parkview document or form at issue is titled “Incident

Log,” which compiles and summarizes data from Resident Incident Reports for discrete one-month

periods, listing the affected resident’s name; incident date, time, and location; the “type” of incident

and injury; and the “disposition” or treatment administered. At the end of the Incident Log for

each one-month period, Parkview lists totals for each type of incident, type of injury, and incident

location. Parkview refers to its Incident Logs as its “tracking and trending” information, an apparent

allusion to rule 19.1923’s requirement that it “investigate incident/accidents . . . for trends . . .

includ[ing] type of accident, type of injury, time of day, staff involved, staffing level, and

relationship to past complaints.” See id. § 19.1923(d).

                In addition to requiring this type of record keeping by nursing homes, DADS

regulations require each “facility” to maintain a quality assessment and assurance (QA&A)

committee consisting of its director of nursing services, a designated physician, and at least

three other members of the facility’s staff. Id. § 19.1917(a) (Quality Assessment & Assurance). A


                                                    4
facility’s QA&A committee is to meet at least quarterly “to identify issues with respect to which

quality assessment and assurance activities are necessary,” “develop[] and implement[] appropriate

plans of action to correct identified quality deficiencies,” and “adopt and ensure implementation of

a policy to identify, assess, and develop strategies to control risk of injury to residents and nurses

associated with the lifting, transferring, repositioning, or moving of a resident.” Id. § 19.1917(b),

(e). Rule 19.1917 further provides that “Texas or the Secretary of Health and Human Services may

not require disclosure of the records of the [QA&A] Committee except insofar as such disclosure

is related to the compliance of the committee” with the rule’s requirements that it meet at

least quarterly and develop “plans of action” to correct “quality deficiencies.” Id. § 19.1917(c).

Additionally, “[g]ood faith attempts by the [QA&A] committee to identify and correct quality

deficiencies may not be used as a basis for sanctions.” Id. § 19.1917(d). Overlying this regulatory

protection for nursing home QA&A committees are statutory privileges afforded certain types of

medical communications, including the medical-committee privilege and the medical peer-review

committee privilege, both of which, stated generally, keep the records and proceedings of those

committees confidential and any communications made to them privileged. See Tex. Health &

Safety Code § 161.032 (medical-committee privilege ); Tex. Occ. Code § 160.007 (medical peer-

review committee privilege); In re Living Ctrs. of Tex., 175 S.W.3d 253, 259 (Tex. 2005) (discussing

various medical-committee privileges and holding that nursing home QA&A committees enjoy

medical-committee privileges).

               As required, Parkview has formed such a QA&A committee, which it describes as its

“central” committee of this sort and as a “type” of medical peer-review committee. See In re Living

Ctrs., 175 S.W.3d at 259 (noting similarities between QA&A committees and medical peer-


                                                  5
view committees). In addition to fulfilling its QA&A committee duties, see 40 Tex. Admin. Code

§ 19.1917, Parkview contends that it has structured the process by which its personnel gather and

utilize the information contained in its Resident Incident Reports and Incident Logs in such a way

as to make those documents, contemporaneously, products of its QA&A committee. Specifically,

according to the affidavit of owner and operator Vicki Cole, Parkview’s Resident Incident Reports

and Incident Logs are “submitted to and evaluated by” the QA&A committee “for the purpose

of improving resident care” through “self-evaluation and critical review.” Cole’s affidavit further

explains that the information recorded, maintained, presented, reviewed, and generated in this

context, is kept as confidential and privileged. Finally, Parkview emphasizes, whenever a federal

or state agency, such as DADS, investigates Parkview and requests its Resident Incident Reports and

Incident Logs—which it terms “QA[&A] information”—its QA&A committee, not Parkview

generally, is the entity that provides the information to the requesting body. In fact, Parkview goes

as far to urge that because its Resident Incident Reports and Incident Logs are, in these ways,

“QA&A committee product,” DADS is not allowed even to ask for this information.

