Licensing Standards for Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions (ICFs/IID) Handbook

Subchapter A, Introduction

Revision 17-1

 

§90.2 Scope

(a) The purpose of this chapter is to promote the public health, safety, and welfare by providing for the development, establishment and enforcement of standards for the provision of services to individuals residing in intermediate care facilities for persons with mental retardation or a related condition.

(b) The term "facility serving persons with mental retardation or related conditions," when used in this chapter, means an establishment or home that provides food, shelter, and treatment or services to four or more persons who are unrelated to the owner; is primarily for the diagnosis, treatment, or rehabilitation of persons with mental retardation or related conditions; and provides in a protected setting continuous evaluation, planning, 24-hour supervision, coordination and integration of health or rehabilitative services to help each resident function at the resident's greatest ability.

(1) A person receiving services in a facility serving persons with mental retardation or related conditions must have a diagnosis of mental retardation or a related condition as defined under paragraph (2) of this subsection. Facilities serving persons with other developmental disabilities as a primary diagnosis do not fall under the scope of these standards.

(2) The term "related condition" means a severe, chronic disability that meets all of the following conditions:

(A) a condition attributable to:

(i) cerebral palsy or epilepsy; or

(ii) any other condition including autism, but excluding mental illness, found to be closely related to mental retardation because this condition results in impairment of general intellectual functioning or adaptive behavior similar to that of persons with mental retardation and requires treatment or services similar to those required for these persons;

(B) a condition manifested before the person reaches age 22 years;

(C) a condition likely to continue indefinitely; and

(D) a condition that results in substantial functional limitations in three or more of the following areas of major life activity:

(i) self-care;

(ii) understanding and use of language;

(iii) learning;

(iv) mobility;

(v) self-direction; and

(vi) capacity for independent living.

(c) This chapter does not apply to an establishment that:

(1) provides training, habilitation, rehabilitation or education to individuals with mental retardation or a related condition; is operated under the jurisdiction of a state or federal agency, including the department, the Texas Rehabilitation Commission, the Texas Department of Mental Health and Mental Retardation, the Texas Commission for the Blind, the Texas Commission on Alcohol and Drug Abuse, the institution division of the Texas Department of Criminal Justice, or the Veterans' Administration; and, is certified through inspection or evaluation as meeting the standards established by the state or federal agency; or

(2) is conducted by or for the adherents of a well-recognized church or religious denomination for the purpose of providing facilities for the care or treatment of the sick who depend exclusively on prayer or spiritual means for healing, without the use of any drug or material remedy, if the establishment complies with safety, sanitary, and quarantine laws and rules.

§90.3 Definitions

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise. Individual subchapters may have definitions that are specific to the subchapter.

(1)Addition — The addition of floor space to a facility.

(2) Administrator — The administrator of a facility.

(3) Administration of medication Removing a unit or dose of medication from a previously dispensed, properly labeled container; verifying the medication with the medication order; giving the proper medication in the proper dosage to the proper resident at the proper time by the proper administration route; and recording the time of administration and dosage administered.

(4) Advance Practice Nurse — A person licensed to practice professional nursing in accordance with Texas Occupations Code, Chapter 301, and authorized by the Texas Board of Nursing to practice as an advanced practice nurse.

(5) Applicant — A person applying for a license under Texas Health and Safety Code, Chapter 252.

(6) APA — The Administrative Procedure Act, Texas Government Code, Chapter 2001.

(7) Attendant personnel — All persons who are responsible for direct and non-nursing services to residents of a facility. (Nonattendant personnel are all persons who are not responsible for direct personal services to residents.) Attendant personnel come within the categories of: administration, dietitians, medical records, activities, housekeeping, laundry, and maintenance.

(8) Behavioral emergency — A situation in which severely aggressive, destructive, violent, or self-injurious behavior exhibited by a resident:

(A) poses a substantial risk of imminent probable death of, or substantial bodily harm to, the resident or others;

(B) has not abated in response to attempted preventive de-escalatory or redirection techniques;

(C) is not addressed in a behavior therapy program; and

(D) does not occur during a medical or dental procedure.

