Day Activity and Health Services Requirements

Subchapter A, Introduction

Revision 17-1

 

§98.1 Purpose

The purpose of this chapter is to:

  1. implement Texas Human Resources Code, Chapter 103, by establishing licensing procedures and standards for a DAHS facility; and
  2. establish requirements for a DAHS facility contracting with DADS to provide DAHS under Title XIX or Title XX of the Social Security Act.

 

§98.2 Definitions

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.

(1) Abuse — The negligent or willful infliction of injury, unreasonable confinement, intimidation or cruel punishment with resulting physical or emotional harm or pain to an elderly or disabled person by the person's caretaker, family member or other individual who has an ongoing relationship with the person, or sexual abuse of an elderly or disabled person, including any involuntary or nonconsensual sexual conduct that would constitute an offense under Texas Penal Code §21.08, (indecent exposure) or Texas Penal Code, Chapter 22, (assaultive offenses) committed by the person's caretaker, family member or other individual who has an ongoing relationship with the person.

(2) Adult — A person 18 years or older, or an emancipated minor.

(3) Affiliate — With respect to a:

(A) partnership, each partner of the partnership;
(B) corporation, each officer, director, principal stockholder, and subsidiary; and each person with a disclosable interest;
(C) natural person, which includes each:

(i) person's spouse;
(ii) partnership and each partner thereof of which said person or any affiliate of said person is a partner; and
(iii) corporation in which the person is an officer, director, principal stockholder or person with a disclosable interest.

(4) Ambulatory — Mobility not relying on walker, crutch, cane, other physical object or use of wheelchair.

(5) Applicant — A person applying for a license under Texas Human Resources Code, Chapter 103.

(6) Authorization — A case manager's decision, before DAHS begins and before payment can be made, that DAHS may be provided to an individual.

(7) Case manager — A DADS employee who is responsible for DAHS case management activities. Activities include eligibility determination, individual enrollment, assessment and reassessment of an individual's need, service plan development, and intercession on the individual's behalf.

(8) Caseworker — Case manager.

(9) Change of Ownership— An event that results in a change to the federal taxpayer identification number of the license holder of a facility. The substitution of a personal representative for a deceased license holder is not a change of ownership.

(10) Client — Individual.

(11) Construction, existing — See definition of existing building.

(12) Construction, new — Construction begun after April 1, 2007.

(13) Construction, permanent — A building or structure that meets a nationally recognized building code's details for foundations, floors, walls, columns, and roofs.

(14) DADS — The Department of Aging and Disability Services.

(15) DAHS — Day activity and health services. Health, social, and related support services.

(16) DAHS facility — A facility that provides services under a day activity and health services program on a daily or regular basis, but not overnight, to four or more elderly persons or persons with disabilities who are not related by blood, marriage or adoption to the owner of the facility.

(17) DAHS program — A structured, comprehensive program offered by a DAHS facility that is designed to meet the needs of adults with functional impairments by providing DAHS in accordance with individual plans of care in a protective setting.

(18) Days— Calendar days, unless otherwise specified.

(19) Department— Department of Aging and Disability Services.

(20) Dietitian consultant — A registered dietitian; a person licensed by the Texas State Board of Examiners of Dietitians; or a person with a bachelor's degree with major studies in food and nutrition, dietetics, or food service management.

(21) Direct service staff — An employee or contractor of a facility who directly provides services to individuals, including the director, a licensed nurse, the activities director, and an attendant. An attendant includes a driver, food service worker, aide, janitor, porter, maid, and laundry worker. A dietitian consultant is not a member of the direct service staff.

(22) Director — The person responsible for the overall operation of a facility.

(23) Direct ownership interest — Ownership of equity in the capital, stock, or profits of, or a membership interest in, an applicant or license holder.

(24) Disclosable interest — Five percent or more direct or indirect ownership interest in an applicant or license holder.

(25) Elderly person — A person 65 years of age or older.

(26) Existing building — A building or portion thereof that, at the time of initial inspection by DADS, is used as an adult day care occupancy, as defined by Life Safety Code, NFPA 101, 2000 edition, Chapter 17 for existing adult day care occupancies; or has been converted from another occupancy or use to an adult day care occupancy, as defined by Chapter 16 for new adult day care occupancies.

(27) Exploitation — An illegal or improper act or process of a caretaker, family member or other individual, who has an ongoing relationship with the elderly person or person with a disability, using the resources of an elderly person or person with a disability for monetary or personal benefit, profit or gain without the informed consent of the elderly person or person with a disability.

(28) Facility — A licensed DAHS facility.

(29) Fence — A barrier to prevent elopement of an individual or intrusion by an unauthorized person, consisting of posts, columns, or other support members, and vertical or horizontal members of wood, masonry, or metal.

(30) FM — FM Global (formly known as Factory Mutual). A corporation whose approval of a product indicates a level of testing and certification that is acceptable to DADS.

(31) Fraud — A deliberate misrepresentation or intentional concealment of information to receive or to be reimbursed for service delivery to which an individual is not entitled.

(32) Functional impairment — A condition that requires assistance with one or more personal care services.

(33) Health assessment — An assessment of an individual by a facility used to develop the individual's plan of care.

(34) Health services — Services that include personal care, nursing, and therapy services.

            (A) Personal care services include:

                        (i) bathing;

                        (ii) dressing;

                        (iii) preparing meals;

                        (iv) feeding;

                        (v) grooming;

                        (vi) taking self-administered medication;

                        (vii) toileting;

                        (viii) ambulation; and

                        (ix) assistance with other personal needs or maintenance.

            (B) Nursing services may include:

                        (i) the administration of medications;

                        (ii) physician-ordered treatments, such as dressing changes; and

                        (iii) monitoring the health condition of the individual.

            (C) Therapy services may include:

                        (i) physical;

                        (ii) occupational; and

                        (iii) speech therapy.

(35)  Human services — Include the following services:

            (A) personal social services, including:

                        (i) DAHS;

                        (ii) counseling;

                        (iii) in-home care; and

                        (iv) protective services;

            (B) health services, including:

                        (i) home health;

                        (ii) family planning;

                        (iii) preventive health programs;

                        (iv) nursing facility; and

                        (v) hospice;

            (C) education services, meaning:

                        (i) all levels of school;

                        (ii) Head Start; and

                        (iii) vocational programs;

            (D) housing and urban environment services, including public housing;

            (E) income transfer services, including:

                        (i) Temporary Assistance for Needy Families; and

                        (ii) Supplemental Nutrition Assistance Program; and

            (F) justice and public safety services, including:

                        (i) parole and probation; and

                        (ii) rehabilitation.

(36) Human service program — An intentional, organized, ongoing effort designed to provide good to others. The characteristics of a human service program are:

            (A) dependent on public resources and are planned and provided by the community;

            (B) directed toward meeting human needs arising from day-to-day socialization, health care, and developmental experiences; and

            (C) used to aid, rehabilitate, or treat people in difficulty or need.

(37) Indirect ownership interest — Any ownership or membership interest in a person that has a direct ownership interest in an applicant or license holder.

(38) Individual — A person who applies for or is receiving services at a facility.

(39) License holder — A person that holds a license to operate a facility.

(40) Licensed vocational nurse (LVN) — A person licensed by the Texas Board of Nursing who works under the supervision of a registered nurse (RN) or a physician.

(41) Life Safety Code, NFPA 101 — The Code for Safety to Life from Fire in Buildings and Structures, NFPA 101, a publication of the National Fire Protection Association, Inc. that:

            (A) addresses the construction, protection, and occupancy features necessary to minimize danger to life from fire, including smoke, fumes, or panic; and

            (B) establishes minimum criteria for the design of egress features so as to permit prompt escape of occupants from buildings or, where desirable, into safe areas within the building.

(42) Long-term care facility — A facility that provides care and treatment or personal care services to four or more unrelated persons, including:

            (A) a nursing facility licensed under Texas Health and Safety Code, Chapter 242;

            (B) an assisted living facility licensed under Texas Health and Safety Code, Chapter 247; and

            (C) an intermediate care facility serving individuals with an intellectual disability or related conditions licensed under Texas Health and Safety Code, Chapter 252.

(43) Management services — Services provided under contract between the owner of a facility and a person to provide for the operation of a facility, including administration, staffing, maintenance, and delivery of services. Management services do not include contracts solely for maintenance, laundry, or food services.

(44) Manager — A person having a contractual relationship to provide management services to a facility.

(45) Medicaid-eligible — An individual who is eligible for Medicaid.

(46) Medically related program — A human services program under the human services-health services category in the definition of human services in this section.

(47) Neglect — The failure to provide for one's self  the goods or services, including medical services, that are necessary to avoid physical harm, mental anguish, or mental illness; or the failure of a caregiver to provide these goods or services.

(48) NFPA — The National Fire Protection Association. NFPA is an organization that develops codes, standards, recommended practices, and guides through a consensus standards development process approved by the American National Standards Institute.

(49) NFPA 10 — Standard for Portable Fire Extinguishers. A standard developed by NFPA for the selection, installation, inspection, maintenance, and testing of portable fire extinguishing equipment.

(50) NFPA 13 — Standard for the Installation of Sprinkler Systems. A standard developed by NFPA for the minimum requirements for the design and installation of automatic fire sprinkler systems, including the character and adequacy of water supplies and the selection of sprinklers, fittings, pipes, valves, and all maintenance and accessories.

(51) NFPA 70 — National Electrical Code. A code developed by NFPA for the installation of electric conductors and equipment.

(52) NFPA 72 — National Fire Alarm Code. A code developed by NFPA for the application, installation, performance, and maintenance of fire alarm systems and their components.

(53) NFPA 90A — Standard for the Installation of Air Conditioning and Ventilating Systems. A standard developed by NFPA for systems for the movement of environmental air in structures that serve spaces over 25,000 cubic feet or buildings of certain heights and construction types, or both.

(54) NFPA 90B — Standard for the Installation of Warm Air Heating and Air-Conditioning Systems. A standard developed by the NFPA for systems for the movement of environmental air in one- or two-family dwellings and structures that serve spaces not exceeding 25,000 cubic feet.

(55) NFPA 96 — Standard for Ventilation Control and Fire Protection of Commercial Cooking Operations. A standard developed by NFPA that provides the minimum fire safety requirements related to the design, installation, operation, inspection, and maintenance of all public and private cooking operations, except for single-family residential usage.

(56) Nurse — A registered nurse (RN) or a licensed vocational nurse (LVN) licensed in the state of Texas.

(57) Nursing services — Services provided by a nurse, including:

            (A) observation;

            (B) promotion and maintenance of health;

            (C) prevention of illness and disability;

            (D) management of health care during acute and chronic phases of illness;

            (E) guidance and counseling of individuals and families; and

            (F) referral to physicians, other health care providers, and community resources when appropriate.

(58) Person — An individual, corporation, or association.

(59) Person with a disability — A person whose functioning is sufficiently impaired to require frequent medical attention, counseling, physical therapy, therapeutic or corrective equipment, or another person's attendance and supervision.

(60) Physician's orders — An order that is signed and dated by a medical doctor (MD) or doctor of osteopathy (DO) who is licensed to practice medicine in the state of Texas. The DADS physician's order form used by a DAHS facility that contracts with DADS must include the MD's or DO's license number.

(61) Plan of care — A written plan, based on a health assessment and developed jointly by a facility and an individual or the individual's responsible party, that documents the functional impairment of the individual and the DAHS needed by the individual.

(62) Protective setting — A setting in which an individual's safety is ensured by the physical environment by staff.

(63) Registered nurse (RN) — A person licensed by the Texas Board of Nursing to practice professional nursing.

(64) Related support services — Services to an  individual, family member, or caregiver that may improve the person's ability to assist with an individual's independence and functioning. Services include:

            (A) information and referral;

            (B) transportation;

            (C) teaching caregiver skills;

            (D) respite;

            (E) counseling;

            (F) instruction and training; and

            (G) support groups.

(65) Responsible party — A person designated by an individual as the individual's representative.

(66) Safety — Protection from injury or loss of life due to conditions such as fire, electrical hazard, unsafe building or site conditions, and the presence of hazardous materials.

(67) Sanitation — Protection from illness, the transmission of disease, or loss of life due to unclean surroundings, the presence of disease transmitting insects or rodents, unhealthful conditions or practices in the preparation of food and beverage, or the care of personal belongings.

(68) Semi-ambulatory — Mobility relying on a walker, crutch, cane, other physical object, or independent use of wheelchair.

(69) Serious injury — An injury requiring emergency medical intervention or treatment by medical personnel, either at a facility or at an emergency room or medical office.

(70) Social activities — Therapeutic, educational, cultural enrichment, recreational, and other activities in a facility or in the community provided as part of a planned program to meet the social needs and interests of an individual.

(71) UL–Underwriters Laboratories, Inc. — A corporation whose approval of a product indicates a level of testing and certification that is acceptable to DADS.

(72) Working with people — Responsible for the delivery of services to individuals either directly or indirectly. Experience as a manager would meet this definition; however, an administrative support position such as a bookkeeper does not. Experience does not have to be in a paid capacity.

Subchapter B, Application Procedures

Revision 17-1

 

 

§98.11 Criteria for Licensing

(a) A person must not establish or operate a DAHS facility in Texas without a license issued by DADS in accordance with Texas Human Resources Code, Chapter 103, and this chapter.

(b) An applicant for a license must submit a complete application form and license fee to DADS.

(c) An applicant for a license must affirmatively demonstrate that the DAHS facility meets:

(1) the standards of the Life Safety Code, NFPA 101, 2000 edition;
(2) the construction standards in Subchapter C of this chapter (relating to Facility Construction Procedures); and
(3) the requirements for operation based on an on-site survey.

(d) DADS may deny an application that remains incomplete after 120 days.

(e) Before issuing a license, DADS considers the background and qualifications of:

(1) the applicant or license holder;
(2) a person with a disclosable interest;
(3) an affiliate of the applicant or license holder;
(4) a director; and
(5) a manager.

(f) DADS issues a license if it finds that the DAHS facility, and any person described in subsection (e) of this section meet all requirements of this chapter. The license is valid for two years, except as provided by §98.15(b)(1) of this subchapter (relating to Renewal Procedures and Qualifications).

(g) A facility must not provide services to more individuals than the number of individuals specified on its license.

(h) A facility must prominently and conspicuously post its license for display in a public area of the facility that is readily accessible to individuals, employees, and visitors.

 

§98.12 Building Approval

(a) Local fire authority. All applications for license must include the written approval of the local fire authority that the facility and its operation meet local fire ordinances. The written approval must be submitted on the forms and in the manner specified by DADS.

(b) Local health authority. The following procedures allow the local health authority to provide recommendations to DADS concerning licensure of a facility.

(1) New facility. The sponsor of a new facility under construction or a previously unlicensed facility will provide to DADS a copy of a dated written notice to the local health authority that construction or modification has been or will be completed by a specific date. The sponsor will also provide a copy of a dated written notice of the approval for occupancy by the local fire marshal or local building code authority, if applicable. The local health authority may provide recommendations to DADS' Regulatory Services Licensing and Credentialing Section regarding the status of compliance with local codes, ordinances or regulations.
(2) Increase in capacity. The license holder must request an application for increase in capacity from DADS' Regulatory Services Licensing and Credentialing Section. DADS' Regulatory Services Licensing and Credentialing Section must provide the license holder with the application form and the license holder must notify the local fire marshal and the local health authority of the request. The license holder must arrange for the inspection of the facility by the local fire marshal. The facility must send DADS' Regulatory Services Licensing and Credentialing Section a copy of the written notice sent to the local health authority notifying them of the increase in capacity. DADS will approve the application only if the facility is found to be in compliance with the standards. Approval to occupy the increased capacity may be granted by DADS before the issuance of the license covering the increased capacity after inspection by DADS if standards are met.
(3) Change of ownership. The applicant for a change of ownership license will provide to DADS a copy of a letter notifying the local health authority of the request for a change of ownership. The local health authority may provide recommendations to DADS regarding the status of compliance with local codes, ordinances or regulations.
(4) Renewal. DADS sends the local health authority a copy of DADS license renewal notice specifying the expiration date of the facility's current license. The local health authority may provide recommendations to DADS regarding the status of compliance with local codes ordinances or regulations. The local authority may also recommend that a state license be issued or denied; however, the final decision on licensure status remains with DADS.

§98.13 Applicant Disclosure Requirements

(a) Scope of section. No person may apply for a license, change of ownership, increase in capacity or renewal of a license to operate or maintain a facility without making a disclosure of information as required in this section.

(b) Disclosure form. All applications must be made on forms prescribed by and available from DADS. Each application must be completed in accordance with DADS instructions, signed and notarized.

(c) General information required.

(1) For initial applications and change of ownership only, evidence of the right to possession of the facility at the time the application will be granted, which may be satisfied by the submission of applicable portions of a lease agreement, deed or trust or appropriate legal document, must be filed with DADS. The names and addresses of any persons or organizations listed as owner of record in the real estate, including the buildings and grounds appurtenant to the buildings, must be disclosed to DADS.
(2) The certificate of account status issued by the Comptroller of Public Accounts must be filed for an initial application, a change of ownership or a renewal.
(3) The certificate of incorporation issued by the Secretary of State for a corporation or a copy of the partnership agreement for a partnership must be filed for an initial application or a change of ownership.
(4) At the request of DADS, an applicant or license holder must provide to DADS any additional background information after 30 days of DADS' request.

(d) License issued in fiduciary capacity. The provisions of this section do not apply to a bank, trust company, financial institution, title insurer, escrow company or underwriter title company to which a license is issued in a fiduciary capacity except for provisions that require disclosure relating to the manager of the facility.

 

§98.14 Increase in Capacity

(a) During the license term, a license holder may not increase capacity without approval from DADS. The license holder must submit to DADS a complete application for increase in capacity on a form provided by DADS.

(b) Upon approval of an increase in capacity, DADS will issue a new license.