                The genesis of the underlying dispute was a “complaint” (i.e., an allegation other

than one reported by the facility itself3) made to DADS concerning care of a Parkview resident. This

triggered an investigation of Parkview by a DADS surveyor, Debra Adams, who ultimately spent

all or part of eleven days at the facility. See Tex. Health & Safety Code § 242.126 (requiring

DADS to investigate reports of abuse and neglect).4 During such an investigation or inspection


       3
           See id. § 19.101(19) (defining “complaint”).
       4
          During its 2011 session, the Legislature repealed Subchapter E of Chapter 242 of the
Texas Health and Safety Code, which includes section 242.126. See Act of June 27, 2011, 82d Leg.,
1st C.S., ch. 7, § 1.05(m), 2011 Tex. Gen. Laws 5390, 5407 (“Subchapter E, Chapter 242,

                                                 6
of a nursing home, DADS is to make a determination as to whether the facility has violated

any applicable regulations. See 40 Tex. Admin. Code § 19.2004 (Determinations & Actions

Pursuant to Inspections); see also id. § 19.101(53) (defining “inspection” as including “complaint

investigation”). DADS is to list any violations (also termed “deficiencies”) on forms designed for

that purpose, discuss the deficiencies with the facility’s management, and elicit and approve a “plan

of correction” from the facility that is also memorialized in the form. See id. § 19.2004(b)–(f). The

record reflects that DADS utilizes two forms for these purposes, one promulgated by the federal

Center for Medicaid Services (CMS) and known as a “CMS-2567,” titled “Statement of Deficiencies

and Plan of Correction”; the other a state form used for licensing purposes and known as a

“3724,” and titled “Statement of Licensing Violations and Plan of Correction.” A nursing home may

challenge a finding of a deficiency through an administrative process. See id. § 19.2147 (Remedies

in Medicaid-Certified Facilities) (providing for informal dispute-resolution process).

               During her investigation, Adams interviewed several Parkview employees

and requested, obtained, and reviewed not only Parkview patient clinical files but also its

Resident Incident Reports and Incident Logs. When Adams concluded her inquiry, she did not

find a deficiency in connection with the complaint that had originally prompted her investigation,

but she nonetheless cited Parkview for a different alleged deficiency related to the training or

skill of Parkview’s nurse’s aides in performing a certain aspect of patient care. Adams prepared a



Health and Safety Code, is repealed.”); see also id. § 1.05(c), 2011 Tex. Gen. Laws at 5399 (adding
chapter titled “Reports of Abuse, Neglect, and Exploitation of Residents of Certain Facilities”)
(codified at Tex. Health & Safety Code §§ 260A.001–.018). But the Legislature included a savings
clause continuing the prior law in effect as to any conduct occurring before the legislation’s effective
date. See id., § 1.05(q), 2011 Tex. Gen. Laws at 5408. All the conduct relevant to this case occurred
before the legislation’s effective date.

                                                   7
form CMS-2567 summarizing her conclusions and Parkview’s plan of correction. To support her

assertions that a deficiency in skill or training was present, Adams referenced her own personal

observations, her interviews with Parkview personnel, and the contents of patient medical records.

She also summarized and, in one instance, directly quoted portions of various individual Resident

Incident Reports that, in her view, illustrated examples of the deficiency she had alleged. Adams

likewise discussed the manner in which Parkview tracked or categorized such events in its Incident

Logs. See Tex. Health & Safety Code § 242.126 (requiring final written report).

               Upon receipt of Adams’s completed CMS-2567 form, Parkview sought injunctive

and declaratory relief in the district court below to prevent DADS from publicly disclosing certain

excerpts of the CMS-2567 that quote, summarize, or reference the contents of Resident Incident

Reports or Incident Logs. See Tex. Gov’t Code § 552.325 (listing proper parties to suit seeking to

withhold information). Parkview urged that the information in question was confidential by law,

such that disclosure was barred, by virtue of the regulatory QA&A protection and the statutory

medical-committee privileges. Parkview further asserted that Adams and DADS had violated the

prohibition against relying on “[g]ood faith attempts by the [QA&A] committee to identify and

correct quality deficiencies . . . as a basis for sanctions.” 40 Tex. Admin. Code § 19.1917(d).

               Parkview succeeded in obtaining a temporary restraining order barring DADS

from disclosing the excerpts in question, and its claims proceeded to final hearing.5 To establish its

privilege claims, Parkview presented Cole’s affidavit and the live testimony of its administrator



       5
          In the meantime, CMS intervened and removed the case to federal district court. On
motion of Parkview, the federal district court, concluding that CMS lacked a justiciable interest in
the proceeding, dismissed the agency’s intervention and remanded the case back to the district court
below.