(9) Care and treatment — Services required to maximize resident independence, personal choice, participation, health, self-care, psychosocial functioning and provide reasonable safety, all consistent with the preferences of the resident.

(10) 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.

(11) CMS —  Centers of Medicare and Medicaid Services. The federal agency that provides funding and oversight for the Medicare and Medicaid programs. CMS was formerly known as the Health Care Financing Administration (HCFA).

(12 ) Controlled substance A drug, substance, or immediate precursor as defined in the Texas Controlled Substance Act, Health and Safety Code, Chapter 481, as amended, or the Federal Controlled Substance Act of 1970, Public Law 91-513, as amended.

(13) Controlling person of an applicant, license holder, or facility A person who, acting alone or with others, has the ability to directly or indirectly influence or direct the management, expenditure of money, or policies of an applicant or license holder or of a facility owned by an applicant or license holder.

(A) The term includes:

(i) a spouse of the applicant or license holder;

(ii) an officer or director, if the applicant or license holder is a corporation;

(iii) a partner, if the applicant or license holder is a partnership;

(iv) a trustee or trust manager, if the applicant or license holder is a trust;

(v) a person that operates or contracts with others to operate the facility;

(vi) a person who, because of a personal, familial, or other relationship is in a position of actual control or authority over the facility, without regard to whether the person is formally named as an owner, manager, director, officer, provider, consultant, contractor, or employee of the facility; and

(vii) a person who would be a controlling person of an entity described in clauses (i) – (vii) of this subparagraph, if that entity were the applicant or license holder.

(B) The term does not include an employee, lender, secured creditor, or other person who does not exercise formal or actual influence or control over the operation of a facility.

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

(15) Dangerous drug — Any drug as defined in the Texas Dangerous Drug Act, Health and Safety Code, Chapter 483.

(16) Department — DADS.

(17) Designee — A state agency or entity with which DADS contracts to perform specific, identified duties related to the fulfillment of a responsibility prescribed by this chapter.

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

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

(20) Drug (also referred to as medication) — A drug is:

(A) any substance recognized as a drug in the official United States Pharmacopeia, official Homeopathic Pharmacopeia of the United States, or official National Formulary, or any supplement to any of them;

(B) any substance intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man;

(C) any substance (other than food) intended to affect the structure or any function of the human body; and

(D) any substance intended for use as a component of any substance specified in subparagraphs (A)-(C) of this paragraph. It does not include devices or their components, parts, or accessories.

(21) Establishment — A place of business or a place where business is conducted which includes staff, fixtures, and property.

(22) Facility — A facility serving persons with an intellectual disability or related conditions licensed under this chapter as described in §90.2 of this chapter (relating to Scope) and required to be licensed under the Health and Safety Code, Chapter 252, or the entity that operates such a facility; or, in Subchapters C, D, and F of this chapter, a program provider that must comply with those subchapters in accordance with §9.212 of this title (relating to Non-licensed Providers Meeting Licensure Standards).

(23) Governmental unit — A state or a political subdivision of the state, including a county or municipality.

(24) Health care professional — A person licensed, certified, or otherwise authorized to administer health care, for profit or otherwise. The term includes a physician, licensed nurse, physician assistant, podiatrist, dentist, physical therapist, speech therapist, and occupational therapist..

(25) Hearing — A contested case hearing held in accordance with the Administrative Procedure Act, Government Code, Chapter 2001, and the formal hearing procedures in 1 TAC Chapter 357, Subchapter I.

(26) Immediate and serious threat — A situation in which there is a high probability that serious harm or injury to residents could occur at any time or has already occurred and may occur again if residents are not protected effectively from the harm or if the threat is not removed.

(27) Immediate jeopardy to health and safety — A situation in which immediate corrective action is necessary because the facility's noncompliance with one or more requirements has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident receiving care in the facility.

(28) Incident — An unusual or abnormal event or occurrence in, at, or affecting the facility or the residents of the facility.

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

(30) Inspection — Any on-site visit to or survey of a facility by DADS for the purpose of inspection of care, licensing, monitoring, complaint investigation, architectural review, or similar purpose.