 

§98.15 Renewal Procedures and Qualifications

(a) Each license issued under this chapter must be renewed before the license expiration date. Each license expires two years from the date issued, except as provided by subsection (b)(1) of this section. A license issued under this chapter is not automatically renewed.

(b) A facility must submit an application for license renewal and a renewal license will be valid as follows:

(1) For two years beginning September 1, 2008, a facility with a facility identification number that ends in an odd number (1, 3, 5, 7, or 9) must submit an application to renew its license before the expiration date on the license in accordance with this section. The facility's first renewal license issued after the effective date of this section is valid for one year, and subsequent renewal licenses are valid for two years.
(2) A facility with a facility identification number that ends in an even number (0, 2, 4, 6, or 8) must submit an application to renew its license before the expiration date on the license in accordance with this section. The facility's renewal licenses are valid for two years.

(c) The submission of a license fee alone does not constitute an application for renewal.

(d) To renew a license, a license holder must submit an application for renewal with DADS no later than the 45th day before the expiration date of the current license. DADS considers that an application for renewal has met the submission deadline, if the license holder:

(1) submits a complete application to DADS, and DADS receives that complete application no later than the 45th day before the expiration date of the current license;
(2) submits an incomplete application to DADS with a letter explaining the circumstances that prevented the inclusion of the missing information, and DADS receives the incomplete application and letter no later than the 45th day before the expiration date of the current license; or
(3) submits a complete application or an incomplete application with a letter explaining the circumstances that prevented the inclusion of the missing information to DADS, DADS receives the application during the 45-day period ending on the date the current license expires, and the license holder pays a late fee in accordance with §98.21(b) of this subchapter (relating to License Fees) in addition to the license renewal fee.

(e) If the application is postmarked by the submission deadline, the application will be considered to be timely filed if received in DADS' Regulatory Services Licensing and Credentialing Section within 15 days after the postmark, or within 30 days after the date of the postmark and the license holder proves to the satisfaction of DADS that the delay was due to the shipper. It is the license holder's responsibility to ensure that the application is timely received by DADS.

(f) For purposes of Texas Government Code, §2001.054, DADS considers that an individual has submitted a timely and sufficient application for the renewal of a license if the license holder's application has met the submission deadlines in subsections (d) and (e) of this section. Failure to submit a timely and sufficient application will result in the expiration of the license on the expiration date listed on the license.

(g) An application for renewal submitted after the expiration date of the license is considered to be an application for an initial license and must comply with the requirements for an initial license in §98.11 of this subchapter (relating to Criteria for Licensing) and §98.13 of this subchapter (relating to Application Disclosure).

(h) The application for renewal must contain the same information required for an original application and the license fee as described in §98.21 of this subchapter.

(i) The renewal of a license may be denied for the same reasons an original application for a license may be denied (see §98.19 of this subchapter (relating to Criteria for Denying a License or Renewal of a License)).

(j) The facility must have an annual inspection by the local fire marshal and must submit a copy of the most current inspection as part of the renewal procedures.

 

§98.16 Change of Ownership and Notice of Changes

(a) A license holder may not transfer its license.

(b) To avoid a gap in the license because of a change in ownership of the facility, a prospective license holder must submit to DADS a complete application for a license under §98.11 of this title (relating to Criteria for Licensing) at least 30 days before the anticipated date of a change of ownership. The applicant must meet all requirements for a license. If the applicant has filed a timely and sufficient application for a license and otherwise meets all requirements for a license, DADS will issue the applicant a license effective on the date of the change of ownership. DADS considers an applicant has filed a timely and sufficient application for a license if the applicant:

(1) submits a complete application to DADS and DADS receives that complete application at least 30 days before the anticipated date of change of ownership;
(2) submits an incomplete application to DADS with a letter explaining the circumstances that prevented the inclusion of the missing information and DADS receives the incomplete application and letter at least 30 days before the anticipated date of change of ownership; or
(3) submits an application to DADS and DADS receives the application by the date of change of ownership and the applicant proves to DADS satisfaction that the health and safety of the facility clients required an emergency change of ownership.

(c) If the application is postmarked by the filing deadline, the application will be considered to be timely filed if received in DADS Licensing and Credentialing Section, Regulatory Services Division, within 15 days after the postmark.

(d) DADS conducts an on-site health inspection to verify compliance with the licensure requirements before issuing a license as a result of a change of ownership. DADS may conduct a desk review instead of an on-site health inspection before issuing a license as a result of a change of ownership if:

(1) less than 50 percent of the direct or indirect ownership interest of the former license holder changed, when compared to the new license holder; or
(2) every person with a disclosable interest in the new license holder had a disclosable interest in the former license holder.

(e) DADS, in its sole discretion, may conduct an on-site Life Safety Code inspection before issuing a license as a result of a change of ownership.

(f) If a license holder adds an owner with a disclosable interest, but the license holder does not undergo a change of ownership, the license holder must notify DADS of the addition no later than 30 days after the addition of the owner.

 

§98.17 Change of Staff

(a) A new facility director must submit qualifying documentation (see §98.62 of this title (relating to Program Requirements)) for approval to the DADS Regulatory Services Regional Office within 30 days before or after the change. If the facility director leaves, a new facility director must be in place within 30 days after such vacancy.

(b) A new facility activities director must submit qualifying documentation (see §98.62 of this title) for approval within 30 days before or after the change. A new facility activities director must be in place within 30 days after such vacancy.

(c) If the facility does not have a director or activities director within 30 days after vacancy, the facility must submit a letter to the DADS Regulatory Services Regional Office requesting an extension. The DADS Regulatory Services Regional Office will notify the facility in writing of the length of extension.

 

§98.18 Time Periods for Processing Licensing Applications

(a) DADS will process only applications received within 60 days before the requested date of the issuance of the license.

(b) An application is complete when all requirements for licensing have been met, including compliance with standards. If an inspection for compliance is required, the application is not complete until the inspection has occurred, reports have been reviewed and the applicant complies with the standards.

(c) If the application is postmarked by the filing deadline, the application will be considered to be timely filed if received in DADS' Regulatory Services Licensing and Credentialing Section within 15 days after the postmark.

(d) Regulatory Services will notify facilities within 30 days after the application if any of the following applications are incomplete:

(1) initial application;
(2) change of ownership;
(3) renewal; and
(4) increase in capacity.

(e) Except as provided in the following sentence, a license will be issued or denied within 30 days ater the receipt of a complete application or within 30 days before the expiration date of the license. However, DADS may delay an action on an application for renewal of a license for up to six months if the facility is subject to a proposed or pending licensure termination action on or within 30 days before the expiration date of the license. The issuance of the license constitutes DADS' official written notice to the facility of the acceptance and filing of the application.

(f) In the event the application is not processed in the time periods as stated in this section, the applicant has a right to request of the program director full reimbursement of all filing fees paid in that particular application process. If the program director does not agree that the established periods have been violated or finds that good cause existed for exceeding the established periods, the request will be denied.

(g) Good cause for exceeding the period established is considered to exist if:

(1) the number of applications to be processed exceeds by 15% or more the number processed in the same calendar quarter of the preceding year;
(2) another public or private entity used in the application process caused the delay; or
(3) other conditions existed giving good cause for exceeding the established periods.

(h) If the request for full reimbursement is denied, the applicant may appeal directly to the DADS commissioner for resolution of the dispute. The applicant must send a written statement to the DADS commissioner describing the request for reimbursement and the reasons for it. The program director also may send a written statement to the DADS commissioner describing the program's reasons for denying reimbursement. The DADS commissioner makes a timely decision concerning the appeal and notifies the applicant and the program in writing of the decision.

 

§98.19 Criteria for Denying a License or Renewal of a License

(a) DADS may deny an initial license or refuse to renew a license if any person described in §98.11(e) of this subchapter (relating to Criteria for Licensing):

(1) is subject to denial or refusal as described in Chapter 99 of this title (relating to Denial or Refusal of License) during the time frames described in that chapter;
(2) substantially fails to comply with the requirements described in §§98.42, 98.43, 98.61, and 98.62 of this chapter (relating to Safety; Sanitation; General Requirements; and Program Requirements), including:

(A) noncompliance that poses a serious threat to health and safety; or
(B) a failure to maintain compliance on a continuous basis;

(3) aids, abets, or permits a substantial violation described in paragraph (2) of this subsection about which the person had or should have had knowledge;
(4) fails to provide the required information, facts or references;
(5) knowingly provides the following false or fraudulent information:

(A) submits false or intentionally misleading statements to DADS;
(B) uses subterfuge or other evasive means of filing; (C) engages in subterfuge or other evasive means of filing on behalf of another who is unqualified for licensure;
(D) knowingly conceals a material fact; or
(E) is responsible for fraud;

(6) fails to pay the following fees, taxes and assessments when due:

(A) licensing fees as described in §98.21 of this chapter (relating to License Fees); and
(B) franchise taxes, if applicable;

(7) has a history of any of the following actions during the five-year period preceding the date of the application:

(A) operation of a facility that has been decertified or had its contract canceled under the Medicare or Medicaid program in any state;
(B) federal or state Medicare or Medicaid sanctions or penalties;
(C) unsatisfied final judgments;
(D) eviction involving any property or space used as a facility in any state;
(E) suspension of a license to operate a health facility, long-term care facility, assisted living facility, or a similar facility in any state.

(b) Concerning subsection (a)(7) of this section, DADS may consider exculpatory information provided by any person described in §98.11(e) of this subchapter and grant a license if DADS finds that person able to comply with the rules in this chapter.

(c) DADS does not issue a license to an applicant to operate a new facility if the applicant has a history of any of the following actions during the five-year period preceding the date of the application:

(1) revocation of a license to operate a health care facility, long-term care facility, assisted living facility or similar facility in any state;
(2) debarment or exclusion from the Medicare or Medicaid programs by the federal government or a state; or
(3) a court injunction prohibiting any person described in §98.11(e) of this subchapter from operating a facility.

(d) Only final actions are considered for purposes of subsections (a)(7); and (c) of this section. An action is final when routine administrative and judicial remedies are exhausted. All actions, whether pending or final, must be disclosed.

(e) If an applicant owns multiple facilities, the overall record of compliance in all of the facilities will be examined. An overall record poor enough to deny issuance of a new license will not preclude the renewal of licenses of individual facilities with satisfactory records.

(f) If DADS denies a license or refuses to issue a renewal of a license, the applicant or license holder may request a hearing by following the Health and Human Services Commission's rules in 1 TAC, Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act). An administrative hearing is conducted in accordance with Texas Government Code, Chapter 2001, 1 TAC, Chapter 357, Subchapter I.

 

§98.20 Opportunity to Show Compliance

(a) Before the institution of proceedings to revoke or suspend a license or deny an application for the renewal of a license, DADS gives the license holder:

(1) notice by personal service or by registered or certified mail of the facts or conduct alleged to warrant the proposed action; and
(2) an opportunity to show compliance with all requirements of law for the retention of the license by sending the director of Regulatory Services a written request for an opportunity to show compliance. The request must:

(A) be postmarked within 10 days after the date of DADS' notice and be received in the state office of the director of Regulatory Services within 10 days after the date of the postmark; and
(B) contain specific documentation refuting DADS' allegations.

(b) DADS' review will be limited to a review of documentation submitted by the license holder and information used by DADS as the basis for its proposed action and will not be conducted as an adversary hearing. DADS will give the license holder a written affirmation or reversal of the proposed action.

 

§98.21 License Fees

(a) The license fee is $50. The license fee for a one-year license issued in accordance with §98.15(b)(1) of this subchapter (relating to Renewal Procedures and Qualifications) is $25. The fee must be paid with each initial application, change of ownership application, and with each application for renewal of the license. Payment of fees must be by check or money order made payable to the Department of Aging and Disability Services.

(b) An applicant for license renewal that submits an application during the 45-day period ending on the date the current license expires must pay a late fee of $25 in addition to the license fee described in subsection (a) of this section.

 

§98.22 Plan Review Fees

(a) DADS charges a fee to review plans for new buildings and the conversion of buildings not licensed by DADS, and for additions and the remodeling of existing licensed facilities.

(b) The fee schedule follows:

(1) New buildings or conversion of buildings not licensed by DADS—$12 per client (minimum $500 and maximum $1,000);
(2) Additions or remodeling of existing licensed facilities—2% of construction cost (minimum $250 and maximum $750).

 

§98.23 Relocation

(a) A license holder must not relocate a facility to another location without approval from DADS. The license holder must submit a complete application and the fee required under §98.21 of this title (relating to License Fees) to DADS before the relocation.

(b) Clients must not be relocated until the new building has been inspected and approved as meeting the standards of the Life Safety Code, NFPA 101, 2000 edition, as applicable to adult day care facilities.

(c) Following Life Safety Code, NFPA 101, 2000 edition, approval by DADS, the license holder must notify DADS of the date clients will be relocated. If the new facility meets the standards for operation based on an on-site survey, a license will be issued.

(d) The effective date of this license will be the date all clients are relocated.

(e) The license holder must continue to maintain the license at the current location and must continue to meet all requirements for operation of the facility until the date of the relocation.

Subchapter C, Facility Construction Procedures

Revision 11-1

 

 

§98.41 Construction and Initial Survey of Completed Construction

 

(a) Construction phase.

(1) DADS' Regulatory Services Licensing and Credentialing Section must be notified in writing before construction starts.

(2) All construction must be done in accordance with minimum licensing requirements. It is the sponsor's responsibility to employ qualified personnel to prepare the contract documents for construction of a new facility or remodeling of an existing facility. Contract documents for additions and remodeling and for the construction of an entirely new facility must be prepared by an architect licensed by the Texas Board of Architectural Examiners. Drawings must bear the seal of the architect. Certain parts of final plans, designs, and specifications must bear the seal of a registered professional engineer approved by the Texas Board of Professional Engineers to operate in Texas. These certain parts include sheets and sections covering structural, electrical, mechanical, and sanitary engineering.

 

(A) Remodeling is the construction, removal, or relocation of walls and partitions; the construction of foundations, floors, or ceiling-roof assemblies; the expanding or altering of safety systems (including sprinkler, fire alarm, and emergency systems); or the conversion of space in a facility to a different use.

(B) General maintenance and repairs of existing material and equipment, repainting, applications of new floor, wall, or ceiling finishes, or similar projects are not included as remodeling, unless as a part of new construction. DADS must be provided flame spread documentation for new materials applied as finishes.

 

(b) Contract documents.

(1) Site plan documents must include grade contours; streets with names; north arrow; fire hydrants; fire lanes; utilities, public or private; fences; unusual site conditions, such as ditches, low water levels, other buildings on-site; and indications of buildings five feet or less beyond site property lines.

(2) Foundation plan documents must include general foundation design and details.

 

(3) Floor plan documents must include room names, numbers, and usages; numbered doors including swing; windows; legend or clarification of wall types; dimensions; fixed equipment; plumbing fixtures; and kitchen basic layout; and identification of all smoke barrier walls (outside wall to outside wall) or fire walls.

 

(4) For both new construction and additions or remodeling to existing buildings, an overall plan of the entire building must be drawn or reduced to fit on an 8 1/2 inch by 11 inch sheet; two reduced plans must be submitted for file record. See subsection (d)(3) of this section.

 

(5) Schedules must include door materials, widths, types; window materials, sizes, types; room finishes; and special hardware.

 

(6) Elevations and roof plan must include exterior elevations, including material note indications and any roof top equipment; roof slopes, drains, and gas piping; and interior elevations where needed for special conditions.

 

(7) Details must include wall sections as needed (especially for special conditions); cabinet and built-in work, basic design only; cross sections through buildings as needed; and miscellaneous details and enlargements as needed.

 

(8) Building structure documents must include structural framing layout and details (primarily for column, beam, joist, and structural frame building); roof framing layout (when this cannot be adequately shown on cross section); cross sections in quantity and detail to show sufficient structural design and structural details as necessary to assure adequate structural design, also calculated design loads.

 

(9) Electrical documents must include electrical layout, including lights, convenience outlets, equipment outlets, switches, and other electrical outlets and devices; service, circuiting, distribution, and panel diagrams; exit light system (exit signs and emergency egress lighting); emergency electrical provisions (such as generators and panels); fire alarm and similar systems (such as control panel, devices, and alarms); sizes and details sufficient to assure safe and properly operating systems; and a staff communication system.

 

(10) Plumbing documents must include plumbing layout with pipe sizes and details sufficient to assure safe and properly operating systems, water systems, sanitary systems, gas systems, other systems normally considered under the scope of plumbing, fixtures, and provisions for combustion air supply.

 

(11) Heating, ventilation, and air-conditioning (HVAC) documents must include sufficient details of HVAC systems and components to assure a safe and properly operating installation, including heating, ventilating, and air-conditioning layout, ducts, protection of duct inlets and outlets, combustion air, piping, exhausts, and duct smoke, fire dampers, or combination fire and smoke dampers; and equipment types, sizes, and locations.

 

(12) If a sprinkler system is provided or required by any authority, documents must include plans and details of NFPA designed systems; plans and details of partial systems provided only for hazardous areas; and electrical devices interconnected to the alarm system.

 

(13) Other layouts, plans, or details as may be necessary for a clear understanding of the design and scope of the project, including plans covering private water or sewer systems must be reviewed by the local health or waste water authority having jurisdiction.

 

(14) Specifications must include installation techniques, quality standards and/or manufacturers, references to specific codes and standards, design criteria, special equipment, hardware, painting, and any others as needed to amplify drawings and notes.

 

(c) Initial survey of completed construction.  

 

(1) Upon completion of construction, including grounds and basic equipment and furnishings, a final construction inspection (initial survey) of the facility, including additions or remodeled areas, is required to be performed by the DADS Regulatory Services Regional Office before occupancy. The completed construction must have the written approval of the local authorities having jurisdiction, including the fire marshal and building inspector.   