                                                  8
and QA&A committee chair, Kristi Dian Beauchamp. It also tendered for in camera inspection a

copy of Adams’s completed CMS-2567 form, with the disputed excerpts highlighted, along with

copies of its Resident Incident Reports and Incident Logs whose contents, Parkview claimed, had

been improperly quoted or incorporated in the completed form. DADS presented the testimony of

Carol Ahmed, its director of survey operations.

               After hearing evidence, the district court ultimately signed a final judgment denying

Parkview’s claims for injunctive and declaratory relief in full. In its judgment, the court specifically

concluded that DADS—


       may use the documents at issue for statutorily authorized purposes to include, but
       not limited to, 1) internal use of the incident reports [and] tracking and trending
       documents; 2) release of redacted, or de-identified, complete written investigation
       reports in response to an open records request; 3) release of redacted, or de-identified,
       Federal Form 2567 and State Form 3724 [i.e., the state licensing form] in response
       to an open records request; and 4) posting of general or broad descriptions of the
       deficiencies contained in Forms 2567 and 3724 on the DADS Long Term Care
       Quality Reporting System.


The district court did not make findings of fact and conclusions of law to elaborate on the bases for

its judgment, nor were any requested.6 This appeal ensued.




       6
          Parkview emphasizes that the district court discussed rationales for its ruling, in both
written correspondence to the parties and oral statements made during a hearing, before it signed its
judgment. However, Parkview ultimately acknowledges that such statements, as contrasted with
written findings of fact and conclusions of law made in support of the signed judgment, do not
impact the scope of our appellate review. 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).

                                                   9
                                             ANALYSIS

                Parkview brings two issues on appeal. In its first, Parkview contends that the

district court erred in permitting DADS and Adams to quote verbatim, in a document subject to

public disclosure, the contents of its Resident Incident Reports and Incident Logs because those

contents were confidential and privileged, and were not a proper basis for the cited deficiencies.

Predicated on its argument and analysis in support of its first issue, Parkview urges in its second

issue that the district court erred in refusing its claims for declaratory and injunctive relief.

                The analytical linchpin of Parkview’s contentions is its assertion that its above-

described process whereby its QA&A committee utilizes the information contained in its Resident

Incident Reports and Incident Logs makes those documents, contemporaneously, documents of its

QA&A committee and, in turn, confidential and privileged under the statutory medical-committee

privileges, see Tex. Health & Safety Code § 161.032 (medical-committee privilege); Tex. Occ.

Code § 160.007 (medical peer-review privilege), and subject to rule 19.1917’s tight restrictions on

regulators’ ability to access or use the information, see 40 Tex. Admin. Code § 19.1917(c), (d). As

such, Parkview contends, DADS had no right to request or obtain those documents from Parkview

in the first place, let alone incorporate or quote verbatim the contents of those records in its

completed written investigation report, a document that would be open to the public. See id.

§ 19.2010(b) (making completed investigation reports open to public); see also Tex. Gov’t Code

§ 552.022 (“completed report . . . by a governmental body” is public information). Parkview adds

that allowing DADS to access those documents and incorporate them into its public investigation

reports would “dismantle” the QA&A regulatory process, have a “chilling effect” on the medical

community’s efforts to improve patient care, and severely damage the collaborative relationship and


                                                   10
free flow of information between nursing homes and DADS that is envisioned by the Health Code.

See Tex. Health & Safety Code § 242.001(a) (describing Chapter 242’s purposes). DADS argues

in response that Parkview’s QA&A procedures do not affect DADS’s statutory and regulatory

authority to obtain and use Parkview’s rule 19.1923 incident reports and tracking/trending

documents—i.e., its Resident Incident Reports and Incident Logs—including using information from

those documents in a de-identified final, written report.