(31) IPP — Individual program plan. A plan developed by the interdisciplinary team of a facility resident that identifies the resident's training, treatment, and habilitation needs, and describes programs and services to meet those needs.

(32) Large facility — Facilities with 17 or more resident beds.

(33) Legal guardian — A person who is appointed guardian under §693 of the Probate Code.

(34) Legally authorized representative — A person authorized by law to act on behalf of a person with regard to a matter described in this chapter, and may include a parent, guardian, or managing conservator of a minor, or the guardian of an adult.

(35) License — Approval from DADS to establish or operate a facility.

(36) License holder — A person who holds a license to operate a facility.

(37) Licensed nurse — A licensed vocational nurse, registered nurse, or advanced practice nurse.

(38) Life Safety Code — NFPA 101.

(39) Life safety features — Fire safety components required by the Life Safety Code such as building construction, fire alarm systems, smoke detection systems, interior finishes, sizes and thicknesses of doors, exits, emergency electrical systems, sprinkler systems, etc.

(40) Local authorities — A local health authority, fire marshal, building inspector, etc. who may be authorized by state law, county order, or municipal ordinance to perform certain inspections or certifications.

(41) Local health authority — The physician having local jurisdiction to administer state and local laws or ordinances relating to public health, as described in the Health & Safety Code, §§121.021 - 121.025.

(42) LVN — Licensed vocational nurse. A person licensed to practice vocational nursing in accordance with Texas Occupations Code, Chapter 301.

(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, or delivery of resident services. Management services shall not include contracts solely for maintenance, laundry, or food services.

(44) Metered dose inhaler — A device that delivers a measured amount of medication as a mist that can be inhaled.

(45) NFPA — The National Fire Protection Association. If the term is immediately followed by a number, it is a reference to a publication of NFPA, as referenced in NFPA 101.

(46) NFPA 99 — NFPA 99, Health Care Facilities Code, 2012 Edition. A publication of the NFPA that provides minimum requirements for the installation, testing, maintenance, performance, and safe practices for health care facilities and for material, equipment, and appliances, used for patient care in health care facilities. The Centers for Medicare and Medicaid Services has incorporated NFPA 99, 2012 Edition Except Chapters 7, 8, 12, and 13, by reference as a Condition of Participation in the ICF/IID program for facilities that meet the definition of a health care occupancy. Copies of NFPA 99 may be obtained from NFPA, 1 Batterymarch Park, Quincy, MA 02169.

(47) NFPA 101 — NFPA 101, Life Safety Code, 2012 Edition. A publication of the NFPA that provides minimum requirements, with due regard to function, for the design, operation, and maintenance of buildings and structures for safety to life from fire. The Centers for Medicare and Medicaid Services has incorporated NFPA 101, 2012 Edition, by reference as a Condition of Participation in the ICF/IID program. Copies of NFPA 101 may be obtained from NFPA, 1 Batterymarch Park, Quincy, MA 02169.

(48) Oral medication — Medication administered by way or through the mouth and does not include sublingual or buccal.

(49) Person — An individual, firm, partnership, corporation, association, or joint stock company, and any legal successor of those entities.

(50) Personal hold —

(A) A manual method, except for physical guidance or prompting of brief duration, used to restrict:

(i) free movement or normal functioning of all or a portion of a resident's body; or

(ii) normal access by a resident to a portion of the resident's body.

(B) Physical guidance or prompting of brief duration becomes a restraint if the resident resists the guidance or prompting.

(51) QIDP — Qualified intellectual disability professional. A person who has at least one year of experience working directly with persons with an intellectual disability or related conditions and is one of the following:

(A) a doctor of medicine or osteopathy;

(B) a registered nurse; or

(C) an individual who holds at least bachelor’s degree in one of the following areas:

(i) occupational therapy;

(ii) physical therapy;

(iii) social work

(iv) speech-language pathology or audiology;

(v) recreation or a specialty area such as art, dance, music or physical education;

(vi) dietetics; or

(vii) human services, such as sociology, special education, rehabilitation counseling, or psychology.