(2) After the completed construction has been surveyed by DADS and found acceptable, this information will be conveyed to DADS' Regulatory Services Licensing and Credentialing Section as part of the information needed to issue a license to the facility. In the case of additions or remodeling of existing facilities, a revision or modification to an existing license may be necessary. The building, grades, drives, and parking must essentially be 100% complete at the time of this initial visit for occupancy approval and licensing, including basic furnishings and operational needs. A facility may accept up to three clients between the time it receives initial approval from DADS and the time the license is issued.

(3) The following documents must be available to DADS' surveyor at the time of the survey of the completed building:

(A) written approval of local authorities as called for in paragraph (1) of this subsection;  

(B) written certification of the fire alarm system by the installing agency (Fire Alarm Installation Certificate of the Texas State Fire Marshal);     

(C) documentation for all materials used in the building that are required to have a specific limited fire or flame spread rating, including special wall finishes or floor coverings, flame retardant curtains (including cubicle curtains), and rated ceilings. This documentation must include a signed letter from the installer verifying that the material installed is named in the laboratory test document;    

(D) approval of the completed sprinkler system installation by the designing engineer, including a copy of the material list and test certification;     

(E) service contracts for maintenance and testing of alarm systems, sprinkler systems, etc.;     

(F) a copy of gas test results of the facility's gas lines from the meter;

(G) a written statement from an architect or engineer stating that he certifies that the building was constructed to meet Life Safety Code, NFPA 101, 2000 edition, and all locally applicable codes, and that the facility is in substantial conformance with minimum licensing requirements; and

(H) the contract documents specified in subsection (b) of this section.

(d) Nonapproval of new construction.

(1) If, during the initial on-site survey of completed construction, the surveyor finds certain basic requirements not met, he may recommend to DADS that the facility not yet be licensed and approved for occupancy. Such basic items may include the following:

 

(A) construction that does not meet minimum code or licensure standards for basic requirements such as corridors being less than required width, ceilings installed at less than the minimum seven-foot six-inch height, client bedroom dimensions less than required, and other such features that would disrupt or otherwise adversely affect the clients and staff if corrected after occupancy;

(B) no written approval by local authorities;

 

(C) fire protection systems not completely installed or not functioning properly, including fire alarm systems, emergency power and lighting, and sprinkler systems;

(D) required exits not all usable according to Life Safety Code, NFPA 101, 2000 edition;

(E) telephone not installed or not properly working;    

(F) sufficient basic furnishings, essential appliances, and equipment are not installed or not functioning; and    

(G) any other basic operational or safety feature that the surveyor, as the authority having jurisdiction, encounters, which in his judgment would preclude safe and normal occupancy by clients on that day.   

(2) If the surveyor encounters only less basic and less important deficiencies, licensure may be recommended based on an approved written plan of correction from the facility's administrator.   

(3) Copies of reduced size floor plans on an 8 1/2 inch by 11 inch sheet must be submitted in duplicate to DADS for record or file use and for the facility's use and for facility's use for evacuation plan, fire alarm zone identification, etc. The plan must contain basic legible information such as scale, room usage names, actual bedroom numbers, doors, windows, and any other pertinent information.

 

§98.42 Safety

 

(a) Environmental safety.

(1) The physical plant safety requirements are designed to provide safety to the clients, participants, or adult individuals receiving day care.

(2) The facility must conform to all applicable state laws and local ordinances pertaining to occupancy. When these laws, codes, and ordinances are more stringent than the standards in this section, the more stringent requirements govern. If state laws or local codes or ordinances conflict with the requirements of these standards, DADS' Regulatory Services Licensing and Credentialing Section will be so informed so that these conflicts may be legally resolved.

(3) The facility must meet the provisions and requirements concerning accessibility for individuals with disabilities in the following laws and regulations: the Americans with Disabilities Act (ADA) of 1990 (Title 42, United States Code, Chapter 126); Title 28, Code of Federal Regulations, Part 35; Texas Government Code, Chapter 469, Elimination of Architectural Barriers; and 16 TAC, Chapter 68, Elimination of Architectural Barriers. Plans for new construction, substantial renovations, modifications, and alterations must be submitted to the Texas Department of Licensing and Regulation (Attn: Elimination of Architectural Barriers Program) for accessibility approval under Texas Government Code, Chapter 469. At least 50% of the client restrooms must be in accordance with ADA. Exception: Facilities licensed for 45 or fewer persons may provide one unisex restroom in accordance with accessibility requirements.

(4) DADS' jurisdiction extends beyond the licensed facility when the licensed area is only a part of a building or floor that is not fire-separated in accordance with the Life Safety Code, NFPA 101, 2000 edition, §16.1.2, New Day-Care Centers, or Life Safety Code, NFPA 101, 2000 edition, §17.1.2, Existing Day-Care Centers with Mixed Occupancies.

(b) Life Safety Code, NFPA 101, 2000 edition.

(1) The principles of the Life Safety Code, NFPA 101, 2000 edition, under Chapter 16 for new day-care centers or Chapter 17 for existing day-care centers, and operating features under §16.7 or §17.7, must be used in establishing life safety requirements for adult day care facilities, with the interpretation and exceptions as listed in paragraphs (2) and (3) of this subsection. Chapter 16 of the Life Safety Code, NFPA 101, 2000 edition, is applicable to new construction, conversions of existing unlicensed buildings, remodeling, and additions conducted after April 1, 2007. Chapter 17 of the Life Safety Code, NFPA 101, 2000 edition, is applicable to existing adult day-care facilities licensed before April 1, 2007. Life safety features and equipment installed in existing buildings that are now in excess of what is required by the Life Safety Code, NFPA 101, 2000 edition, must continue to be maintained or may be completely removed if prior written approval is obtained from DADS.

(2) Interpretations of the Life Safety Code, NFPA 101, 2000 edition, chapters 16 and 17, are as follows:

(A) The principles of chapters 16 and 17 apply to any size facility requiring licensing with four or more clients or participants.

(B) The principles of §16.1.4.2 and §17.1.4.2 relating to a building or portion thereof used less than 24 hours per day to house more than three adults requiring care, maintenance, and supervision by other than a relative apply to all facilities requiring licensing. A client must be ambulatory or semi-ambulatory and must not be bedridden. A client must not exhibit behavior that is harmful to the client or others.

(C) The manual fire alarm system and automatic smoke detection system must be installed in accordance with NFPA 72 National Fire Alarm Code series and state fire marshal licensing requirements.

(D) The facility must have a program to inspect, test, and maintain the fire alarm system and must execute the program at least once every six months.

(i) The facility must contract with a company that is registered by the State Fire Marshal's Office to execute the program.

(ii) The person who performs a service under the contract must be licensed by the State Fire Marshal's Office to perform the service and must complete, sign, and date an inspection form similar to the inspection and testing form in NFPA 72 for a service provided under the contract.

(iii) The facility must ensure fire alarm system components that require visual inspection are visually inspected in accordance with NFPA 72.

(iv) The facility must ensure fire alarm system components that require testing are tested in accordance with the NFPA 72.

(v) The facility must ensure fire alarm system components that require maintenance are maintained in accordance with NFPA 72.

(vi) The facility must ensure smoke dampers are inspected and tested in accordance with NFPA 101, 2000 Edition.

(vii) The facility must maintain onsite documentation of compliance with this subsection and have available for examination by DADS, operation and maintenance manuals, and a written sequence of operation.

(E) If the facility has a complete NFPA 13 system, the facility must have a program to inspect, test, and maintain the sprinkler system and must execute the program at least once every six months.

(i) The facility must contract with a company that is registered by the State Fire Marshal's Office to execute the program.

(ii) The person who performs a service under the contract must be licensed by the State Fire Marshal's Office to perform the service and must complete, sign, and date an inspection form similar to the inspection and testing form in NFPA 25 for a service provided under the contract.

(iii) The facility must ensure sprinkler system components that require visual inspection are visually inspected in accordance with NFPA 13 and 25.

(iv) The facility must ensure sprinkler system components that required testing are tested in accordance with the NFPA 13 and 25.

(v) The facility must ensure sprinkler system components that require maintenance are maintained in accordance with NFPA 13 and 25.

(vi) The facility must ensure that individual sprinkler heads are inspected and maintained in accordance with NFPA 13 and 25.

(vii) The facility must maintain onsite documentation of compliance with this subsection and have available for examination by DADS as built drawings, operation and maintenance manuals, and a written sequence of operation.

(F) All facilities must follow the Life Safety Code, NFPA 101, 2000 edition, chapters 16 or 17, including the following:

(i) If a center is located in a building containing mixed occupancies, the occupancies must be separated by one-hour fire barriers.

(ii) Each floor occupied by clients must have access to two remote exits in accordance with Chapter 7, Means of Egress.

(I) Doors in the means of egress must be equipped with hardware that opens with a single motion.

(II) Doors must swing in the direction of egress for occupant loads greater than 50 occupants.

(iii) Every room or space normally subject to client occupancy, other than bathrooms or any room with attended individual clients, must have at least one outside window for emergency rescue or ventilation. Such window must be able to be opened from the inside without the use of tools and provide a clear opening of not less than 20 inches in width, 24 inches in height, and 5.7 sq. ft. (821 sq. in.) in area (minimum width of 20 inches by 41.2 inches high and minimum height of 24 inches by 34.2 inches wide). The bottom of the opening must be not more than 44 inches (112 cm.) above the floor. In rooms located greater than three stories above grade, the openable clear height, width, and area of the window may be modified to the dimensions necessary for ventilation. Exceptions are:

(I) buildings protected throughout by an approved, supervised automatic sprinkler system in accordance with §9.7;

(II) rooms or spaces with a door leading directly to the outside of the building; or

(III) in existing facilities, rooms smaller than 250 square feet.

(iv) Interior finish in stairways, corridors, and lobbies must be Class A. All other walls and ceilings must be Class A or Class B interior finish in accordance with Life Safety Code, NFPA 101, 2000 edition, §10.2.3. Flame spread is the rate of fire travel along the surface of a material. (This is different from other requirements for time-rated "burn through" resistance ratings such as one-hour rated.) Flame spread ratings are Class A (0-25), Class B (26-75), and Class C (76-200).

(v) Floor finish materials within corridors and exits must be Class I or Class II in accordance with §10.2.7 in new construction or new installations of flooring. Replacement or newly installed floor finish materials must be Class I or II. Existing floor finish materials in good condition may remain in use in accordance with §10.2.

(vi) A smoke detection system must be installed in accordance with §9.6 with placement of detectors in each story in front of the doors to the stairways and in the corridors of all floors occupied by the day-care occupancy. Detectors also must be installed in lounges, recreation areas, dining areas, and sleeping rooms in the center.

(vii) Fire department notification must be accomplished in accordance with §9.6.4, except in day-care centers with not more than 100 clients.

(3) Exceptions to the Life Safety Code, NFPA 101, 2000 edition, chapters 16 or 17, are as follows.

(A) All required smoke detectors must be powered by the facility electrical system and be interconnected with the fire alarm system.

(B) Reference to apartment buildings in §16.1.2 or §17.1.2 must be deleted. Any floor above or below the floor of exit discharge that is used by semi-ambulatory clients, or those whose disability prevents them from taking appropriate action for self-preservation in emergencies, must be provided with smoke compartmentation.

(C) Emergency lighting is not required for means of egress if the facility operation is during daylight hours and if natural light, direct or borrowed, is provided so that the means of egress is usable in emergencies.

(D) Special protective electrical receptacle covers are not required.

(E) NFPA 96, Standard for Ventilation Control and Fire Protection of Commercial Cooking Operations, is not applicable if the facility has residential-type cooking equipment.

(F) Public corridors must not be used for return or supply air systems.

(G) Residential-type heating units or heating units designed for attic installations must not be considered to be units requiring furnace room construction as specified under §16.3.2.1 or §17.3.2.1.

(H) New additions or remodeling must be as required for new construction in accordance with paragraph (4) of this subsection.

(I) Sprinkler system for a janitor's closet as specified under §16.3.2.1 or §17.3.2.1 is not required unless the building has a complete NFPA 13 system.

(4) For new construction, DADS requires conformance to the following codes, except that DADS may accept other nationally recognized codes that are locally enforced.

(A) If the municipality has a building code and a plumbing code, then those codes govern in those areas of construction. Where local codes or ordinances are applicable, the most restrictive parts concerning the same subject item apply unless otherwise determined by the authority having jurisdiction for local codes and the licensing agency.

(B)In the absence of local municipal codes or ordinances, nationally recognized codes must be used, such as the International Building Code and the compatible International Codes published by the International Code Council. These nationally recognized codes, when used, must all be publications of the same group or organization to assure the intended continuity.

(C) Heating, ventilating, and air-conditioning (HVAC) systems must be designed and installed in accordance with NFPA 90A and NFPA 90B, as applicable, and the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE), except as may be modified in this subchapter. Buildings required to meet NFPA 90A must have automatic shutdown upon initiation of the fire alarm system, in accordance with NFPA 90A, §4.4.

(D) Electrical and illumination systems must be designed and installed in accordance with NFPA 70 and the Lighting Handbook of the Illuminating Engineering Society (IES) of North America, except as may be modified in this subchapter.

(i) Minimum illumination must be 20 foot candles in the toilets, bathing, and general use areas, such as living areas, dining areas, corridors, and lobbies.

(ii) Minimum illumination must be 50 foot candles in the kitchen, medication or food preparation areas, and activity areas for handicrafts or reading.

(5) An existing building either occupied as an adult day care facility at the time of initial inspection by DADS, or converted to occupancy as an adult day care facility, must meet all local requirements pertaining to the building for that occupancy. DADS may require the facility sponsor or licensee to submit evidence that local requirements are satisfied.

(6) Adult day care facilities must be of recognized permanent type construction as distinguished from movable buildings or construction. Buildings must be structurally sound with regard to actual or expected dead, live, and wind loads. DADS may require submission of evidence to this effect. Foundations must be permanent, structurally sound for local soil conditions, and in good repair. A letter from a registered professional engineer may be required as validation of a permanent and structurally sound foundation.

(7) The walking surface in a facility and at the exit discharge must be consistent, nominally level, and without abrupt changes in elevation, trip hazards, or gaps. Floor surfaces may be on different elevations if connected with ramps or steps in accordance with the Life Safety Code, NFPA 101, 2000 edition, means of egress chapter.

(8) DADS will consider a written request from the facility for a waiver of requirements which, if strictly applied, would clearly be impractical in DADS' judgment for existing buildings and structures that have been converted to adult day care occupancy. Any of these modifications will be allowed only to the extent that reasonable life safety against the hazards of fire, explosion, structural, or other building failure and panic are provided and maintained.

(c) Personal safety.

(1) Fire safety.

(A) The facility must maintain an onsite copy of the annual fire marshal inspection report by the local fire marshal.

(B) Storage items must be neatly arranged and placed in the facility to minimize fire hazard. Gasoline, volatile materials, paint, and similar products must not be stored in the building housing clients unless approved by the local fire marshal. Accumulations of extraneous material and refuse are not permitted in the facility.

(C) The building must be kept in good repair.

(D) The facility's electrical, mechanical, heating, and cooling systems must be maintained in a safe manner and in working order. DADS may require the facility sponsor or licensee to submit evidence to this effect, consisting of a report from the fire marshal or city or county building official having jurisdiction or a report from a registered professional engineer.

(E) Electrical appliances, devices, and lamps used in the facility must be used in a manner that prevents overloaded circuits.

(F) If the facility uses extension cords in excess of six feet, they must be shielded or protected.

(G) Smoking regulations must be established and enforced by the facility and conspicuously posted in the facility.

(i)All smoking must be supervised.

(ii) The facility must prohibit smoking in any room, ward, or compartment where flammable liquids, combustible gas, or oxygen are used or stored and in any other hazardous location. The facility must post a "No Smoking" sign in these areas.

(iii) Ashtrays of noncombustible material and safe design must be provided in all areas where smoking is permitted.

(iv) Metal containers of substantial gauge or any UL- or FM-approved containers with self-closing cover devices into which ashtrays can be emptied must be provided in all areas where smoking is permitted.

(H) The facility must have an emergency fire lane for access of fire apparatus if required by local authorities.

(I) An initial pressure test of facility gas lines from the meter must be provided. Additional pressure tests are required when the facility has major renovations or additions during which the gas service is interrupted. Testing must be performed by a person licensed with the State Board of Plumbing Examiners.

(J) The facility must have all gas heating systems checked for proper operation and safety before the heating season by a person licensed by the Texas Department of Licensing and Regulation to perform maintenance work on gas-fired equipment. Any unsatisfactory conditions must be corrected promptly.

(K) Curtains or draperies in public spaces and individual rooms in which smoking is allowed must be flame retardant.

(L) Portable fire extinguishers of appropriate type and placed in the appropriate location must be provided by the facility in accordance with NFPA 10.

(M) The facility must inspect and maintain portable fire extinguishers.

(i) Portable fire extinguishers must be visually inspected monthly by facility staff. Facility staff conducting the monthly visual inspection must assure portable fire extinguishers are protected from damage, kept on their mounting brackets or in cabinets at all times, and kept in proper condition and working order.

(ii) Portable fire extinguishers must be inspected and maintained at least once every 12 months in accordance with NFPA 10 by a person licensed by the State Fire Marshal's office, to include hydrostatic testing as recommended by the manufacturer.

(iii) A record of all fire extinguisher inspections and maintenance performed must be kept onsite by the facility.

(N) Garbage, waste, or trash containers provided for kitchens, janitor closets, laundries, mechanical or boiler rooms, general storage, and similar places must be made of metal or any UL- or FM-approved material, having a close fitting cover. Disposable plastic liners may be used in these containers for sanitation.

(2) General requirements.

(A) All exterior site conditions must be designed, constructed, and maintained in the interest of clients' safety. Newly constructed ramps must not exceed 1:12 slope. Ramps, walks, and steps must be of slip-resistive texture and be smooth and uniform, without irregularities. Guard rails, fences, and hand rails must be provided as required.