                The parties’ competing contentions turn ultimately on construction of statutes and

administrative rules, which present questions of law that we review de novo under traditional

principles of statutory construction. See TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432,

438 (Tex. 2011) (holding that administrative rules are interpreted under principles of statutory

construction); City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (“Statutory construction is a legal

question we review de novo.”). Our primary objective is to ascertain and give effect to the drafters’

intent. See TGS-NOPEC, 340 S.W.3d at 439 (citing Tex. Gov’t Code § 312.005; Texas Dep’t

of Protective & Regulatory Servs. v. Mega Child Care, 145 S.W.3d 170, 176 (Tex. 2004)). We

determine that intent from the plain meaning of the words chosen when it is possible to do so, using

any definitions provided. See id. (citing Tex. Gov’t Code § 311.011(b)). We consider the statutes

or rules as a whole rather 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 that the enactment’s language

was chosen with care, with each word included (or omitted) purposefully. See id. (citing In re M.N.,

262 S.W.3d 799, 802 (Tex. 2008)). Undefined terms are typically given their ordinary meaning, but

if a different or more precise definition is apparent from the terms’ use in context, we apply that

meaning. Id. (citing In re Hall, 286 S.W.3d 925, 928–29 (Tex. 2009)). If the text of the enactment


                                                   11
is unambiguous, we adopt the interpretation supported by its plain language unless such an

interpretation 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). If the text is ambiguous, however, we are to defer

to an authoritative administrative construction that is reasonable and consistent with the text of the

provision. See id. at 438 (“If there is vagueness, ambiguity, or room for policy determinations in a

statute or regulation, as there is here, we normally defer to the agency’s interpretation unless it is

plainly erroneous or inconsistent with the language of the statute, regulation, or rule.”).

               We are compelled to agree with DADS that its construction and application of the

relevant statutes and rules is, if not the sole correct construction, at least reasonable and not

inconsistent with the text of those provisions, such that we should defer to it. As DADS suggests,

Parkview’s creation and maintenance of its Resident Incident Reports and Incident Logs derives

from statutory and regulatory requirements that are distinct in origin and purpose from those

governing the proceedings and records of its QA&A committee. DADS regulations specifically

require the “facility”—i.e., the nursing home, see 40 Tex. Admin. Code § 19.101(40) (defining

“facility” as “the institution” that provides nursing care); see also Tex. Health & Safety Code

§ 242.002(6), (10) (defining “facility” and “institution”)—to create and keep these documents, to

investigate accidents, incidents, and complaints for trends, and to make the incident reports available

for review upon request. See 40 Tex. Admin. Code §§ 19.1923(a), (d), (e), .2002(h); see also

Tex. Health & Safety Code § 242.049(c) (specifying that DADS may require nursing homes to

submit information necessary to improve quality of care in nursing homes). A different rule requires

Parkview to maintain a QA&A committee, prescribes that committee’s proceedings, and provides

the privileges that attach to proceedings and records of that committee. See 40 Tex. Admin. Code


                                                  12
§ 19.1917. Unlike the rule governing the Resident Incident Reports and Incident Logs, the focus

of the rule governing QA&A committees is not information-gathering in itself, but collaboration

among a “group of healthcare professionals in a facility” to “develop and implement appropriate

action to identify and rectify substandard care and deficient facility practice.” See id. §§ 19.101(112)

(defining QA&A committee), .1917(b) (describing committee’s role and purpose); see also In re

Living Ctrs., 175 S.W.3d at 260 (noting that these types of medical committees “foster candid

internal discussion for the purpose of making improvements in the quality of care”). Likewise, it is

this evaluative process by the QA&A committee, and any resulting conclusions or plans, that would

be the product of that committee, and thereby subject to the QA&A protections from disclosure,

not the bare facts or information about incidents or accidents at the nursing home that might be

provided to the committee for analysis. See In re Living Ctrs., 175 S.W.3d at 260 (noting that

privilege “protects products of the peer review process,” but does not protect otherwise available

information simply because it was reviewed by committee). Against the backdrop of this regulatory

framework, DADS appropriately determined that Parkview’s practice of providing underlying facts

and information to its QA&A committee in the form of Resident Incident Reports and Incident Logs

it compiles under rule 19.1923 does not ipso facto convert those reports and logs into privileged

records of its QA&A committee.

                Alternatively, even assuming Parkview’s practices could have made its Resident

Incident Reports and Incident Logs records “of” its QA&A committee in some relevant sense,

rule 19.1923 would still support DADS’s determination that the information was not privileged.