(52) Quality-of-care monitor — A registered nurse, pharmacist, or dietitian, employed by DADS, who is trained and experienced in long-term care regulations, standards of practice in long-term care, and evaluation of resident care and functions independently of DADS' Regulatory Services Division.

(53) Registered nurse — A person licensed to practice professional nursing in accordance with Texas Occupations Code, Chapter 301.

(54) Remodeling — The construction, removal, or relocation of walls and partitions, or construction of foundations, floors, or ceiling-roof assemblies, including expanding of safety systems (i.e. sprinkler systems, fire alarm systems), that will change the existing plan and use areas of the facility.

(55) Renovation — The restoration to a former better state by cleaning, repairing, or rebuilding, e.g., routine maintenance, repairs, equipment replacement, painting.

(56) Restraint — A manual method, or a physical or mechanical device, material, or equipment attached or adjacent to the resident's body that the resident cannot remove easily, that restricts freedom of movement or normal access to the resident's body. This term includes a personal hold.

(57) Seclusion — The involuntary separation of a resident away from other residents and the placement of the resident alone in an area from which the resident is prevented from leaving.

(58) Small facilities — Facilities with 16 or fewer resident beds.

(59) Specialized staff — Personnel with expertise in developmental disabilities.

(60) Standards — The minimum conditions, requirements, and criteria with which a facility will have to comply to be licensed under this chapter.

(61) Topical medication — Medication applied to the skin but does not include medication administered in the eyes.

(62) Universal precautions — The use of barrier precautions by facility personnel to prevent direct contact with blood or other body fluids that are visibly contaminated with blood.

(63) Vaccine preventable diseases The diseases included in the most current recommendations of the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention.

(64) Well-recognized church or religious denomination — An organization which has been granted a tax-exempt status as a religious association from the state or federal government.

Subchapter B, Application Procedures

Revision 17-1

 

 

§90.11 Criteria for Licensing

 

(a) A person or governmental unit, acting jointly or severally, must be licensed by DADS to establish, conduct, or maintain a facility in this state.

(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 show that:

(1) the facility meets the standards of the Life Safety Code;

(2) the facility meets the construction standards in Subchapter D of this chapter (relating to Facility Construction); and

(3) the facility meets the standards for operation based upon an on-site survey.

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

(1) the applicant or license holder; and

(2) a controlling person of the applicant or license holder.

(e) DADS issues a license if it finds that the facility and any person described in subsection (d) of this section meets all requirements of this chapter. The license is valid for two years. Each license specifies the maximum allowable number of residents to be cared for at any one time. The number of residents authorized by the license must not be exceeded.

 

§90.12 Building Approval

 

(a) Local fire authority. All applications for licensure must include the written approval of the local fire authority having jurisdiction that the facility and its operation meet local fire ordinances.

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

(1) New facility. The sponsor of a new facility under construction or a previously unlicensed facility must provide to DHS 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 must 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 DHS regarding the status of compliance with local codes, ordinances, or regulations. An application for an increase in capacity for a new facility that was not included in the bed plan approved under the Health and Safety Code §533.062 will not be approved by DHS, as outlined under §90.14 of this title (relating to Increase in Capacity).

(2) Increase in capacity. The license holder must request an application for increase in capacity from DHS. DHS provides the license holder with the application form, and DHS notifies 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. Upon completion of the inspection, the license holder must notify the local health authority and DHS in writing if the facility meets local code requirements. DHS approves 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 DHS prior to the issuance of the license covering the increased capacity after inspection by DHS if standards are met. An application for an increase in capacity that was not included in the bed plan approved under the Health and Safety Code §533.062 will not be approved by DHS, as outlined under §90.14 of this title (relating to Increase in Capacity).

(3) Change of ownership. The applicant for a change of ownership license must provide to DHS a copy of a letter notifying the local health authority of the request for a change of ownership.

(4) Renewal. DHS sends the local health authority a copy of DHS's license renewal notice specifying the expiration date of the facility's current license. The local health authority may provide recommendations to DHS 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 DHS.