(B) All stairways must have substantial hand rails properly secured.

(C) Tubs or showers for client use must have non-slip bottoms or floor surfaces, either built in or applied to the surface.

(D) Elevators for client use must be in safe operating condition.

(E) An adequate supply of hot water must be provided. The hot water system connected to all client-use fixtures must deliver warm water no hotter than 120 degrees Fahrenheit at the fixture. Hot water for other sanitary usages must be provided at the temperatures required for the appliance or fixture served, or for the operation involved.

(F) There must be no occupancies or activities adversely affecting the safety of the clients in the buildings or on the premises of the facility.

(G) Licensure capacity will be calculated at 40 square feet per client. This space may not include the kitchen/food service area, rest rooms, bath areas, office, corridors, stairways, storage areas, and outdoor space. Facilities licensed before October 1, 2000, will be allowed to meet the requirements in effect before October 1, 2000, of 35/50 square feet for ambulatory and semi-ambulatory clients. If a facility licensed before October 1, 2000, chooses to increase its capacity, changes ownership, or relocates, the facility will be required to meet the current standards for usable space, outdoor area, and rooms for privacy.

(H) An office area must be provided in a central location to record and maintain files for each client.

(I) An area for rest, other than the treatment and/or exam room, must be provided with a sufficient number of reclining lounge chairs or beds to accommodate the needs of clients.

(J) The facility must provide a separate room or rooms with beds and with walls from floor to ceiling for those clients who prefer privacy. Facilities licensed on or after May 1, 1999, must ensure that the room(s) with beds provide space for a minimum 5% of the licensed capacity. The usable space in the room(s) must provide not less than 80 square feet per bed for a one-bed room and not less than 60 square feet per bed for multiple-bed rooms. A bedroom shall be not less than eight feet in its smallest dimension, unless otherwise approved by DADS.

(K) The facility must have at least one room available as a treatment or examination room for use by the nursing staff or the client's physician. The client may not be treated or examined in an area other than the treatment room.

(L) The facility must have a safe, secure, and suitable outdoor recreation or relaxation area for clients. This area must be connected to, be a part of, be controlled by, and be directly accessible from the facility. This area must be enclosed by a wall or a fence or located in a courtyard and supervised by staff to prevent wandering and large enough to conduct outdoor activities. A chain-link fence must provide protection on top to prevent injury from wire points. This area must be suitably furnished. A minimum of 20% of the required outdoor space must be shaded. The required outdoor space for facilities licensed on or after May 1, 1999 is:

(i) 400 square feet for facilities up to 59 clients;

(ii) 600 square feet for facilities up to 99 clients; and

(iii) 800 square feet for facilities with 100 or more clients.

 

§98.43 Sanitation

 

(a) General.

(1) Wastewater and sewage must be discharged into a state-approved municipal sewage system; any exception such as an on-site sewage facility must be as approved by the Texas Commission on Environmental Quality or authorized agent.

(2) The water supply must be from a system approved by the Public Drinking Water Section of the Texas Commission on Environmental Quality, or from a system regulated by an entity responsible for water quality in that jurisdiction as approved by the Public Drinking Water Section of the Texas Commission on Environmental Quality.

(3) Waste, trash and garbage must be disposed from the premises at regular intervals in accordance with state and local practices. Excessive accumulations are not permitted. Outside containers must have tight-fitting lids left in closed position. Containers must be maintained in a clean and serviceable condition.

(4) The building and grounds must be kept neat and free of refuse, litter, extraneous materials and unsightly or injurious accumulations.

(5) The facility must make every effort possible to guard against insects, rodents, rainwater and other conditions adversely affecting a sanitary environment or the well-being of the client.

(6) A pest control program must be provided by qualified facility staff or by contract with a licensed pest control company. The least toxic and least flammable effective chemicals must be used. Documented evidence of routine efforts to remove rodents and insects must be maintained.

(7)The facility must be kept free of offensive odors, accumulations of dirt, rubbish, dust and hazards. Floors must be maintained in good condition and cleaned regularly; walls and ceilings must be structurally maintained, repaired and repainted or cleaned as needed. Storage areas, attics and cellars must be free of refuse and extraneous materials.

(8) There must be complete, separate, and adequate rest room facilities for men and women. Toilets must be provided as necessary to meet the needs of the clients; however, there must be not less than one toilet and one lavatory for every 15 clients or fraction thereof. A urinal may be substituted as the third required toilet in the men's bathroom. Multiple toilets must be compartmented. All toilets must be equipped with grab bars. Lavatories must be provided with hot and cold water, soap, and individual towels. A minimum of one bathing unit must be provided. Facilities licensed on or after May 1, 1999, must provide a minimum of one bathing unit that does not interfere with the use of the restroom by other clients. Each tub or shower must be in an individual room or enclosure that provides space for the private use of the bathing fixture, for drying and dressing, and for the client and attendant.

(9)All bathrooms, toilet rooms and other odor-producing rooms or areas for soiled and unsanitary operations must be ventilated to the exterior for odor control; the use of windows is not permissible.

(10)In kitchens and laundries, there must be procedures that prevent cross contamination between clean and soiled utensils and clean and soiled linens.

(b) Kitchen.

(1) The Department of State Health Services (DSHS) rules in 25 TAC §§229.161-229.171 and §§229.173-229.175 (relating to Texas Food Establishments) and local health ordinances or requirements must be observed in the storage, preparation, and distribution of food; in the cleaning of dishes, equipment, and work area; and in the storage and disposal of waste.

(2) Facilities licensed after May 1, 1999, must provide three compartment sinks. A three-compartment sink must be used if washing, rinsing and sanitizing utensils and equipment is done manually. Sinks must be large enough to permit the complete immersion of utensils and equipment and each compartment sink must be supplied with hot and cold potable water. A two-compartment sink will be acceptable where only single-service tableware is provided.

(3) Food preparation kitchens must have separate hand-washing fixtures including hot and cold water, soap, and individual towels, preferably paper towels, in accordance with DSHS rules in 25 TAC §§229.161-229.171 and §§229.173-229.175.

(4) Where kitchen provisions consist of serving kitchens only and cooking equipment is used only to warm food, prepare hot drinks or provide similar food service, the kitchen is not required to have separate hand-washing fixtures.

 

§98.44 Plans, Approvals and Construction Procedures

 

At the option of the applicant, DADS will review plans for new buildings, additions, conversion of buildings not licensed by DADS, or remodeling of existing licensed facilities. DADS will, within 30 days, inform the applicant in writing of the results of the review. If the plans comply with DADS' architectural requirements, DADS may not subsequently change the architectural requirement applicable to the project unless the change is required by federal law or the applicant fails to complete the project within two years. DADS may grant a waiver of this two-year period for delays due to unusual circumstances. There is no time limit to complete a project, only a time limit for completing a project using requirements that have been revised after the project was reviewed.

(1) Submittal of plans.

(A) For review of plans, submit one copy of working drawings and specifications (contract documents) before construction begins. Documents must be in sufficient detail to interpret compliance with these standards and assure proper construction. Documents must be prepared according to accepted architectural practice and must include general construction, special conditions and schedules.

(B) Final copies of plans must have (in the reproduction process by which plans are reproduced) a title block that shows name of facility, person, or organization preparing the sheet, sheet numbers, facility address, and drawing date. Sheets and sections covering structural, electrical, mechanical, and sanitary engineering final plans, designs, and specifications must bear the seal of a registered professional engineer approved by the Texas Board of Professional Engineers to operate in Texas. Contract documents for additions, remodeling, and construction of an entirely new facility must be prepared by an architect licensed by the Texas Board of Architectural Examiners. Drawings must bear the seal of the architect.

(C) A final plan for a major addition to a facility must include a basic layout to scale of the entire building onto which the addition will connect. North direction must be shown. The entire basic layout usually can be to scale such as 1/16 inch per foot or 1/32 inch per foot for very large buildings.

(D) Plans and specifications for conversions or remodeling must be complete for all parts and features involved.

(E) The sponsor is responsible for employing qualified personnel to prepare the contract documents for construction. If the contract documents have errors or omissions to the extent that conformance with standards cannot be reasonably assured or determined, a revised set of documents for review may be requested.

(F) The review of plans and specifications by DADS is based on general utility, the minimum licensing standards, and conformance of the Life Safety Code, NFPA 101, 2000 edition, and is not to be construed as all-inclusive approval of the structural, electrical, or mechanical components, nor does it include a review of building plans for compliance with the Texas Accessibility Standards as administered and enforced by the Texas Department of Licensing and Regulation.

(G) Fees for plan review will be required in accordance with §98.22 of this title (relating to Plan Review Fees).

(2) Contract documents.

(A) Site plan documents must include:

(i) grade contours;

(ii) streets (with names);

(iii) north arrow;

(iv) fire hydrants;

(v) fire lanes;

(vi) utilities, public or private;

(vii) fences; and

(viii) unusual site conditions, such as:

(I) ditches;

(II) low water levels;

(III) other buildings on-site; and

(IV) indications of buildings five feet or less beyond site property lines.

(B) Foundation plan documents must include general foundation design and details.

(C) Floor plan documents must include:

(i) room names, numbers and usages;

(ii) doors (numbered), including swing;

(iii) windows;

(iv) legend or clarification of wall types;

(v) dimensions;

(vi) fixed equipment;

(vii) plumbing fixtures;

(viii) kitchen basic layout; and

(ix) identification of all smoke barrier walls (outside wall to outside wall) or fire walls.

(D) For both new construction and additions or remodeling to existing buildings, an overall plan of the entire building must be drawn or reduced to fit on an 8 1/2-inch by 11-inch sheet.

(E) Schedules must include:

(i) door materials, widths and types;

(ii) window materials, sizes and types;

(iii) room finishes; and

(iv) special hardware.

(F) Elevations and roof plan must include:

(i) exterior elevations, including:

(I) material note indications; and

(II) any rooftop equipment;

(ii) roof slopes;

(iii) drains;

(iv) gas piping, etc.; and

(v) interior elevations where needed for special conditions.

(G) Details must include:

(i) wall sections as needed, especially for special conditions;

(ii) cabinet and built-in work, basic design only;

(iii) cross sections through buildings as needed; and

(iv) miscellaneous details and enlargements as needed.

(H) Building structure documents must include:

(i) structural framing layout and details (primarily for column, beam, joist and structural building);

(ii) roof framing layout (when it cannot be adequately shown on cross section); and

(iii) cross sections in quantity and detail to show sufficient structural design and structural details as necessary to assure adequate structural design and calculated design loads.

(I) Electrical documents must include:

(i) electrical layout, including lights, convenience outlets, equipment outlets, switches and other electrical outlets and devices;

(ii) service, circuiting, distribution and panel diagrams;

(iii) exit light system (exit signs and emergency egress lighting);

(iv) emergency electrical provisions (such as generators and panels, if applicable);

(v) staff communication system;

(vi) fire alarm and similar systems (such as control panel, devices and alarms); and

(vii) sizes and details sufficient to assure safe and properly operating systems.

(J) Plumbing documents must include:

(i) plumbing layout with pipe sizes and details sufficient to assure safe and properly operating systems;

(ii) water systems;

(iii) sanitary systems;

(iv) gas systems; and

(v) other systems normally considered under the scope of plumbing, fixtures and provisions for combustion air supply.

(K) Heating, ventilating and air-conditioning systems (HVAC) documents must include:

(i) sufficient details of HVAC systems and components to assure a safe and properly operating installation, including heating, ventilating, and air-conditioning layout, ducts, protection of duct inlets and outlets, combustion air, piping, exhausts, and duct smoke and/or fire dampers; and

(ii) equipment types, sizes and locations.

(L) If applicable, sprinkler system documents must include:

(i) plans and details of NFPA designed systems;

(ii) plans and details of partial systems provided only for hazardous areas; and

(iii) electrical devices interconnected to the alarm system.

(M) Specifications must include:

(i) installation techniques;

(ii) quality standards and/or manufacturers;

(iii) references to specific codes and standards;

(iv) design criteria;

(v) special equipment;

(vi) hardware;

(vii) finishes; and

(viii) any others as needed to amplify drawings and notes.

(N) Other layout, plans or details as may be necessary for a clear understanding of the design and scope of the project, including plans covering private water or sewer systems, must be reviewed by local health or wastewater authority having jurisdiction.

(3) Construction phase.

(A) DADS must be notified in writing before construction starts.

(B) All construction not done in accordance with the completed plans and specifications as submitted for review and as modified in accordance with review requirements will require additional drawings if the change is significant.

(4) Initial survey of completed construction.

(A) Upon completion of construction, including grounds and basic equipment and furnishings, a final construction inspection (initial survey) of the facility must be performed by DADS before admitting clients. An initial architectural inspection will be scheduled after DADS receives a notarized licensure application, required fee, fire marshal approval and a letter from an architect or engineer stating that to the best of their knowledge the facility meets the architectural requirements for licensure.

(B) After the completed construction has been surveyed by DADS and found acceptable, this information will be forwarded to DADS' Regulatory Services Licensing and Credentialing Section as part of the information needed to issue a license to the facility. In the case of additions or remodeling of existing facilities, a revision or modification to an existing license may be necessary. The building, including basic furnishings and operational needs, grades, drives, and parking, must essentially be 100% complete at the time of this initial visit for occupancy approval and licensing. A facility may accept up to three clients between the time it receives initial approval from DADS and the time the license is issued.

(C) The following documents must be available to DADS' architectural inspecting surveyor at the time of the survey of the completed building:

(i) written approval of local authorities as required in subparagraph (A) of this paragraph;

(ii) written certification of the fire alarm system by the installing agency (the Texas State Fire Marshal's Fire Alarm Installation Certificate);

(iii) documentation of materials used in the building that are required to have a specific limited fire or flame spread rating, including special wall finishes or floor coverings, flame retardant curtains (including cubicle curtains), rated ceilings, etc., and, in the case of carpeting, a signed letter from the installer verifying that the carpeting installed is named in the laboratory test document;

(iv) approval of the completed sprinkler system installation by the Texas Department of Insurance or designing engineer, including a copy of the material list and test certification;

(v) service contracts for maintenance and testing of alarm systems, sprinkler systems, etc.;

(vi) a copy of gas test results of the facility's gas lines from the meter;

(vii) a written statement from an architect/engineer stating, to the best of his knowledge, the building was constructed in substantial compliance with the construction documents, the Life Safety Code, NFPA 101, 2000 edition, DADS licensure standards, and local codes; and

(viii) any other such documentation as needed.

(5) Nonapproval of new construction.

(A) If, during the initial on-site survey of completed construction, the surveyor finds certain basic requirements not met, DADS may recommend the facility not be licensed and approved for occupancy. Such items may include the following:

(i) substantial changes made during construction that were not submitted to DADS for review and that may require revised "as-built" drawings to cover the changes, including architectural, structural, mechanical, and electrical items as specified in paragraph (3)(B) of this section;

(ii) construction that does not meet minimum code or licensure standards, such as corridors that are less than required width, ceilings installed at less than the minimum seven-foot, six-inch height, client bedroom dimensions less than required, and other such features that would disrupt or otherwise adversely affect the clients and staff if corrected after occupancy;

(iii) no written approval by local authorities;

(iv) fire protection systems, including fire alarm systems, emergency power and lighting, and sprinkler systems, not completely installed or not functioning properly;

(v) required exits not all usable according to Life Safety Code, NFPA 101, 2000 edition requirements;

(vi) telephone not installed or not properly working;

(vii) sufficient basic furnishings, essential appliances and equipment not installed or not functioning; and

(viii) any other basic operational or safety feature that would preclude safe and normal occupancy by clients on that day.

(B) If the surveyor encounters only minor deficiencies, licensure may be recommended based on an approved written plan of correction from the facility's administrator.

(C) Copies of reduced-size floor plans on an 8 1/2-inch by 11-inch sheet must be submitted in duplicate to DADS for record or file use and for the facility's use for evacuation plan, fire alarm zone identification, etc. The plan must contain basic legible information such as scale, room usage names, actual bedroom numbers, doors, windows, and any other pertinent information.

Subchapter D, Licensure and Program Requirements

Revision 16-1

 

 

§98.61 General Requirements

 

(a) For purposes of this subchapter, the term, "communicable diseases" has the meaning assigned to it under 25 TAC Chapter 97 (relating to Communicable Diseases).

(b) The facility must:

(1) comply with the requirements for advance directives as outlined under subsection (c) of this section;

(2) comply with the provisions of Chapter 250 of the Health and Safety Code (relating to criminal history checks of employees and applicants for employment in certain facilities serving the elderly or persons with disabilities);

(3) before offering employment, search the employee misconduct registry (EMR) established under §253.007, Health and Safety Code and the DADS nurse aide registry (NAR) to determine if an individual is designated in either registry as unemployable. Both registries can be accessed on the DADS Internet website.

(A) A facility must not employ a person who is listed as unemployable in either registry.

(B) A facility must provide written information about the EMR to an employee in accordance with §93.3 of this title (relating to Employment and Registry information).

(C) In addition to the initial search of the EMR and NAR, a facility must:

(i) conduct a search of the NAR and EMR to determine if the employee is designated in either registry as unemployable as follows:

(I) for an employee most recently hired before September 1, 2009, by August 31, 2011 and at least every twelve months thereafter; and

(II) for an employee most recently hired on or after September 1, 2009, at least every twelve months; and

(ii) keep a copy of the results of the initial and annual searches of the NAR and EMR in the employee's personnel file;

(4) develop policies to comply with standards for universal precautions for HIV/AIDS and related conditions in the workplace;

(5) develop written policies for the control of communicable diseases in employees and clients, which include tuberculosis (TB) screening and provision of a safe and sanitary environment for clients and their families;

(6) comply with all relevant federal and state standards; and

(7) comply with all applicable provisions of the Human Resource Code, Chapter 102.