Regardless of their characterization, the incident reports and tracking logs created pursuant to

rule 19.1923 “must be released upon request” in connection with an inspection or survey because


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

see also Tex. Health & Safety Code § 242.043 (“The department is entitled to access to books,

records, and other documents maintained by or on behalf of an institution.”). Nor, contrary to

Parkview’s arguments, would allowing DADS to access and use these documents in an investigation

violate rule 19.1917’s prohibition against punishing a nursing home for its QA&A committee’s

efforts to identify and correct quality deficiencies. See 40 Tex. Admin. Code § 19.1917(d) (“Good

faith attempts by the committee to identify and correct quality deficiencies may not be used as a

basis for sanctions.”). The documentation of incidents and accidents at a facility in compliance

with mandatory licensing terms cannot be fairly characterized as a “good faith attempt” to do

anything other than comply with the licensing requirement. Similarly, the records at issue here do

not document or identify “quality deficiencies,” a term that suggests qualitative analysis or judgment,

but instead “detail . . . every accident or incident” that occurs at the facility. See id. § 19.1923(a).

And while the incident reports and logs may be analyzed to identify these deficiencies, it is

the analysis and examination leading to the identification of a deficiency that is protected by the

QA&A committee privilege and rule 19.1917, not the incidents themselves, that are privileged.

Stated another way, the “good faith efforts to identify and correct quality deficiencies” are,

for example, the subsequent analysis or evaluation of the incident reports and tracking logs, the

resulting determination of causation, recommended actions, and a plan to eliminate the problem.

Rule 19.1917 protects a nursing home from being sanctioned based on a good-faith attempt to

identify or correct a deficiency, but it does not protect the nursing home from the consequences of

the underlying deficiencies themselves. Parkview’s Resident Incident Reports and Incident Logs

were not the basis for the adverse DADS report here—the accidents and incidents themselves were.


                                                  14
Thus, to the extent that Parkview is suggesting that the documentation and tracking of incidents and

accidents by a QA&A committee should insulate a nursing home from review of those events, that

would circumvent Chapter 242’s goal of making nursing homes accountable for resident care. See

Tex. Health & Safety Code § 242.001(d)(4) (requiring nursing homes to “provid[e] the public with

information concerning the operation of institutions in this state”). It would also directly contradict

the DADS regulation making these documents available to the public. See 40 Tex. Admin. Code

§§ 19.1923(e), .2202(h). Accordingly, DADS acted consistently with these enactments in requesting

these documents and in including information from them in its written investigation report.

               Similarly, Parkview’s Resident Incident Reports and Incident Logs would not be

protected as QA&A-committee product under the relevant statutory medical-committee privileges

because they are made or maintained in the regular course of Parkview’s nursing-home business.

The medical-committee privileges specifically except from the privilege those records that are

“made or maintained in the regular course of business.” See Tex. Health & Safety Code § 161.032(f)

(providing that the privilege does not apply “to records made or maintained in the regular course

of business by a” nursing home); Tex. Occ. Code § 161.032(f) (same for medical peer-review

committee); In re Living Ctrs., 175 S.W.3d at 257 (discussing business-records exception to

medical-committee privileges). Parkview, like other licensed nursing homes in Texas, must comply

with state and federal nursing-home regulations to keep its license. See Tex. Health & Safety

Code § 242.031. As discussed at length above, rule 19.1923 mandates that it create and maintain

the incident reports and tracking logs at issue here and make them available to DADS upon request.

See 40 Tex. Admin. Code § 19.1923(a). Certainly, documents that the nursing home itself must

create, maintain, and present upon request to stay licensed are documents that are “made


                                                  15
or maintained in the regular course of [that] business.” See Memorial Hosp.-The Woodlands

v. McCown, 927 S.W.2d 1, 10 (Tex. 1996) (holding that this exception means “records kept in

connection with the treatment of [a hospital’s] individual patients as well as the business and

administrative files and papers apart from committee deliberations”); see also In re Living Ctrs.,

175 S.W.3d at 257–58 (citing McCown for same proposition).

               This construction also comports with the purposes of the medical-committee

privileges—i.e., to “promote free discussion in evaluation of health care professionals and health

services,” see In re Living Ctrs., 175 S.W.3d at 258–59—by protecting the evaluative processes of

those committees, but not the underlying facts being evaluated, such as “records made or maintained

in the regular course of business” by the facility or the documents that simply pass through the

committee. See id. at 257. “The privilege extends only to information generated by the hospital

committee in its investigation or review process.” Barnes v. Whittington, 751 S.W.2d 493, 496