 

§90.13 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 the Texas Department of Human Services (DHS). Each application must be completed in accordance with DHS instructions, signed, and notarized. Any changes to the information on an initial, change of ownership, or renewal application must be reported to DHS within 30 calendar days from the effective date of the change. Changes include, but are not limited to:

(1) persons with an ownership or control interest, as defined in 42 Code of Federal Regulations §455.101;

(2) officers, directors, agents, or managing employees;

(3) the corporation, association, or other company responsible for management of the facility;

(4) the facility's administrator; or

(5) the controlling person.

(c) General information required. An applicant must file with DHS an application which contains:

(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. The names and addresses of any persons or organizations listed as owner of record in the real estate, including the buildings and grounds must be disclosed to DHS;

(2) a certificate of good standing issued by the Comptroller of Public Accounts; and

(3) for initial applications and change of ownership only, the certificate of incorporation issued by the secretary of state for a corporation or a copy of the partnership agreement for a partnership.

 

§90.14 Increase in Capacity

 

(a) During the license term, a license holder may not increase capacity without approval from the Texas Department of Human Services (DHS). The license holder must submit to DHS a complete application for increase in capacity and the fee required in §90.19 of this title (relating to License Fees).

(b) An application for an increase in beds that was not included in the plan approved under §533.062 of the Health and Safety Code, Plan on Long Term Care for Persons with Mental Retardation, will not be approved by DHS.

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

 

§90.15 Renewal Procedures and Qualifications

 

(a) Each license issued under this chapter must be renewed every two years. Each license expires two years from the date issued. A license issued under this chapter is not automatically renewed.

(b) Each license holder must, at least 45 days before the expiration of the current license, submit an application for renewal with DADS. DADS considers that an individual has submitted a timely and sufficient application for the renewal of a license if the license holder:

(1) submits a complete application to DADS and DADS receives the complete application at least 45 days before the current license expires;

(2) submits an incomplete application to DADS with a letter explaining the circumstances which prevented the inclusion of the missing information, and DADS receives the incomplete application and letter at least 45 days before the current license expires; or

(3) submits a complete or incomplete application with a letter explaining the circumstances which 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 the late renewal fee established in §90.19(a)(4) of this subchapter (relating to License Fees) in addition to the basic renewal fee.

(c) If the application is postmarked by the submission deadline, the application will be considered to be timely if received by DADS’ Regulatory Services Licensing and Credentialing Section within 15 days after the postmark. If the application is postmarked by the submission deadline, the application will be considered to be timely if received in DADS’ Regulatory Services Licensing and Credentialing Section, within 30 days after the postmark and the license holder proves to the satisfaction of the department that the delay was due to the fault of the United States Postal Service. It is the responsibility of the license holder to ensure that his application is timely received by DADS.

(d) The appropriate license fee must be paid upon submission of the renewal application.

(e) The renewal of a license may be denied for the same reasons an original application for a license may be denied. See §90.17 of this subchapter (relating to Criteria for Denying a License or Renewal of a License).

 

§90.16 Change of Ownership

 

(a) A license holder may not transfer its license. If a change of ownership occurs, the license holder's license becomes invalid on the date of the change of ownership. The prospective new license holder must obtain a license in accordance with subsection (b) of this section.

(b) A prospective new license holder must submit to DADS:

(1) a complete application for a license under §90.11 of this subchapter (relating to Criteria for Licensing) or an incomplete application with a letter explaining the circumstances that prevented the inclusion of the missing information;

(2) the application fee, in accordance with §90.19 of this subchapter (relating to License Fees); and

(3) signed, written notice from the facility's existing license holder of intent to transfer operation of the facility to the applicant beginning on a date specified by the applicant, unless waived in accordance with subsection (d) of this section.

(c) To avoid a facility operating without a license, a prospective license holder must submit all items in subsection (b) of this section by U.S. mail postmarked at least 30 days before the anticipated date of the change of ownership and received in DADS Licensing and Credentialing Section, Regulatory Services Division within 15 days after the date of the postmark.