(c) A facility must maintain policies and procedures regarding the following rules with respect to all adult clients receiving services provided by the facility:

(1) The facility must provide a client with the following written information:

(A) the client's rights under Texas law (whether statutory or as recognized by the courts of the state) to make decisions concerning medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate advance directives;

(B) the facility's policies respecting the implementation of these rights; and

(C) a written list of the client's rights, as outlined under the Human Resource Code §102.004, Rights of the Elderly.

(2) The facility must document in the client's record whether the client has executed an advance directive.

(3) The facility must not condition the provision of care or otherwise discriminate against a client based on whether the client has executed an advance directive.

(4) The facility must ensure compliance with the requirements of Texas law, whether statutory or as recognized by the courts of Texas, respecting advance directives.

(5) The facility must educate the client, family members and staff, in a language they understand, on issues concerning advance directives.

(6) The facility must provide the attending physician with any information relating to a known existing Directive to Physicians or Living Will or Durable Power of Attorney for Health Care and assist with coordinating physicians' orders with any directive.

(7) When a client is in an incapacitated state and therefore is unable to receive information or articulate whether he has executed an advance directive, the family, surrogate or other concerned person must receive the information concerning advance directives. The facility must provide this information to the client in a language he understands, if he is no longer incapacitated.

(8) When the client or a relative, surrogate or other concerned or related individual presents the facility with a copy of the client's advance directive, the facility must comply with the advance directive including recognition of a durable power of attorney for health care, to the extent allowed under state law. If no one comes forward with a previously executed advance directive and the client is incapacitated or otherwise unable to receive information or articulate whether he has executed an advance directive, the facility must note that the client was not able to receive information and was unable to communicate whether an advance directive existed.

(d) A facility must:

(1) contact DADS at 1-800-458-9858 on learning of alleged abuse or neglect of a client and send a written investigation report to DADS no later than the fifth working day after the oral report;

(2) maintain incident reports;

(3) ensure the confidentiality of individual client records and other information related to clients; and

(4) inform the client orally and in writing of his rights, responsibilities and grievance procedures in a language he understands.

(e) A facility must prominently and conspicuously post for display in a public area of the facility that is readily available to clients, employees and visitors:

(1) the license issued under this chapter;

(2) a sign prescribed by DADS that describes complaint procedures and specifies how complaints may be filed with DADS;

(3) a notice in the form prescribed by DADS stating that inspection and related reports are available at the facility for public inspection and providing DADS' toll-free telephone number that may be used to obtain information concerning the facility;

(4) a copy of the most recent inspection report relating to the facility; (5) a brochure or letter that outlines the facility's hours of operation, holidays and a description of activities offered; and

(6) emergency telephone numbers, including the abuse hotline telephone number, near all telephones.

 

§98.62 Program Requirements

 

(a) Staff qualifications.

(1) Director. A facility must employ a director.

(A) The director must:

(i) have graduated from an accredited four-year college or university and have no less than one year of experience in working with people in a human service or medically related program or have an associate degree or 60 semester hours from an accredited college or university with three years of experience working with people in a human service or medically related program;

(ii) be an RN with one year of experience in a human service or medically related program;

(iii) meet the training and experience requirements for a license as a nursing facility administrator under Texas Administrative Code (TAC), Title 40, Chapter 18, Nursing Facility Administrators; or

(iv) have met, on July 16, 1989, the qualifications for a director required at that time and have served continuously in the capacity of director since that date.

(B) The director must show evidence of 12 hours of annual continuing education in at least two of the following areas:

(i) individual and provider rights and responsibilities, abuse, neglect, exploitation and confidentiality;

(ii) basic principles of supervision;

(iii) skills for working with individuals, families and other professional service providers;

(iv) individual characteristics and needs;

(v) community resources;

(vi) basic emergency first aid, such as cardiopulmonary resuscitation (CPR) or choking; or

(vii) federal laws, such as Americans with Disabilities Act, Civil Rights Act of 1991, the Rehabilitation Act of 1993 and the Family and Medical Leave Act of 1993.

(C) The activities director may fulfill the function of director if the activities director meets the qualifications for facility director.

(D) One person may not serve as facility nurse, activities director and director, regardless of qualifications.

(E) The facility must have a policy regarding the delegation of responsibility in the director's absence from the facility.

(F) The facility must notify the DADS regional office in which the facility is located if the director is absent from the facility for more than 10 working days.

(2) Nurse. A facility must employ a nurse.

(A) An RN must have a license from the Texas Board of Nursing and practice in compliance with the Nurse Practice Act and rules and regulations of the Texas Board of Nursing.

(B) An LVN must have a license from the Texas Board of Nursing and practice in compliance with the Nurse Practice Act and rules and regulations of the Texas Board of Nursing.

(C) If a nurse serving as director leaves the facility to perform other duties related to the DAHS program, an LVN or another RN must fulfill the duties of the facility nurse.

(D) A facility that does not have a DAHS contract, but has a Special Services to Persons with Disabilities contract, is not required to have an RN on duty, if the individual receiving services has no medical needs and is able to self-administer medication.

(3) Activities director. A facility must employ an activities director.

(A) Except as provided in subparagraph (B) of this paragraph, an activities director must have graduated from a high school or have a certificate recognized by a state of the United States as the equivalent of a high-school diploma and have:

(i) a bachelor's degree from an accredited college or university, and one year of full-time experience working with elderly people or people with disabilities in a human service or medically related program;

(ii) 60 semester hours from an accredited college or university, and two years of full-time experience working with elderly people or people with disabilities in a human service or medically related program; or

(iii) completed an activities director's course, and two years of full-time experience working with elderly people or people with disabilities in a human service or medically related program.

(B) An activities director hired before May 1, 1999, with four years of full-time experience working with elderly people or people with disabilities in a human service or medically related program is not subject to the requirements of subparagraph (A) of this paragraph.

(4) Attendants. An attendant must be at least 18 years of age and may be employed as a driver, aide, cook, janitor, porter, housekeeper, or laundry worker.

(A) If a facility employs a driver, the driver must have a current operator's license, issued by the Texas Department of Public Safety, which is appropriate for the class of vehicle used to transport individuals.

(B) If an attendant handles food in the facility, the attendant must meet requirements of the Department of State Health Services rules on food service sanitation as described in 25 TAC, Chapter 228, Subchapters A - J (relating to Texas Food Establishments).

(5) Food service personnel. If a facility prepares meals on site, the facility must have sufficient food service personnel to prepare meals and snacks. Food service personnel must meet the requirements of the Department of State Health Services rules on food service sanitation as described in 25 TAC, Chapter 228, Subchapters A - J (relating to Texas Food Establishments).

(6) Additional requirements for a facility that contracts with DADS.

(A) Housekeeper. A facility that contracts with DADS may employ a part-time or full-time housekeeper.

(B) Driver. If a facility that contracts with DADS employs a driver, the driver must:

(i) operate the facility's vehicles in a safe manner; and

(ii) maintain adult cardiopulmonary resuscitation (CPR) certification.

(b) Staffing. A facility must ensure that:

(1) the ratio of direct service staff to individuals is at least one to eight, which must be maintained during provision of all DAHS except during facility-provided transportation;

(2) at least one RN or LVN is working at the facility for at least eight hours per day and sufficient nurses are at the facility to meet the nursing needs of the individuals at all times;

(3) the facility director routinely works at least 40 hours per week performing duties relating to the provision of the DAHS program;

(4) the activities director rountinely works at least 40 hours a week;

(5) individuals whose needs cannot be met by the facility are not admitted or retained; and

(6) sufficient staff are on duty at all times to meet the needs of the individuals who are served by the facility.

(c) Staff health. All direct service staff must be free of communicable diseases.

(1) A facility must screen all employees for tuberculosis within two weeks of employment and annually, according to the Centers for Disease Control and Prevention (CDC) screening guidelines. All persons providing services under an outside resource contract must also screen all employees for tuberculosis within two weeks of employment and annually according to CDC screening guidelines.

(2) If an employee contracts a communicable disease that is transmissible to individuals through food handling or direct individual care, the facility must exclude the employee from providing these services while the employee is infectious.

(d) Staff responsibilities.

(1) The facility director:

(A) manages the DAHS program and the facility;

(B) trains and supervises facility staff;

(C) monitors the facility building and grounds to ensure compliance;

(D) maintains all financial and individual records;

(E) develops relationships with community groups and agencies for identification and referral of individuals;

(F) maintains communication with an individual's family members or responsible parties;

(G) assures the development and maintenance of the individual's plan of care; and

(H) ensures that, if the facility director serves as the RN consultant, the facility director fulfills the responsibility as director.

(2) The facility nurse:

(A) assesses an individual's nursing and medical needs;

(B) develops an individual's plan of care;

(C) obtains physician's orders for medication and treatments to be administered;

(D) determines whether self-administered medications have been appropriately taken, applied or used;

(E) enters, dates and signs monthly progress notes on medical care provided;

(F) administers medication and treatments;

(G) provides health education; and

(H) maintains medical records.

(3) The activities director:

(A) plans and directs the daily program of activities, including physical fitness exercises or other recreational activities;

(B) records the individual's social history;

(C) assists the individual's related support needs;

(D) assures that the identified related support services are included in the individual's individual plan of care; and

(E) signs and dates monthly progress notes about social and related support services activities provided.

(4) An attendant:

(A) provides personal care services to assist with activities of daily living;

(B) assists the activities director with recreational activities; and

(C) provides protective supervision through observation and monitoring.

(5) Food service personnel:

(A) prepare meals and snacks; and

(B) maintain the kitchen area and utensils in a safe and sanitary condition.

(6) A facility must obtain consultation at least four hours per month from a dietitian consultant.

(A) The dietitian consultant plans and reviews menus and must:

(i) approve and sign snack and luncheon menus;

(ii) review menus monthly to ensure that substitutions were appropriate; and

(iii) develop a special diet for an individual, if ordered by a physician.

(B) A facility must obtain consultation from a dietitian consultant, even if the facility has meals delivered from another facility with a  dietitian consultant or the facility contracts for the preparation and delivery of meals with a contractor that employs a registered dietician. A consultant who provides consultation to several facilities must provide at least four hours of consultation per month to each facility.

(7) If a facility employs an LVN as the facility nurse, the facility must ensure that an RN consultant provides consultation at the facility at least four hours per week. The RN consultant must document the consultation provided. The RN consultant must provide the consultation when individuals are present in the facility. The RN consultant may provide the following types of assistance:

(A) review plans of care and suggest changes, if appropriate;

(B) assess individuals' health conditions;

(C) consult with the LVN in solving problems involving care and service planning;

(D) counsel individuals on health needs;

(E) train, consult and assist the LVN to maintain proper medical records; and

(F) provide in-service training for direct service staff.

(e) Training.

(1) Initial training.

(A) A facility must:

(i) provide direct service staff with training in the fire, disaster, and evacuation procedures within three workdays after the start of employment and document the training in the facility records; and

(ii) provide direct service staff a minimum of 18 hours of training during the first three months after the start of employment and document the training in the facility records.

(B) The training provided in accordance with subparagraph (A)(ii) of this paragraph must include:

(i) any nationally or locally recognized adult CPR course or certification;

(ii) first aid; or

(iii) orientation to health care delivery, including the following topics:

(I) safe body function and mechanics;

(II) personal care techniques and procedures; and

(III) overview of the population served at the facility; and

(iv) identification and reporting of abuse, neglect, or exploitation.

(2) Ongoing training.

(A) A  facility must provide at least three hours of ongoing training to direct service staff quarterly. The facility must ensure that direct delivery staff maintain current certification in CPR.

(B) A facility must practice evacuation procedures with staff and individuals at least  once a month. The facility must document evacuation results in the facility records.

(f) Medications.

(1) Administration.

(A) A facility must ensure that a person who holds a current license under state law that authorizes the licensee to administer medications administers medications to individuals who choose not to or cannot self-administer their medications.

(B) A facility must ensure that all medication prescribed to an individual that is administered at the facility is dispensed through a pharmacy or by the individual’s treating physician or dentist.

(C) A facility must ensure that all medication prescribed to an individual that is administered at the facility is dispensed through a pharmacy or by the individual’s treating physician or dentist.

(D) A facility may administer physician sample medications at the facility if the medication has specific dosage instructions for the individual.

(E) A facility must record an individual's medications on the individual's medication profile record. The recorded information must be obtained from the prescription label and must includethe medication name, strength, dosage, amount received, directions for use, route of administration, prescription number, pharmacy name, and the date each medication was issued by the pharmacy.

(2) Assistance with self-administration. A nurse may assist with self administration of an individual's medication if the individual is unable to administer the medication without assistance. Assistance with self-administration of medication is limited to the following activities:

(A) reminding an individual to take medications at the prescribed time;

(B) opening and closing containers or packages;

(C) pouring prescribed dosage according to the individual's medication profile record;

(D) returning medications to the proper locked areas;

(E) obtaining medications from a pharmacy; and

(F) listing on an individual's medication profile record the medication name, strength, dosage, amount received, directions for use, route of administration, prescription number, pharmacy name, and the date each medication was issued by the pharmacy.

(3) Self-administration.

(A) A nurse must counsel an individual who self-administers medication or treatment at least once per month to ascertain if the individual continues to be able to self-administer the medication or treatment. The facility must keep a written record of the counseling.

(B) A facility may permit an individual who chooses to keep the individual's medication locked in the facility's central medication storage area to enter or have access to the area for the purpose of self-administering medication or treatment. A facility staff member must remain in or at the storage area the entire time the individual is present.

(4) General.

(A) A facility director, an activities director, or a facility nurse must immediately report to physician and responsible party any unusual reactions to a medication or treatment.

(B) When a  facility supervises or administers medications, the facility must document in writing if an individual does not receive or take the medication and treatment as prescribed. The documentation must include the date and time the dose should have been taken, and the name and strength of medication missed.

(5) Storage.

(A) A facility must provide a locked area for all medications, which may include:

(i) a central storage area; and

(ii) a medication cart.

(B) A facility must store an individual's medication separately from other individuals' medications within the storage area.

(C) A facility must store medication requiring refrigeration in a locked refrigerator that is used only for medication storage or in a separate, permanently attached, locked medication storage box in a refrigerator.

(D) A facility must store poisonous substances and medications labeled for "external use only" separately within the locked area.

(E) A facility must store drugs covered by Schedule II of the Controlled Substances Act of 1970 in a locked, permanently attached cabinet, box, or drawer that is separate from the locked storage area for other medications.

(6) Disposal.

(A) A facility must keep medication that is no longer being used by an individual for the following reasons separate from current medications and ensure the medication is disposed of by a registered pharmacist licensed in the State of Texas:

(i) the medication has been discontinued by order of the prescribing professional;

(ii) the individual is deceased; or

(iii) the expiration date of the medications has passed.

(B) A facility must dispose of needles and hypodermic syringes with needles attached as required by 25 TAC, Chapter 1, Subchapter K (relating to the Definition, Treatment, and Disposal of Special Waste from Health Care Related Facilities).

(C) A facility must obtain a signed receipt from an individual or the individual's responsible party if the facility releases medication to the individual or responsible party.

(g) Accident, injury, or acute illness.

(1) A  facility must stock and maintain in a single location first aid supplies to treat burns, cuts, and poisoning.

(2) In the event of accident or injury to an individual requiring emergency medical, dental, or nursing care, or in the event of death of an individual, a facility must:

(A) make arrangements for emergency care or  transfer to an appropriate place for treatment, including:

(i) a physician's office;

(ii) a clinic; or

(iii) a hospital;

(B) immediately notify an individual's physician and responsible party, or agency who admitted the individual to the facility; and

(C) describe and document the accident, injury, or illness on a separate report. The report must contain a statement of final disposition and be maintained on file.

(h) Menus.

(1) A facility must plan, date, and post a menu at least two weeks in advance and maintain a copy of the menu. A facility must serve meals according to approved menus.

(2) A facility must ensure that a special diet meal ordered by an individual's physician and developed by the dietician is labeled with the individual's name and type of diet.

 

§98.63 Peer Review

 

A facility must adopt and enforce a written policy to ensure that all professional disciplines comply with their professional practice acts or title acts relating to reporting and peer review.

 

§98.64 Emergency Preparedness and Response

 

(a) Definitions. In this section:

(1) "emergency situation" means an impending or actual situation that:

(A) interferes with normal activities of a facility or its clients;

(B) may:

(i) cause injury or death to a client or staff member of the facility; or

(ii) cause damage to facility property;

(C) requires the facility to respond immediately to mitigate or avoid the injury, death, damage or interference; and

(D) does not include a situation that arises from the medical condition of a client such as cardiac arrest, obstructed airway, cerebrovascular accident; and

(2) "plan" refers to a facility's emergency preparedness and response plan.

(b) Administration. A facility must:

(1) develop and implement a written plan as described in subsection (c) of this section;

(2) maintain a written copy of the plan that is accessible to all staff at all times;

(3) evaluate and revise the plan as necessary:

(A) within 30 days after an emergency situation;

(B) as soon as possible after the remodeling or construction of an addition to the facility; and

(C) at least annually; and

(4) revise the plan within 30 days after information included in the plan changes.

(c) Emergency Preparedness and Response Plan. A facility's plan must:

(1) include a risk assessment of all potential internal and external emergency situations relevant to the facility operations and geographical area, such as a fire, failure of heating and cooling systems, a power outage, an explosion, a hurricane, a tornado, a flood, extreme snow and ice for the area, a wildfire, terrorism, or a hazardous materials accident;

(2) include a description of the facility's client population;

(3) include a description of the services and assistance needed by the clients in an emergency situation;

(4) include a section for each core function of emergency management, as described in subsection (d) of this section, that is based on a facility's decision to either shelter-in-place or evacuate during an emergency; and

(5) include a fire safety plan that complies with subsection (f) of this section.

(d) Plan Requirements Regarding Eight Core Functions of Emergency Management.