(Tex. 1988) (emphasis added); see McCown, 927 S.W.2d at 3 (noting that privileged documents are

those “generated in connection with a review”); see also In re Living Ctrs., 175 S.W.3d at 257

(quoting McCown for proposition that documents protected under medical-committee privileges “are

those ‘generated’ by a committee or ‘prepared by or at the direction of the committee for committee

purposes’”). “Texas courts have consistently limited the peer-review committee privileges to those

documents generated by the committee as a result of the committee’s deliberative processes and to

those submitted to the committee at their direction and in furtherance of the committee.” 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). Parkview’s Resident Incident

Reports and Incident Logs are not information generated in or from an investigation or review


                                                16
process. They are documents mandatorily generated in response to and with the purpose of recording

the factual details of an incident or accident at the nursing home to comply with a regulatory

requirement of Parkview’s nursing-home license. They contain no analysis, evaluation, or opinion,

only facts about the incident. As such, while they might be the subject of an investigation or review

process, they themselves are not the product of such an evaluative process.

               Finally, we would note that DADS regulations and the Health & Safety Code

contemplate the eventual release of the information contained in Parkview’s Resident Incident

Reports and Incident Logs in the manner that occurred here. While rule 19.2010 specifies that the

reports, records, and working papers used by DADS in an investigation—e.g., including, here,

Parkview’s Resident Incident Reports and Incident Logs—are confidential, it also specifies that those

same documents “may be released to the public” if done so in a completed written investigation

report, “provided the report is de-identified.” See 40 Tex. Admin. Code § 19.2010(a). Likewise, to

comport with its goal of protecting residents by making sure that nursing homes “provide the public

with information concerning the operation of” nursing homes, see Tex. Health & Safety Code

§ 242.001(d)(4), the Legislature has mandated that DADS “establish proper procedures to ensure that

copies of all forms and reports [in connection with DADS investigations] are made available to

consumers, service recipients, and the relatives of service recipients as the department considers

proper.” Id. § 242.043(f). Further, and more important, the Health and Safety Code requires DADS,

upon receipt and investigation of a complaint of abuse, to produce a written investigation report that

includes the investigator’s personal observations, a review of relevant documents and records, a

summary of each witness statement, and a statement of the factual basis for the findings, and to make

that investigation report open to the public once de-identified. See id. § 242.126(e), (g).


                                                 17
                In response, Parkview asserts that section 242.049, which it suggests is the authority

for rule 19.1923’s incident reports and tracking logs, requires DADS to keep those documents

privileged and confidential:


        The collection, compilation, and analysis of the information and any reports produced
        from these sources shall be done in a manner that protects the privacy of any
        individual about whom information is given and is explicitly confidential. The
        department shall protect and maintain the confidentiality of the information. The
        information received by the department, any information compiled as a result of
        review of internal agency documents, and any reports, compilations, and analyses
        produced from these sources shall not be available for public inspection or
        disclosure, nor are these sources public records within the meaning of [the Texas
        Public Information Act]. The information and any compilations, reports, or analyses
        produced from the information shall not be subject to discovery, subpoena, or other
        means of legal compulsion for release to any person or entity except as provided in
        this section and shall not be admissible in any civil, administrative, or criminal
        proceeding. This privilege shall be recognized by Rules 501 and 502 of the Texas
        Rules of Evidence.


Id. § 242.049(d).     Initially, we note that, given section 242.049’s silence on the subject,

section 242.037 is a more likely candidate for DADS’s rulemaking authority:


        The department shall make and enforce rules and minimum standards to implement
        this chapter, including rules and minimum standards relating to quality of life, quality
        of care, and residents’ rights.


Id. §§ 242.037(a), .049. Section 242.049, on the other hand, provides that, in the context of DADS’s

“evaluat[ion of] data for quality of care,” nursing homes “may be required to submit information

designated by the department as necessary to improve the quality of care in nursing homes.” See id.