(d) The notice required by subsection (b)(3) of this section may be waived by DADS if DADS determines that the prospective license holder presented evidence showing that circumstances prevented the submission of the notice and that not waiving the notice would create a threat to resident welfare or health and safety.

(e) 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 in the former license holder changed, when compared to the new license holder; or
  2. every owner with a disclosable interest in the new license holder had a disclosable interest in the former license holder.

(f) 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.

(g) The effective date of the license is the same date as the effective date of the change of ownership and cannot precede the date the application was received by DADS Licensing and Credentialing Section, Regulatory Services Division.

(h) If a license holder changes its name but does not undergo a change of ownership, the license holder must notify DADS and submit documentation evidencing a legal name change. On receipt of the notice and documentation, DADS reissues the current license in the license holder's new name.

(i) 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.

 

§90.17 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 §90.11(d) 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 §90.42 of this chapter (relating to Standards for Facilities Serving Persons with Mental Retardation or Related Conditions), including:

(A) noncompliance that poses a serious threat to health and safety, as described in Appendix Q of the State Operations Manual, "Guidelines for Determining Immediate and Serious Threat to Patient Health and Safety;" or

(B) a failure to maintain compliance on a continuous basis, including decertification, contract termination, denial of certification, or license revocation;

(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) provides the following false or fraudulent information:

(A) knowingly 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 §90.19 of this subchapter (relating to License Fees);

(B) reimbursement of emergency assistance funds within one year after the date on which the funds were received by the trustee in accordance with the provisions of §90.238(e) of this chapter (relating to Involuntary Appointment of a Trustee);

(C) administrative penalties within 60 days after the order assessing the penalties in accordance with §90.236 of this chapter (relating to Administrative Penalties); or

(D) franchise taxes;

(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 cancelled under the Medicare or Medicaid program in any state;

(B) federal or state long term care facility sanctions or penalties, including vendor holds, monetary penalties, downgrading the status of a facility license, proposals to decertify, directed plans of correction, or the denial of payment for new Medicaid admissions;

(C) unsatisfied final judgments;

(D) eviction involving any property or space used as a facility in any state; or

(E) suspension of a license to operate a health care 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 §90.11(d) 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 §90.11(d) 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 for a new license owns multiple facilities, DADS examines the overall record of compliance in all of the applicant’s facilities. Denial of a new license will not preclude the renewal of licenses for the applicant’s other facilities with a history of compliance with licensing regulations.

(f) DADS does not approve as meeting licensing standards new beds or the expansion of a facility serving persons with mental retardation or related conditions that participates in the medical assistance program under Title XIX of the Social Security Act, as provided by the Texas Health and Safety Code, §533.062, unless the new beds or the expansion was included in the plan approved by the Health and Human Services Commission (HHSC) in accordance with Texas Health and Safety Code, §533.061.

(g) If DADS denies an application for a new license, the applicant may request an administrative hearing. If DADS refuses to issue a renewal of a license, the licensee may request an informal reconsideration, as specified in §90.18 of this subchapter (relating to Informal Reconsideration) and an administrative hearing. An administrative hearing is held under HHSC's rules in 1 TAC Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act).

 

§90.18 Informal Reconsideration

 

(a) Before the institution of proceedings to revoke or suspend a license or deny an application for the renewal of a license, the Texas Department of Human Services (DHS) 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 Long Term Care-Regulatory a written request for an informal review. The request must:

(A) be postmarked within ten days of the date of DHS's notice and be received in the state office of the director of Long Term Care-Regulatory within 10 days of the date of the postmark; and

(B) contain specific documentation refuting DHS's allegations.

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

 

§90.19 License Fees

 

(a) Basic fees.

(1) Initial and renewal license. The license fee is $150 plus $5.00 for each unit of capacity or bed space for which a license is sought. The fee must be paid with each initial and renewal of license application.

(2) Increase in bed space. An approved increase in bed space is subject to an additional fee of $5.00 for each unit of capacity or bed space.

(3) Change of administrator. A facility that hires a new administrator must notify DADS in writing not later than the 30th day after the date on which the change becomes effective and pay a $20 fee to DADS.