(1) Direction and control. A facility's plan must contain a section for direction and control that:

(A) designates by name or title the emergency preparedness coordinator (EPC) who is the facility staff person with the authority to manage the facility's response to an emergency situation in accordance with the plan;

(B) designates by name or title the alternate EPC who is the facility staff person with the authority to act as the EPC if the EPC is unable to serve in that capacity;

(C) documents the name and contact information for the local emergency management coordinator (EMC) for the area where the facility is located, as identified by the office of the local mayor or county judge; and

(D) documents coordination with the local EMC as required by the local EMC's guidelines relating to emergency situations.

(2) Warning. A facility's plan must contain a section for warning that:

(A) describes how the EPC will be notified of an emergency situation;

(B) identifies who the EPC will notify of an emergency situation and when the notification will occur; and

(C) ensures monitoring of local news and weather reports.

(3) Communication. A facility's plan must contain a section for communication that:

(A) identifies the facility's primary mode of communication and alternate mode of communication to be used in the event of power failure or the loss of the facility's primary mode of communication in an emergency situation;

(B) includes procedures for maintaining a current list of telephone numbers for clients and responsible parties;

(C) includes procedures for maintaining a current list of telephone numbers for the facility's staff that also identifies the facility's EPC;

(D) identifies the location of the lists described in paragraphs (B) and (C) of this subsection where facility staff can obtain the list quickly;

(E) includes procedures to notify:

(i) facility staff about an emergency situation;

(ii) a receiving facility about an impending or actual evacuation of clients; and

(iii) clients, legally authorized representatives and other persons about an emergency situation;

(F) describes how the facility will provide, during an emergency situation, general information to the public, such as the change in the facility's location and hours, or that the facility is closed due to the emergency situation;

(G) includes procedures for the facility to maintain communication with:

(i) facility staff during an emergency situation;

(ii) a receiving facility if applicable; and

(iii) facility staff who will transport clients to a secure location during an evacuation in a facility vehicle;

(H) includes procedures for reporting to DADS an emergency situation that caused the death or serious injury of a client as follows:

(i) by telephone, at 1-800-458-9858, within 24 hours after the death or serious injury; and

(ii) in writing, on the DADS form titled "DADS Provider Investigation Report," within 5 working days after the facility makes the telephone report required by clause (i) of this subparagraph.

(4) Sheltering-in-place. A facility's plan must contain a section that includes procedures to shelter clients in place during an emergency situation.

(5) Evacuation. A facility's plan must contain a section for evacuation that:

(A) requires posting building evacuation routes prominently throughout the facility, except in small, one-story buildings where all exits are obvious;

(B) includes procedures for evacuating clients to a pre-arranged location in an emergency situation, if applicable;

(C) includes a mutual aid agreement with a receiving facility which must specify the arrange ments for receiving clients in the event of an evacuation;

(D) identifies primary and alternate evacuation destinations and routes, and includes a map that shows the destination and routes;

(E) includes procedures for:

(i) ensuring facility staff accompany evacuating clients;

(ii) ensuring that all persons present in the building have been evacuated;

(iii) accounting for clients and staff after they have been evacuated;

(iv) accounting for clients who are absent from the facility at the time of the evacuation;

(v) contacting the local EMC, if required by the local EMC guidelines, to find out if it is safe to return to the geographical area; and

(vi) determining if it is safe to re-enter and occupy the building after an evacuation;

(F) includes procedures for notifying the local EMC regarding an evacuation of the facility, if required by the local EMC guidelines;

(G) includes procedures for notifying DADS by telephone, at 1-800-458-9858, within 24 hours after an evacuation that clients have been evacuated;

(H) includes procedures for notifying DADS Regulatory Services regional office for the area in which the facility is located, by telephone, as soon as safely possible after a decision to evacuate is made; and

(I) includes procedures for notifying DADS regional office for the area in which the facility is located, by telephone, that clients have returned to the facility after an evacuation, within 48 hours after their return.

(6) Transportation. A facility's plan must contain a section for transportation that:

(A) provides for a sufficient number of vehicles that are safe and suitable for any special needs of the clients or requires that the facility maintain a contract for transporting clients during an evacuation;

(B) identifies facility staff authorized to drive a vehicle during an evacuation;

(C) establishes alternate transportation arrangements if the vehicles or contracted transportation described in subparagraph (A) of this paragraph are not available;

(D) includes procedures for safely transporting oxygen tanks currently being used by clients and any extra oxygen tanks that may be needed during an evacuation; and

(E) includes procedures that will ensure:

(i) safe transport of records, food, water, equipment, and supplies needed during an evacuation; and

(ii) that the records, food, water, equipment, and supplies, described in clause (i) of this subparagraph, arrive at the receiving facility at the same time as the clients.

(7) Health and Medical Needs. A facility's plan must contain a section for client health and special needs that:

(A) identifies all of the facility's special needs clients including clients with conditions requiring assistance during an evacuation; and

(B) ensures the needs of those clients are met during an emergency.

(8) Resource Management. A facility's plan must contain a section for resource management that:

(A) includes procedures for accessing medications, records, food, water, equipment and supplies needed during an emergency;

(B) identifies facility staff who are assigned to locate and ensure the transportation of items described in subparagraph (A) of this paragraph during an emergency situation; and

(C) includes procedures to ensure medications are secure and stored at the proper temperatures during an emergency situation.

(e) Training. A facility must:

(1) train all staff on their responsibilities under the plan when hired in accordance with §98.62(e) of this chapter (relating to Program Requirements);

(2) retrain staff at least annually on the staff member's responsibilities under the plan and when the staff member's responsibilities under the plan change; and

(3) conduct unannounced drills with facility staff for severe weather and other emergency situations identified by the facility as likely to occur, based on the results of the risk assessment required by subsection (c)(1) of this section.

(f) Fire Safety Plan. A facility's fire safety plan must:

(1) include the provisions described in the Operating Features section of the NFPA 101 Life Safety Code, 2000 Edition, Chapter 16 (for new day-care occupancies) and Chapter 17 (for existing day-care occupancies) concerning:

(A) use of alarms;

(B) transmission of alarm to fire department;

(C) response to alarms;

(D) isolation of fire;

(E) evacuation of immediate area;

(F) evacuation of smoke compartment;

(G) preparation of floors and building for evacuation; and

(H) fire extinguishment;

(2) include procedures to contact DADS by telephone, at 1-800-458-9858, within 24-hours after a fire in accordance with §98.42 of this chapter (relating to Safety); and

(3) include procedures to submit to DADS, within 15 days after the fire, the form entitled "Fire Report for Long Term Care Facilities;"

(4) include in the fire safety plan the provisions described in the Operating Features section of the NFPA 101 Life Safety Code, 2000 Edition, Chapter 16 (for new day-care occupancies) and Chapter 17 (for existing day-care occupancies) concerning drills and inspections, except as superseded by this section; and

(5) establish procedures to:

(A) perform a monthly fire drill with all occupants of the building at expected and unexpected times and under varying conditions;

(B) relocate, during the monthly fire drill, all occupants of the building to a predetermined location where participants must remain until a recall or dismissal signal is given;

(C) complete the DADS Fire Drill Report Form for each required fire drill;

(D) conduct a monthly fire prevention inspection performed by a trained and senior member of the facility and prepare a report of the inspection results;

(E) maintain copies of the fire prevention inspection report, described in subparagraph (D) of this paragraph, that were prepared by the facility within the last 12 months; and

(F) post a copy of the most recent fire prevention inspection report, described in subparagraph (D) of this paragraph, in a conspicuous place in the facility. File viewing information.

Subchapter E, Inspections, Surveys and Visits

Revision 09-1

 

 

§98.81 Procedural Requirements

 

(a) DADS may enter the premises of a facility at reasonable times and make an inspection necessary to issue a license or renew a license. DADS inspection and survey personnel will perform inspections and surveys, follow-up visits, complaint investigations, investigations of abuse or neglect, and other contact visits as required for carrying out the responsibilities of licensing.

(b) An inspection may be conducted by a surveyor.

(c) Generally, all inspections, surveys, complaint investigations and other visits, whether routine or nonroutine, made for the purpose of determining the appropriateness of client care and day-to-day operations of a facility will be unannounced. Any exceptions must be justified.

(d) Certain visits may be announced, including initial architectural inspections, visits to determine the progress of physical plant construction or repairs, equipment installation or repairs, systems installation or repairs, or conditions when certain emergencies arise, such as fire, windstorm, or malfunctioning or nonfunctioning of electrical or mechanical systems.

(e) Any person may request an inspection of a facility by notifying DADS in writing of an alleged violation of a licensing requirement. The complaint shall be as detailed as possible and signed by the complainant. DADS performs an on-site inspection as soon as feasible but no later than 30 days after receiving the complaint, unless after an investigation the complaint is found to be frivolous. DADS will respond to the complainant in writing.

(f) ADS will receive and investigate anonymous complaints.

(g) The facility must make all of its books, records, and other documents maintained by or on behalf of a facility accessible to DADS upon request.

(1) DADS is authorized to photocopy documents, photograph clients, and use any other available recording devices to preserve all relevant evidence of conditions found during an inspection, survey, or investigation that DADS reasonably believes threaten the health and safety of a client.

(2) Examples of records and documents that may be requested and photocopied or otherwise reproduced are client medical records, including nursing notes, pharmacy records, medication records, and physician's orders.

(3)The facility may charge DADS at a rate not to exceed the rate DADS charges for copies. The procedure of copying is the responsibility of the director or his designee. If copying requires that the records be removed from the facility, a representative of the facility is expected to accompany the records and assure their order and preservation.

(4)DADS protects the copies for privacy and confidentiality in accordance with recognized standards of medical records practice, applicable state laws, and DADS policy.

(h)The source of the complaint is not revealed.

 

§98.82 Determinations and Actions Pursuant to Inspections

 

(a) DADS determines if a facility meets the licensing rules, including both physical plant and facility operation requirements.

(b)Violations of regulations are listed on forms designed for the purpose of the inspection.

(c) At the conclusion of an inspection or survey, the violations are discussed in an exit conference with the facility's management. A written list of the violations is left with the facility at the time of the exit conference.

(d) If, after the initial exit conference, additional violation are cited, the violations are communicated to the facility within 10 working days after the initial exit conference.

(e) DADS provides a clear and concise summary in nontechnical language of each licensure inspection, inspection of care, and complaint investigation, if applicable. The summary outlines significant violations noted at the time of the inspection or survey, but does not include names of clients, staff, or any other information that would identify individual clients or other prohibited information under general rules of public disclosure. The summary is provided to the facility at the time the report of contact or similar document is provided.

(f) Upon receipt of the final statement of violations, the facility has 10 working days to submit an acceptable plan of correction to the DADS Regulatory Services regional director. An acceptable plan of correction must address the following:

(1) how the facility will accomplish the corrective action for those clients affected by each violation;

(2) how the facility will identify other clients with the potential to be affected by the same violation;

(3) how the facility will put the corrective measure into practice or make systemic changes to ensure that the violation does not recur;

(4) how the facility will monitor the corrective action to ensure that the violation is corrected and will not recur; and

(5) the date the corrective action will be completed.

(g) If the provider and the inspector cannot resolve a dispute regarding a violation of regulations, the provider is entitled to an informal dispute resolution (IDR) at the regional level for all violations. For a violation that resulted in an adverse action, the provider is entitled to an IDR at either the regional or state office level.

(1) A written request and all supporting documentation must be submitted to the Regional Director, Regulatory Services, for a regional IDR; or to Regulatory Services, Texas Department of Aging and Disability Services, P.O. Box 149030, E-351, Austin, Texas 78714-9030, for a central office IDR, no later than the tenth day after receipt of the official statement of violations.

(2) DADS completes the IDR process no later than the 30th day after receipt of a request from a facility.

(3) Violations deemed invalid in an IDR will be so noted in DADS' records.

 

§98.83 Referrals to the Attorney General

 

DADS may refer a facility to the attorney general who may petition a district court for:

(1) a temporary restraining order to restrain a person from a violation or threatened violation of the requirements or any other law affecting clients if DADS reasonably believes that the violation or threatened violation creates an immediate threat to the health and safety of a client; and

(2) an injunction to restrain a person from a violation or threatened violation of the requirements or any other law affecting clients if DADS reasonably believes that the violation or threatened violation creates a threat to the health and safety of a client.

 

§98.84 Procedures for Inspection of Public Records

 

(a) Procedures for inspection of public records will be in accordance with the Texas Government Code, Chapter 552 and as further described in this section.

(b) DADS' Regulatory Services Division is responsible for the maintenance and release of records on licensed facilities, and other related records.

(c) The application for inspection of public records is subject to the following criteria.

(1) The application must be made to Regulatory Services, Texas Department of Aging and Disability Services, Mail Code E-349, P.O. Box 149030, Austin, Texas 78714-9030.

(2) The requester must identify himself.

(3) The requester must give reasonable prior notice of the time for inspection and/or copying of records.

(4) The requester must specify the records requested.

(5) On written applications, if DADS is unable to ascertain the records being requested, DADS may return the written application to the requester for clarification.

(6) DADS will provide the requested records as soon as possible; however, if the records are in active use, or in storage, or time is needed for proper de-identification or preparation of the records for inspection, DADS will so advise the requester and set an hour and date within a reasonable time when the records will be available.

(d) Original records may be inspected or copied, but in no instance will original records be removed from DADS offices.

(e) Regulatory Services will charge for copies of records upon request.

(1) If the requester simply wants to inspect records, the requester will specify the records to be inspected. DADS will make no charge for this service, unless the director of Regulatory Services determines a charge is appropriate based on the nature of the request.

(2) If the requester wants copies of a record, the requester will specify in writing the records to be copied on an appropriate DADS form, and DADS will complete the form by specifying the cost of the records, which the requester must pay in advance. Checks and other instruments of payment must be made payable to the Department of Aging and Disability Services.

(3) Any expenses for standard-size copies incurred in the reproduction, preparation, or retrieval of records must be borne by the requester on a cost basis in accordance with costs established by the Office of the Attorney General or DADS for office machine copies.

(4) For documents that are mailed, DADS will charge for the postage at the time it charges for the production. All applicable sales taxes will be added to the cost of copying records.

(5) When a request involves more than one long-term care facility, each facility will be considered a separate request.

Subchapter F, Abuse, Neglect, and Exploitation

Revision 07-1

 

 

§98.91 Definitions of Abuse, Neglect, and Exploitation

 

For purposes of this subchapter, the definitions of abuse, neglect and exploitation are those found in Chapter 48, Human Resources Code and §98.1 of this title (relating to Definitions).

 

§98.92 Abuse, Neglect, or Exploitation Reportable to DADS by Facilities

 

(a) Any facility staff who has reasonable cause to believe that a client is in a state of abuse, neglect, or exploitation must report the abuse, neglect, or exploitation to DADS state office at 1-800-458-9858 and must follow the facility's internal policies regarding abuse, neglect, or exploitation.

(b) The following information must be reported to DADS:

(1) name, age and address of the client;

(2) name and address of the person responsible for the care of the client, if available;

(3) nature and extent of the elderly or disabled person's condition;

(4) basis of the reporter's knowledge; and

(5) any other relevant information.

(c) The facility must investigate the alleged abuse, neglect or exploitation and send a written report of the investigation to DADS state office no later than the fifth day after the oral report and be available for inspection by DADS.

 

§98.93 Complaint Investigation

 

(a) A complaint is any allegation received by DADS regarding abuse, neglect, or exploitation of a client, or a violation of state standards.

(b) DADS must give the facility notification of the complaint received and a summary of the complaint, without identifying the source of the complaint.

 

§98.94 Investigations of Complaints

 

(a) DADS only investigates complaints of abuse, neglect, or exploitation when the act occurs in the facility, when the licensed facility is responsible for the supervision of the client at the time the act occurs, or when the alleged perpetrator is affiliated with the facility. Other complaints of abuse, neglect, or exploitation not meeting this criteria must be referred to the Department of Family and Protective Services.

(b) Complaint investigations must include a visit to the facility and consultation with persons thought to have knowledge of the circumstances. If the facility fails to admit DADS staff for a complaint investigation, DADS will seek a probate or county court order for admission. Investigators may request of the court that a peace officer accompany them.

(c) In cases concluded to be physical abuse, the written report of the investigation by DADS must be submitted to the appropriate law enforcement agency.

(d) In cases concluded to be abuse, neglect, or exploitation of a client with a guardian, the written report of the investigation by DADS must be submitted to the probate or county court that oversees the guardianship.

 

§98.95 Confidentiality

 

All reports, records, communications, and working papers used or developed by DADS in an investigation are confidential and may be released only as provided in this section.

(1) The final written investigation report on cases may be furnished to the district attorney and appropriate law enforcement agencies if the investigation reveals abuse that is a criminal offense. DADS may provide to another state agency or governmental entity information that is necessary for DADS, state agency or entity to properly execute its duties and responsibilities to provide services to the elderly or disabled.

(2) The final written investigation report may be released to the public upon request provided the report is de-identified to remove all names and other personally identifiable data, including any information from witnesses and other person furnished to DADS as part of the investigation.

(3) The reporter and the facility will be notified of the results of DADS' investigation of a reported case of abuse, neglect or exploitation, whether DADS concluded that abuse, neglect or exploitation occurred or did not occur.

(4) Upon written request of the person who is the subject of the report of abuse, neglect or exploitation or his legal representative, DADS shall release to the person or his legal representative otherwise confidential information relating to the final report. The request must specify the information desired and be signed and dated by the individual or his legal representative. The legal representative of a deceased person may make a written request for this information. The legal representative of a deceased person must also specify the reason the information is requested. Any legal representative must include with the request sufficient documentation to establish his authority. DADS shall edit the information before release to protect the confidentiality of information related to the reporter's identify and to protect any other individual whose safety or welfare may be endangered by disclosure.

Subchapter G, Enforcement

Revision 13-1

 

 

§98.102 Nonemergency Suspension

 

(a) DADS may suspend a facility's license when the facility's violation of the licensure rules threatens to jeopardize the health and safety of clients.