§ 242.049(a), (c). Regardless, however, even though section 242.049 requires DADS to keep the

quality-of-care information and reports confidential, it also acknowledges that public information,

such as the investigation report at issue in this case, might be a source of quality-of-care information

                                                  18
considered by DADS and, as discussed above, it specifically emphasizes that such public

information retains its status as public information:


       Any information, reports, and other documents produced which are subject to any
       means of legal compulsion or which are considered to be public information under
       Subchapter E [regarding reports and investigation of abuse] and the rules adopted
       under that subchapter shall continue to be subject to legal compulsion and be treated
       as public information under Subchapter E after the effective date of this Act, even
       though such information, reports, and other documents may be used in the collection,
       compilation, and analysis described in Subsections (b) and (d).


Id. § 242.049(i); see also id. §§ 242.121–.135 (Subchapter E, “Reports of Abuse and Neglect”).7

The investigation of Parkview underlying this appeal was initiated in connection with a complaint

regarding a Parkview resident, and resulted in the written investigation report that is at issue here.

See id. § 242.126(a), (e) (requiring investigation of complaint alleging abuse and written

investigation report). As such, DADS’s de-identified written investigation report of Parkview is

public information. Id. § 242.126(g) (DADS must make de-identified report available to public).

               Parkview also suggests that the Texas Supreme Court’s decision in In re Living

Centers, 175 S.W.3d 253, and two decisions from this Court, see Capital Senior, 132 S.W.3d at 76;

Ebony Lake Nursing Center v. Texas Dep’t of Human Servs., 62 S.W.3d 867, 873–74

(Tex. App.—Austin 2001, no pet.), support its contention that the very documents at issue in this

case—i.e., regulatorily required incident reports and tracking logs—are privileged under the medical-

committee privileges. We disagree. Although the documents in In re Living Centers were described

as incident reports and logs, the supreme court held only that those particular documents “may be



       7
        As discussed in footnote 4, Subchapter E was repealed by the Legislature in 2011. See
2011 Tex. Gen. Laws 5390 at 5407.

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privileged,” but that further review by the trial court was necessary because the documents had been

improperly deemed not privileged based solely on the fact that they had not been physically marked

as QA&A documents. See id. at 261 (emphasis added). In other words, the supreme court did not

hold that the incident reports and tracking logs required by DADS regulations are QA&A documents

entitled to the QA&A privilege. The supreme court instead directed the trial court to vacate its prior

order to produce all the documents that were not physically marked as confidential, and to determine

on further examination whether those documents may be privileged. Id. at 262. Finally, In re Living

Centers addressed whether the reports and logs themselves were privileged in connection with a

discovery request in a wrongful death action, not whether a completed, written investigation report

by DADS could include de-identified portions of those documents. Id.

                Likewise, in Capital Senior, which involved an open records request to DADS, we

did not hold that a nursing home’s incident reports are privileged under the medical-committee

privileges. Instead, we held that the requested documents—which were reports of abuse rather than

the required incident reports at issue in this case—were confidential under rule 19.2010(a) “because

they had been used by DADS during its surveys and investigations.” 132 S.W.3d at 75–76. We also

specifically noted that the provision in rule 19.2010(a)(1) for de-identified information in completed

written investigation reports did not apply in Capital Senior because there was no completed

written report in that case. Id. at 76. Likewise in Ebony, which involved an open-records request

for a nursing home’s incident reports, we held that the nursing home had established that it was

entitled to a temporary injunction and remanded the matter to the trial court for a trial on the merits.

Importantly, however, in discussing the fact that the reports were required by law, we noted

the documents at issue in Ebony included more than just information about the particular


                                                  20
incidents that had occurred in the nursing home; they also included information regarding subsequent

investigations by the QA&A committee of the actions of some of the facility’s medical staff and

actions taken by the facility towards its employees as a result of the incidents. See 62 S.W.3d at 873.

In other words, the nursing home in Ebony presented evidence that their documents contained

information regarding the QA&A committee’s evaluative process. The documents in this case do

not contain any evaluative information.

               We overrule Parkview’s first issue on appeal. And because Parkview’s second issue

on appeal is predicated on a favorable disposition of its first issue, we overrule it as well.


                                          CONCLUSION

               Having overruled Parkview’s issues on appeal, we affirm the district court’s

judgment.



                                               __________________________________________
                                               Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Affirmed

Filed: January 10, 2014




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