(4) Late renewal fee. A license holder that submits an application for renewal during the 45-day period ending on the date the current license expires must pay a late renewal fee in an amount equal to one-half of the renewal fee described in paragraph (1) of this subsection.

(b) Emergency Assistance Fee.

(1) In addition to the licensing and renewal fee collected under Texas Health and Safety Code, §252.034, DADS may collect an annual fee to be used to make emergency assistance money available to a facility licensed under this chapter.

(2) The fee collected under this section shall be in the amount prescribed by Texas Health and Safety Code, §252.097(b), and shall be deposited to the credit of the nursing and convalescent home trust fund established under the Health and Safety Code, §252.096.

(3) DADS may disburse money to a trustee for a facility licensed under this chapter to alleviate an immediate threat to the health or safety of the facility's residents. Payments under this section may include payments described by Texas Health and Safety Code, §252.096(b).

(4) A court may order DADS to disburse emergency assistance money to a trustee for a facility licensed under this chapter, if the court makes the findings provided by Texas Health and Safety Code, §252.096(c).

(c) Method of Payment. Payment of fees for initial licenses, changes of ownership, increases in bed size, and license renewals must be by check or money order made payable to DADS. All fees are non-refundable except as provided by Chapter 2005 of the Texas Government Code.

(d) Quality Assurance Fee. A quality assurance fee is imposed on each facility licensed under Texas Health and Safety Code, Chapter 252, each intermediate care facility for persons with mental retardation owned by a community mental retardation center, and each facility owned by DADS. The fee is payable monthly and is in addition to other fees imposed under this chapter. The amount of the fee, method of payment, and penalties for noncompliance are stated in 1 TAC Chapter 352.

 

§90.20 Plan Review Fees

 

(a) The Texas Department of Human Services (DHS) charges a fee to review plans for new buildings, additions, conversion of buildings not licensed by DHS, or remodeling of existing licensed facilities.

(b) The fee schedule is as follows.

(1) New small prompt/slow facility (4 to 16 beds based on residential board and care occupancy of the Life Safety Code, Chapter 21-2, prompt or slow evacuation capability):

(A) single story – $900;

(B) multiple story – $1,100; and

(C) additions or remodeling – 2% of construction cost with a $350 minimum fee and a maximum of 50% of the plan review fee for a new facility of the same type.

(2) New large prompt/slow facility (17 or more beds based on residential board and care occupancy of the Life Safety Code, Chapter 21-3, prompt or slow evacuation capability):

(A) single story:

(i) facilities with 17-80 beds – $1,100;

(ii) facilities with 81-120 beds – $1,650; and

(iii) facilities with 121+ beds – $14 per bed.

(B) multiple story:

(i) facilities with 17-80 beds – $1,650;

(ii) facilities with 81-120 beds – $2,150; and

(iii) facilities with 121+ beds – $18 per bed.

(C) additions or remodeling – 2% of construction cost with a $400 minimum fee and a maximum of 50% of the plan review fee for a new facility of the same type.

(3) New small impractical facility (4 to 16 beds based on residential board and care occupancy of the Life Safety Code, Chapter 21-2, impractical evacuation capability):

(A) single story – $1,100;

(B) multiple story – $1,650;

(C) additions or remodeling – 2% of construction cost with a $350 minimum fee and a maximum of 50% of the plan review fee for a new facility of the same type.

(4) New large impractical facility (17 or more beds based on the health care occupancy of the Life Safety Code, Chapter 12):

(A) single story:

(i) facilities with 17-80 beds – $1,600;

(ii) facilities with 81-120 beds – $2,150;

(iii) facilities with 121+ beds – $18 per bed.

(B) multiple story:

(i) facilities with 17-80 beds – $2,100;

(ii) facilities with 81-120 beds – $2,650;

(iii) facilities with 121+ beds – $22 per bed.

(C) additions or remodeling – 2% of construction cost with $500 minimum fee and a maximum of 50% of the plan review fee for a new facility of the same type.