(b) Suspension of a license may occur simultaneously with any other enforcement provision available to DADS.

(c) The facility will be notified by certified mail of DADS' intent to suspend the license, including the facts or conduct alleged to warrant the suspension. The facility has an opportunity to show compliance with all requirements of law for the retention of the license as provided in §98.20 of this title (relating to Opportunity to Show Compliance). If the facility requests an opportunity to show compliance, DADS will give the license holder a written affirmation or reversal of the proposed action.

(d) The facility will be notified by certified mail of DADS' suspension of the facility's license. If DADS suspends a facility'slicense, the licensee may request a formal appeal by following the Health and Human Services Commission's formal hearing procedures in 1 TAC Chapter 357, Subchapter I. A formal administrative hearing is conducted in accordance with Texas Government Code, Chapter 2001, and the formal hearing procedures in 1 TAC Chapter 357, Subchapter I. The suspension will take effect when the deadline for appeal of the suspension passes, unless the facility appeals the suspension. If the facility appeals the suspension, the status of the license holder is preserved until final disposition of the contested matter.

(e) The suspension will remain in effect until DADS determines that the reason for suspension no longer exists. A suspension may last no longer than the term of the license. DADS will conduct an on-site investigation before making a determination. During the suspension, the license holder must return the license to DADS.

 

§98.103 Revocation

 

(a) DADS may revoke a facility's license when the license holder has violated the requirements of the Texas Human Resources Code, Chapter 103.

(b) In addition, DADS may revoke a license if the licensee:

(1) submitted false or misleading statements in the application for a license or any accompanying attachments;

(2) used subterfuge or other evasive means to obtain the license;

(3) concealed a material fact in the application for a license or failed to disclose information required in §98.13 of this title (relating to Applicant Disclosure Requirements) that would have been the basis to deny the license under §98.19 of this title (relating to Criteria for Denying a License or Renewal of a License); or

(4) violated the requirements of the Texas Human Resources Code, Chapter 103, or the rules adopted under this chapter

(c) Revocation of a license may occur simultaneously with any other enforcement provision available to DADS.

(d) The facility will be notified by certified mail of DADS' intent to revoke the license, including the facts or conduct alleged to warrant the revocation. The facility has an opportunity to show compliance with all requirements of law for the retention of the license as provided in §98.20 of this title (relating to Opportunity to Show Compliance). If the facility requests an opportunity to show compliance, DADS will give the license holder a written affirmation or reversal of the proposed action.

(e) If DADS revokes a facility's license, the licensee may request a formal appeal by following the Health and Human Services Commission's formal hearing procedures in 1 TAC Chapter 357, Subchapter I. A formal administrative hearing is conducted in accordance with the formal hearing procedures in 1 TAC Chapter 357, Subchapter I. If the facility appeals the revocation, the status of the license holder is preserved until final disposition of the contested matter.

 

§98.104 Emergency Suspension and Closing Order

 

(a) DADS will suspend a facility's license or order an immediate closing of part of the facility if:

(1) DADS finds that the facility is operating in violation of the licensure rules; and

(2) the violation creates an immediate threat to the health and safety of a client.

(b) The order suspending a license or closing a part of a facility under this section is immediately effective on the date the license holder receives a hand-delivered written notice or on a later date specified in the order.

(c) The order suspending a license or ordering an immediate closing of a part of the facility is valid for 10 days after the effective date of the order.

(d) A licensee whose facility is closed under this section is entitled to request a formal administrative hearing under the Health and Human Services Commission's formal hearing procedures in 1 TAC, Chapter 357, Subchapter I, but a request for an administrative hearing does not suspend the effectiveness of the order.

(e) When an emergency suspension has been ordered and the conditions in the facility indicate that clients should be relocated, the following apply:

(1) In all circumstances, a client's rights or freedom of choice in selecting an adult day care facility must be respected.

(2) If a facility or part thereof is closed, the following procedures must be followed:

(A) DADS will notify the local health department director, city or county health authority and representatives of the appropriate state agencies of the closure.

(B) The facility staff must notify each client's guardian or responsible party and attending physician, advising them of the action in process.

(C) The client or client's guardian or responsible party must be given opportunity to designate a preference for a specific facility or for other arrangements.

(D) DADS will arrange for relocation to other facilities in the area in accordance with the client's preference. A facility chosen for relocation must be in good standing with DADS and, if certified under Titles XVIII and XIX of the United States Social Security Act, must be in good standing under its contract. The facility chosen must be able to meet the needs of the client.

(E) If absolutely necessary, to prevent transport over substantial distances, DADS will grant a waiver to a receiving facility to temporarily exceed its licensed capacity, provided the health and safety of clients is not compromised and the facility can meet the increased demands for direct care personnel and dietary services. A facility may exceed its licensed capacity under these circumstances, monitored by DADS staff, until clients can be transferred to a permanent location.

(F) With each client transferred, the following reports, records and supplies must be transmitted to the receiving institution:

(i) a copy of the current physician's orders for medication, treatment, diet and special services required;

(ii) personal information such as name and address of next of kin, guardian or responsible party for the client; attending physician; Medicare and Medicaid identification number; Social Security number; and other identification information as deemed necessary and available; and

(iii) all medication dispensed in the name of the client for which physician's orders are current. These must be inventoried and transferred with the client.

(G) If the closed facility is allowed to reopen within 90 days, the relocated clients have the first right to return to the facility. Relocated clients may choose to return, may stay in the receiving facility (if the facility is not exceeding its licensed capacity) or choose any other accommodations.

(H) Any return to the facility must be treated as a new admission including exchange of medical information, medications and completion of required forms.

 

§98.105 Administrative Penalties

 

(a) DADS may assess an administrative penalty if an adult day care facility:

(1) violates Texas Human Resources Code (THRC) Chapter 103, a rule, standard, or order adopted under this chapter, or a term of a license issued under this chapter;

(2) makes a false statement of a material fact that the facility knows or should know is false:

(A) on an application for a license or a renewal of a license or in an attachment to the application; or

(B) with respect to a matter under investigation by DADS;

(3) refuses to allow a DADS representative to inspect:

(A) a book, record, or file required to be maintained by an adult day care facility; or

(B) any portion of the premises of an adult day care facility;

(4) willfully interferes with the work of a representative of DADS or the enforcement of this chapter;

(5) willfully interferes with a DADS representative who is preserving evidence of a violation of THRC Chapter 103, a rule adopted under this chapter, or a term of a license issued under this chapter;

(6) fails to pay a penalty assessed under THRC Chapter 103 or a rule adopted under this chapter not later than the 30th day after the date the assessment of the penalty becomes final; or

(7) fails to notify DADS of a change of ownership before the effective date of the change of ownership.

(b) DADS assesses administrative penalties against an adult day care facility in accordance with the schedule of appropriate and graduated penalties established in this section. DADS considers the following in determining the amount of an administrative penalty:

(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the situation, and the hazard or potential hazard created by the situation to the health or safety of the public;

(2) the history of previous violations by a facility;

(3) the amount necessary to deter future violations;

(4) the facility's efforts to correct the violation; and

(5) any other matter that justice may require.

(c) Each day of a continuing violation constitutes a separate violation. The administrative penalties for each day of a continuing violation cease on the date the violation is corrected. A violation that is the subject of a penalty is presumed to continue on each successive day until it is corrected. The date of correction alleged by the facility in its written plan of correction will be presumed to be the actual date of correction unless it is later determined by DADS that the correction was not made by that date or was not satisfactory.

(d) The administrative penalty schedule includes violations that warrant an administrative penalty.
Figure: 40 TAC §98.105(d)

(e) DADS may not collect an administrative penalty from an adult day care facility if, not later than the 45th day after the date the facility receives notice under subsection (j) of this section, the facility corrects the violation.

(f) Subsection (e) of this section does not apply to:

(1) a violation that DADS determines:

(A) results in serious harm to or death of a person attending the adult day care facility;

(B) constitutes a serious threat to the health and safety of a person attending the facility; or

(C) substantially limits the facility's capacity to provide care;

(2) a violation described by subsection (a)(2)-(7) of this section; or

(3) a violation of THRC Chapter 102.

(g) An adult day care facility that corrects a violation must maintain the correction. If the facility fails to maintain the correction until at least the first anniversary after the date the correction was made, DADS may assess and collect an administrative penalty for the subsequent violation. An administrative penalty assessed under this subsection is equal to three times the amount of the original penalty assessed but not collected. DADS is not required to provide the facility with an opportunity to correct the subsequent violation.

(h) DADS issues a preliminary report stating the facts on which DADS concludes that a violation has occurred after DADS has:

(1) examined the possible violation and facts surrounding the possible violation; and

(2) concluded that a violation has occurred.

(i) In the report, DADS may recommend the assessment of an administrative penalty for each violation and the amount of the administrative penalty.

(j) DADS provides a written notice of a preliminary report to the adult day care facility not later than 10 days after the date DADS issues the preliminary report. The written notice includes:

(1) a brief summary of each violation;

(2) the amount of each recommended administrative penalty;

(3) a statement of whether a violation is subject to correction in accordance with subsection (e) of this section and, if the violation is subject to correction, a statment of:

(A) the date on which the facility must file with DADS a plan of correction for approval by DADS; and

(B) the date on which the facility must complete the plan of correction to avoid assessment of the administrative penalty; and

(4) a statement that the facility has a right to an administrative hearing on the occurrence of the violation, the amount of the penalty, or both.

(k) Not later than 20 days after the date on which an adult day care facility receives a written notice of a preliminary report, the facility may:

(1) give DADS written notice that the facility agrees with DADS report and consents to the recommended penalty; or

(2) make a written request for an administrative hearing.

(l) If a violation is subject to correction under subsection (e) of this section, the adult day care facility must submit a plan of correction to DADS for approval not later than 10 days after the date on which the facility receives the written notice.

(m) If a violation is subject to correction, and the adult day care facility reports to DADS that the violation has been corrected, DADS inspects the correction or takes any other step necessary to confirm the correction and notify the facility that:

(1) the correction is satisfactory and DADS will not assess an administrative penalty; or

(2) the correction is not satisfactory and DADS recommends an administrative penalty.

(n) Not later than 20 days after the date on which an adult day care facility receives a notice that the correction is not satisfactory and DADS recommends an administrative penalty, the facility may:

(1) give DADS written notice that the facility agrees with DADS determination and consents to the recommended administrative penalty; or

(2) make a written request to the Texas Health and Human Services Commission (HHSC) for an administrative hearing.

(o) If an adult day care facility consents to the recommended administrative penalty or does not timely respond to a notice sent under subsection (j) of this section (written notice of the preliminary report), the DADS commissioner or commissioner's designee assesses the recommended administrative penalty. If the DADS commissioner or commissioner's designee assesses the penalty, DADS gives written notice of the penalty to the facility and the facility must pay the penalty within 30 days after receiving the notice.

(p) An administrative hearing is held in accordance with Chapter 91 of this title (relating to Hearings Under the Administrative Procedure Act) and HHSC rules at 1 Texas Administrative Code, Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act).

(q) An administrative law judge sets a hearing and gives notice of the hearing if an adult day care facility that is assessed a penalty requests a hearing.

(r) The hearing is held before an administrative law judge who makes findings of fact and conclusions of law regarding the occurrence of a violation under THRC Chapter 103, a rule adopted under this chapter or a term of a license issued under this chapter.

(s) Based on the findings of fact and conclusions of law and the recommendation of the administrative law judge, the DADS commissioner or commissioner's designee, by order, finds:

(1) a violation has occurred and assesses an administrative penalty; or

(2) a violation has not occurred.

(t) DADS commissioner or the commissioner's designee provides notice of the findings made under subsection (s) of this section to the adult day care facility charged with a violation. If the DADS commissioner finds that a violation has occurred, the commissioner or commissioner's designee provides written notice to the facility of:

(1) the findings;

(2) the amount of the administrative penalty;

(3) the rate of interest payable on the penalty and the date on which interest begins to accrue; and

(4) the facility's right to judicial review of the order of the commissioner.;

(u) Not later than the 30th day after the date on which the order of the DADS commissioner or commissioner's designee is final, the adult day care facility assessed an administrative penalty must:

(1) pay the full amount of the penalty; or

(2) file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both.

(v) Notwithstanding subsection (o) of this section, DADS may permit an adult day care facility to pay an administrative penalty in installments.

(w) If an adult day care facility does not pay an administrative penalty within the period provided by subsection (o) or (u) of this section or in accordance with the installment plan permitted by DADS:

(1) the penalty is subject to interest; and

(2) DADS may refer the matter to the attorney general for collection of the penalty and interest.

(x) Interest accrues:

(1) at a rate equal to the rate charged on loans to depository institutions by the New York Federal Reserve Bank; and

(2) for the period beginning on the day after the date on which the penalty becomes due and ending on the date the penalty is paid.

(y) If the amount of a penalty is reduced or the assessment of a penalty is not upheld on judicial review, DADS commissioner or commissioner's designee must:

(1) remit to the adult day care facility the appropriate amount of any penalty payment plus accrued interest; or

(2) execute a release of the supersedeas bond if one has been posted.

(z) Accrued interest on the amount remitted by the DADS commissioner or commissioner's designee must be paid:

(1) at a rate equal to the rate charged on loans to depository institutions by the New York Federal Reserve Bank; and

(2) for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted to the adult day care facility.

Subchapter H, Day Activity and Health Services (DAHS) Contractual Requirements

Revision 16-1

 

 

§98.200 Applicability

 

Subchapter H of this chapter applies only to a DAHS facility that contracts with DADS to provide DAHS under Title XIX or Title XX of the Social Security Act.

 

§98.201 Eligibility Requirements for Participation

 

The client must meet eligibility requirements described in §48.2915 of this title (relating to Day Activity and Health Services). The physician providing the physician's order cannot be the facility owner or have a significant financial or contractual relationship with the facility.

 

§98.202 Program Overview

 

(a) A DAHS facility must:

(1) contract with DADS to provide day activity and health services (DAHS);

(2) provide services at least 10 continuous hours each day, five days a week (Monday through Friday), except for published holidays;

(3) serve eligible clients, unless a DAHS facility is at licensed capacity;

(4) participate in the Child and Adult Care Food Program (CACFP). The DAHS facility must submit documentation of participation in the CACFP to DADS. Documentation consists of a copy of the CACFP agreement or a copy of the approval letter for participation in the CACFP, or both;

(5) advise the individual of his rights in a language he understands and provide him with a signed copy. The DAHS facility must maintain the original in the record; and

(6) comply with complaint procedures in community services generic contracting rules §49.18(a)(4) and §49.18(b)-(c) of this title (relating to Client Rights and Responsibilities), and §49.17 of this title (relating to Complaint Procedures).

(b) DADS reserves the right to deny any DAHS facility a contract if it is not in the best interest of DADS.

 

§98.203 Written Referrals for Services

 

(a) DAHS facilities receive written referrals from caseworkers based on the following priorities:

(1) client's choice;

(2) physician's choice, if stated; and

(3) rotation of eligible providers.

(b) When a DAHS facility receives a referral from the caseworker, the DAHS facility nurse must make every effort to request prior approval for the client within 14 days after the referral date on DADS' authorization for community care services form.

(c) If the DAHS facility cannot request prior approval within 14 days, the DAHS facility must notify the caseworker about the reason for delay. This notification must be sent on DADS' Case Information form within 14 days after the referral date.

(d) Within the same 14 days after receipt of DADS' authorization for community care services form from the caseworker and before requesting prior approval, the nurse must conduct a health assessment/plan of care with the client, using DADS' Client Health Assessment/Plan of Care form. If the client is unable to participate due to cognitive impairment, the client's responsible party should participate.

(e) If the nurse cannot conduct the health assessment within 14 days after the referral date, the DAHS facility must notify the caseworker about the reason for delay on DADS' Case Information form within the 14-day period.

(f) Within the same 14 days after receipt of DADS' authorization for community care services form from the caseworker, the nurse must obtain a physician's order for the client by sending DADS' Physician's Order for Day Activity and Health Services form to the client's physician. The nurse sends a copy of DADS' Client Health Assessment/Plan of Care form to the physician.

(g) If the DAHS facility cannot obtain physician's orders within 14 days after the referral date, the DAHS facility must notify the caseworker about the reason for delay. The notification must be sent on DADS' Case Information form within the 14-day period. DADS' Case Information form must include the date of the health assessment/plan of care and must be dated after the health assessment/plan of care date, if one has been conducted.

(h) If the physician fails to date DADS' Physician's Order for Day Activity and Health Services form or if the signature date is illegible, the DAHS facility stamp-in date will be considered the date of the physician's order. The date stamp must include the day, month, year, and the name of the DAHS facility. An abbreviated name or initials are acceptable.

 

§98.204 DAHS Facility-Initiated Referrals

 

(a) The applicant may be admitted to a day activity and health services DAHS facility as soon as verbal physician's orders are obtained if he appears to:

(1) be Medicaid eligible; and

(2) meet the medical/functional need criteria based on the information collected on DADS' Client Health Assessment/Plan of Care form.

(b) When a DAHS facility initiates a referral:

(1) the DAHS facility interviews the applicant to determine whether he appears to be Medicaid eligible. The DAHS facility determines Medicaid eligibility by reviewing the information on the applicant's Medical Care Identification Card;

(2) the nurse:

(A) conducts a health assessment/plan of care to determine whether the applicant appears to have a medical need for the service. The nurse determines medical need by completing DADS' Client Health Assessment/Plan of Care form; and

(B) obtains verbal or written physician orders, if the applicant appears to meet the medical/functional need criteria;

(3) the DAHS facility verbally notifies the DADS caseworker or intake unit of the placement the day the applicant contacts the DAHS facility. The DAHS facility follows up the notification in writing within seven days using DADS' Case Information form. This verbal notification is a request for community services and supports.

(c) The DAHS facility must request written prior approval for the applicant from the regional nurse within 30 days after the date of the physician orders.

(d) If the DAHS facility fails to submit prior approval forms or additional documentation within required time frames, if the additional documentation is not adequate, or if the applicant is determined ineligible by the DADS caseworker, the regional nurse cancels the DAHS facility-initiated prior approval and the DAHS facility is not reimbursed for services.

(e) If DADS' Client Health Assessment/Plan of Care form or Physician's Order for Day Activity and Health Services form is missing, or if any of the critical omissions or errors stated in paragraphs (1)-(9) of this subsection have occurred in the required documentation, the DAHS facility cannot obtain prior approval.

(1) The nurse fails to sign or date DADS' Client Health Assessment/Plan of Care form or omits the registered nurse/licensed vocational nurse credentials that should follow his signature.

(2) Documentation on DADS' Client Health Assessment/Plan of Care form does not support the medical eligibility criteria specified in §98.201 of this title (relating to Eligibility Requirements for Participation).

(3) Items A, B, in Sections II and III of DADS' Client Health Assessment/Plan of Care form are not completed or completed incorrectly and medical need cannot be determined.

(4) DADS' Physician's Order for Day Activity and Health Services form does not include the MD or DO credential of the physician who signed the form.

(5) DADS' Physician's Order for Day Activity and Health Services form does not include the license number of the physician who signed it.

(6) The physician who signed the order is excluded from participation in Medicare or Medicaid.

(7) The physician's signature is not on DADS' Physician's Order for Day Activity and Health Services form.

(8) The physician's signature date is missing or illegible and the DAHS facility's stamped date is missing from DADS' Physician's Order for Day Activity and Health Services form.

(9) The DAHS facility's stamped date used instead of the physician's date on DADS' Physician's Order for Day Activity and Health Services form does not include the provider agency's name, abbreviated name, or initials.

 

§98.205 Initiation of Services

 

(a) The DAHS facility must initiate services within seven days after the beginning date of coverage in Item 4 of DADS' Authorization for Community Care Services.

(b) If the DAHS facility does not initiate services within the seven-day period, the DAHS facility must notify the caseworker, using DADS' Case Information form, by the eighth day after the beginning date of coverage in Item 4 of DADS' Authorization for Community Care Services. DADS' Case Information form must include the reasons for the delay and the date when services are scheduled to begin.

(c) The DAHS facility must complete and return DADS' authorization for community care services form to the caseworker within 14 days after the beginning date of coverage in Item 4 of DADS' authorization for community care services form. The DAHS facility must indicate the date services were initiated, the schedule for delivering services, and the total units authorized for the client.

 

§98.206 Program Requirements

 

The DAHS facility must provide services that include the following:

(1) Nursing services. Nursing services must include:

(A) assessing, observing, evaluation and documenting a client's health condition and instituting appropriate nursing intervention to stabilize or improve a client's condition or prevent complications;

(B) assisting the client to order, maintain, or administer prescribed medications or treatments, as indicated by physician's orders;

(C) counseling the client on his health need and illness and involving significant others in the discussions of his immediate and long-term health goals; and

(D) providing or supervising personal care services to enable the client to restore, maintain or improve his ability to perform personal care tasks. For purposes of this requirement, personal care is defined as assistance in dressing, eating, grooming, bathing, toileting, transferring/ambulation or assistance with self- administering medication.

(2) Physical rehabilitative services. Physical rehabilitative services must include:

(A) restorative nursing; and

(B) group and individual exercises, including range of motion exercises.

(3) Nutrition/food service. Nutrition/food service in DAHS facilities is provided under 1 TAC Chapter 378, Subchapter A, concerning the Child and Adult Care Food Program (CACFP) and must include:

(A) one hot noon meal served between the hours of 11 a.m. and 1 p.m. The meal must:

(i) be suitable in quantity and adequacy to attain and maintain nutritional requirements, including those of special needs clients. The CACFP staff monitor the adequacy of a meal by totaling the amount of food produced and cooked by the number of adults fed to determine if the average amount of food meet the following food components: two ounces of meat, 1/2 cup of fruit/vegetables, one cup of milk and two servings of bread; and

(ii) supply 1/3 of the recommended daily allowance for adults as recommended by the United States Department of Agriculture;

(B) special diets as required by the client's plan of care;

(C) a supplementary mid-morning and mid-afternoon snack;

(D) dietary counseling and nutrition education for the client and his family; and

(E) assisting the client with his meals if necessary. This includes:

(i) food texture modification, including grinding meats and mashing vegetables for clients having trouble chewing; and

(ii) food management, including spoon feeding, bread buttering and milk opening for clients with hand deformities, paralysis or hand tremors.

(4) Other supportive services in DAHS facilities. Other supportive services must include:

(A) community interaction, cultural enrichment, educational or recreational activities and other social activities on site or in the community in a planned program to meet the social needs and interests of the clients;

(B) providing at least three social activities per day; and

(C) posting a monthly activity calendar at least one week in advance.

(5) Transportation services in DAHS facilities.

(A) Transportation services must include:

(i) transportation to and from the DAHS facility; and

(ii) transportation to and from a DAHS facility approved to provide therapies, if the client requires specialized services on days of attendance at the day activity and health services DAHS facility.

(B) If the DAHS facility provides transportation for a client to a non-therapy medical DAHS facility, the DAHS facility can claim the time spent in transport as part of the unit of services.

(C) If the DAHS facility does not provide transportation, the DAHS facility must coordinate transportation with other resources.

(D) Vehicles used for transportation services must be properly operated and maintained and have proper heating and cooling systems to maintain reasonable temperature levels inside the vehicle.

 

§98.207 Suspension of Day Activity and Health Services

 

(a) The DAHS facility must suspend services before the end of the prior approval period if one or more of the circumstances specified in paragraphs (1)-(10) of this subsection occur:

(1) the client leaves the state or moves outside the geographic area served by the DAHS facility;

(2) the client dies;

(3) the client is admitted to a hospital, nursing home, state school or state hospital;

(4) the client requests that services end;

(5) the physician requests that services end;

(6) the Health and Human Services Commission (HHSC) denies the client's Medicaid/Title XX eligibility;

(7) DADS enforces sanctions against the DAHS facility by terminating the contract;

(8) the client threatens the health and safety of himself or others;

(9) the client is absent from the DAHS facility for 15 consecutive days;

(10) the client becomes ineligible for Medicaid. Each month the DAHS facility must verify that a client has a current HHSC Medical Care Identification Card.

(b) No later than the first DADS workday after services are suspended, the DAHS facility must verbally notify the caseworker or staff in the caseworker's office about the reason the DAHS facility suspended services. Written notification on DADS' Case Information form must be sent to the caseworker within seven workdays after the incident that was reported verbally.

 

§98.208 Notifications

 

(a) If a client becomes ill or injured at the DAHS facility, the director/nurse must notify a relative or other responsible person the same day of the occurrence. Clients with communicable diseases cannot attend the DAHS facility until the physician has released the client. Examples of communicable disease are lice and scabies.

(b) No later than the DADS workday after becoming aware of changes in the client's status or condition, the DAHS facility must verbally notify the caseworker or staff in the caseworker's office about any change that may require a change in the client'splan of care, units, or service termination. The DAHS facility must follow up this verbal notification in writing, to the caseworker, using DADS' Case Information form. Written notification must occur within seven days after verbal notification.

(c) If a client is absent from a regularly scheduled program, DAHS facility staff must contact the client or someone knowledgeable about his condition the same day that the absence occurs. If DAHS facility staff are unable to contact the client or someone knowledgeable about his condition, staff document this in the client's record.

(d) The DAHS facility must verbally notify DADS by the next DADS workday and in writing within seven days after verbal notification of the following changes in DAHS facility operations:

(1) change in operation, telephone number and location of administrative office;

(2) change in hours of operation; and

(3) change in director, activities director, nurse or membership of governing board.

 

§98.209 Record Maintenance

 

(a) Personnel records. The DAHS facility must keep personnel records in a central location in the DAHS facility. Personnel records include staff qualifications, performance reports, attendance, and staff development records. The DAHS facility must maintain these documents and records according to the retention requirements. The DAHS facility must document staff coverage for days when regular staff are away from the DAHS facility on sick or vacation leave.

(b) Attendance records. The DAHS facility must use DADS forms to maintain a daily record of attendance and transportation to and from the DAHS facility, including the time each client began receiving services and the time he left the DAHS facility's care. If transportation is provided by the DAHS facility, driver's transportation records must be used. Arrival and departure times must be documented for clients not using DAHS facility-provided transportation.

(c) Transportation records. The DAHS facility driver must maintain accurate daily transportation and mileage records, and records of expenses for purchase of gas and oil.

 

§98.210 Administrative Errors and Corrections

 

(a) Administrative errors include the following:

(1) The DAHS facility enters a date of signature on DADS' Daily Attendance Record form that is before the date of the last day services are provided. DADS applies the error to the total number of units reimbursed after the signature date.

(2) The DAHS facility fails to sign DADS' Daily Attendance Record form and the signature can be verified on DADS' Daily Transportation Record form. DADS applies the error to the total number of units reimbursed on the unsigned form.

(3) The DAHS facility fails to list the client on DADS' Daily Attendance Record form, but the client was listed on DADS' Daily Transportation Record form. DADS applies the error to the total number of units reimbursed for the period the client was left off the attendance record form.

(4) The DAHS facility completes the total units of service column and leaves the time in and time out columns blank on DADS' Daily Attendance Record form, but the time in and time out can be verified on DADS' Daily Transportation Record form. DADS applies the error to the total number of units reimbursed in which the time in time out days were left blank.

(5) The DAHS facility leaves the days of service blank on DADS' Daily Attendance Record form, but the days of service can be verified elsewhere on the form or on DADS' Daily Transportation Record form. DADS applies the error to the total number of units reimbursed for the days left blank.

(6) The DAHS facility fails to enter a date of signature on DADS' Daily Attendance Record form to certify total number of units provided to the client. DADS applies the error to the total number of units reimbursed on the undated form.

(7) The DAHS facility corrects the date of signature on DADS' Daily Attendance Record form, but fails to initial the correction. DADS applies the error to the number of units reimbursed after the earliest signature date.

(8) The DAHS facility uses a signature stamp, but fails to initial the stamped signature. DADS applies the error to the total number of units reimbursed on the signature stamped form.

(9) The DAHS facility makes an illegible entry or illegible correction to any portion of record of time of DADS' Daily Attendance or Daily Transportation Record form. DADS applies the error to the total number of units reimbursed for the days in which entries are illegible.

(10) The DAHS facility completes DADS' Daily Attendance or Daily Transportation Record form in pencil. DADS applies the error to the total number of units reimbursed that were completed in pencil.

(11) The DAHS facility uses liquid paper or correction fluid to correct an entry in DADS' Daily Attendance or Daily Transportation Record form. DADS applies the error to the total number of units reimbursed that were corrected for the billing period.

(b) In the absence of acceptable secondary documentation, financial errors include the errors specified in paragraphs (1)-(3) of this subsection.

(1) The DAHS facility is reimbursed for services, but DADS' Daily Attendance and Daily Transportation Record form is missing for the period for which services are reimbursed. DADS applies the error to the total number of units reimbursed for the billing period.

(2) The DAHS facility is reimbursed for units that exceed the units recorded on DADS' Daily Attendance and Daily Transportation Record form. DADS applies the error to the total number of units reimbursed in excess of the units recorded.

(3) The DAHS facility is reimbursed for units of service and the client did not receive services or was Medicaid ineligible (not applicable to Title XX clients). DADS applies the error to the total number of units reimbursed for the days the client did not receive services or was Medicaid ineligible.

(c) Corrections of critical omissions or errors in DAHS facility documentation must be postmarked or date stamped as received by DADS within 14 days after the regional nurse mails DADS' Notification of Critical Omissions/Errors in Required Documentation form to the DAHS facility. If the DAHS facility fails to meet this time frame;

(1) the date of prior approval can be no earlier than the postmark or DADS-stamped date on the corrected documentation; or,

(2) DADS may refer the client to another DAHS facility of the client's choice.

(A) If there is space in another DAHS facility, the regional nurse notifies the caseworker by the next workday to give the client or client's family/representative the option to be referred to another DAHS facility.

(B) The caseworker will contact the client within three workdays after being notified by the regional nurse and refers the client to another DAHS facility, if the client or the client's family/representative prefers this option.

(d) An exception of 12% of the paid unit rate is the administrative portion applied to the unit of service.

 

§98.211 Billing and Payment

 

(a) The method of payment is a unit of authorized service and is defined as half a day. One unit of service constitutes three hours but less than six hours of covered services provided by the DAHS facility. Six hours or more of service constitutes two units of service. Time spent in approved transportation provided by the DAHS facility shall be counted in the unit of service.

(b) The DAHS facility is not entitled to payment if:

(1) the DAHS facility fails to submit prior approval forms or supporting documentation to the regional nurse within the required time frames for DAHS facility initiated referrals;

(2) the DAHS facility did not maintain the staff-client ratio for one or more days;

(3) the DAHS facility exceeded its license capacity; or

(4) the DAHS facility's monthly claims do not correspond to the DAHS facility's service authorizations and DADS' Daily Attendance/Daily Transportation Record form.

 

§98.212 Sanctions

 

(a) A DAHS facility may be sanctioned under §49.11(d) of this title (relating to Contracting Requirements) for failing to follow the terms of the DAHS facility contract, or failure to comply with program rules, policies, and procedures, or both.

(b) DADS can deny and recoup funds from a DAHS facility for the days it exceeded its licensed capacity. The amount denied or recouped is two units of service (regardless of the number of units actually provided) for every individual (client, applicant, private pay, etc.) that exceeded the DAHS facility license capacity.

Revisions

DAHSR, 17-1, Change of Ownership

Revision Notice 17-1; Effective October 11, 2017

 

This revision adopts rules related to change of ownership of a license holder for Day Activity and Health Services (DAHS). Under the adopted rules, a license holder is not required to apply for a new license if the ownership structure of the license holder changes but the license holder is the same legal entity, as evidenced by having the same federal taxpayer identification number. Changes in ownership structure must be reported to HHSC under other existing rules.

§98.2 adds definitions concerning change of ownership, direct ownership interest, disclosable interest, indirect ownership interest, and license holder.

§98.16 adds DADS conducts an on-site health inspection to verify compliance with the licensure requirements before issuing a license as a result of a change of ownership. DADS may conduct a desk review instead of an on-site health inspection before issuing a license as a result of a change of ownership if:

  • less than 50 percent of the direct or indirect ownership interest of the former license holder changed, when compared to the new license holder; or
  • every person with a disclosable interest in the new license holder had a disclosable interest in the former license holder.

DADS, in its sole discretion, may conduct an on-site Life Safety Code inspection before issuing a license as a result of a change of ownership. If a license holder adds an owner with a disclosable interest, but the license holder does not undergo a change of ownership, the license holder must notify DADS of the addition no later than 30 days after the addition of the owner.

16-1, New Title and Chapter 98 Update

Revision Notice 16-1; Effective December 1, 2016

 

This revision changes the title of 40 Texas Administrative Code Part 1, Chapter 98 to Day Activity and Health Services Requirements, and updates terminology throughout the chapter to comply with Senate Bill (S.B.) 1999, 84th Legislature. S.B. 1999 amended the title of Texas Human Resources Code (THRC), Chapter 103, from Adult Day Care to Day Activity and Health Services, and made additional conforming amendments to the chapter. This revision makes those changes, and also restates the purpose of the chapter more succinctly, deletes unnecessary definitions, and amends definitions for consistency and clarity. The term "DAHS facility" is redefined to be consistent with the type of facility that must be licensed under THRC Chapter 103.

§98.1 more succinctly states the purpose of the chapter, which is to provide licensing procedures and standards, as well as contracting requirements for DAHS facilities.

§98.2 deletes the definitions of "adult day care facility" and adds definitions of "DAHS," "DAHS facility," and "DAHS program" that are consistent with THRC, Chapter 103. The revision deletes definitions of "contract manager," "DHS," and "handicapped person" because the terms are not used in Chapter 98. The term "individual plan of care" is deleted because the term "plan of care" is defined. The term "facility" is used throughout Chapter 98 to refer to a licensed DAHS facility, so that term remains in the definitions. In addition, the definitions of "registered nurse" and "licensed vocational nurse" are amended to refer to the Texas Board of Nursing. Editorial changes are made to other definitions to clarify their meanings.

§98.11 updates terminology to comply with THRC, Chapter 103. Other changes clarify the meaning of the rules by restructuring provisions, deleting passive voice, and using consistent terminology.

§98.62 updates terminology to comply with THRC, Chapter 103. A person receiving services from a DAHS facility is referred to as "individual," rather than a "client." Other changes clarify the meaning of the rules by restructuring provisions, deleting passive voice, and using consistent terminology.

New §98.200 clarifies that Subchapter H applies only to DAHS facilities that contract with DADS to provide DAHS.

13-1, Administrative Penalties

Revision Notice 13-1; Effective May 1, 2013

 

§98.105 implements Senate Bill 223, 82nd Legislature, which allows DADS to assess an administrative penalty against an adult day care facility that violates licensing requirements. In addition to establishing rules for applying an administrative penalty, the new section includes an administrative penalty schedule that reflects categories of violations and corresponding penalties to be assessed for each violation cited during a survey of a licensed adult day care facility.

12-1, Licensing

Revision Notice 12-1; Effective January 18, 2012

 

This revision implements Senate Bill 78, 82nd Legislature, which authorizes DADS to deny or refuse to renew a license if an applicant or certain persons associated with an applicant are listed in a health and human service agency's record of adverse licensing action.

§98.19 adds criteria for denying an initial license or refusing to renew a license for an adult day care facility and updates a reference to the title of Chapter 99.

Contact Us

For questions about the Day Activity and Health Services Requirements Handbook, email: AlfRules@hhsc.state.tx.us

For technical or accessibility issues with this handbook, email: Editorial_Services@hhsc.state.tx.us