 

§90.21 Time Periods for Processing License Applications

 

(a) The Texas Department of Human Services (DHS) will process only applications received within 60 days prior to 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 and reports 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 the Licensing Section of the state office of Long Term Care-Regulatory, Texas Department of Human Services, within 15 days of the postmark.

(d) Long Term Care-Regulatory will notify facilities within 30 days of receipt of the application if any of the following applications are incomplete: initial application; change of ownership; renewal; and increase in capacity.

(e) A license will be issued or denied within 30 days of the receipt of a complete application or within 30 days prior to the expiration date of the license. However, DHS may delay 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 prior to the expiration date of the license. The issuance of the license constitutes DHS's official written notice to the facility of the acceptance and filing of the application.

(f) Reimbursement of fees.

(1) In the event the application is not processed in the time periods as stated, 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. Good cause for exceeding the period established is considered to exist if:

(A) the number of applications to be processed exceeds by 15% or more the number processed in the same calendar quarter of the preceding year;

(B) another public or private entity used in the application process caused the delay; or

(C) other conditions existed giving good cause for exceeding the established periods.

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

 

§90.22 Relocation

 

(a) A license holder may not relocate a facility to another location without approval from Texas Department of Human Services (DHS). The license holder must submit a complete application and the fee required under §90.19 of this title (relating to License Fees) to DHS before the relocation.

(b) Residents may not be relocated until the new building has been inspected and approved as meeting the standards of the Life Safety Code as applicable to intermediate care facilities serving persons with mental retardation or a related condition.

(c) Following Life Safety Code approval by DHS, the license holder must notify DHS of the date residents 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 the license will be the date all residents 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.

(f) This section applies to relocation of a currently licensed facility. See §90.14 of this title (relating to Increase in Capacity) for regulations governing capacity increases.

Subchapter C, Standards for Licensure

Revision 18-1

 

 

§90.42 Standards for Facilities Serving Individuals with Intellectual Disability or Related Conditions

 

(a) Purpose. The purpose of this section is to promote the public health, safety, and welfare by providing for the development, establishment, and enforcement of standards:

(1) for the habilitation of individuals based on an active treatment program in facilities governed by this chapter; and

(2) for the establishment, construction, maintenance, and operation of such facilities that view an intellectual disability and related conditions within the context of a developmental model in accordance with the principle of normalization.

(b) Philosophy. A facility regulated by the standards in this section is known as an intermediate care facility for individuals with an intellectual disability or related conditions (ICF/IID). Individuals in these facilities have the same civil rights, equal liberties, and due process of law as other individuals, plus the right to receive active treatment and habilitation. Facilities shall provide and promote services that enhance the development of such individuals, maximize their achievement through an interdisciplinary approach based on developmental principles, and create an environment, to the extent possible, that is normalized and normalizing.

(c) Standards. Each ICF/IID must comply with regulations promulgated by the United States Department of Health and Human Services in Title 42, Code of Federal Regulations (CFR), Part 483, Subpart I, §§483.400-483.480. Additionally, DADS adopts by reference the federal regulations governing conditions of participation for the ICF/IID program as specified in 42 CFR, Part 483, Subpart I, §§483.410, 483.420, 483.430, 483.440, 483.450, 483.460, 483.470, and 483.480 as licensing standards.

(d) Precertification training conference for new providers of service. Each new provider must attend the precertification/prelicensure training conference prior to licensing by DADS. The purpose of the training is to assure that providers of services are familiar with the licensing requirements and to facilitate the delivery of quality services to residents in facilities serving persons with intellectual disability or related conditions.

(1) A new provider is an entity which has not had at least one year of administering services in a facility serving persons with intellectual disability or related conditions in Texas. All new providers must attend a precertification training conference prior to the life safety code survey.

(2) Each new provider must designate at least one individual who will be involved with the direct management of the facility to attend the training conference prior to a health survey being scheduled.

(3) Each new provider will be given a training schedule. DADS will schedule training sessions, and the date, time, and location of the training will be indicated on the schedule.

(e) Additional requirements.

(1) A facility must develop and implement policies and procedures for reporting abuse, neglect, and exploitation to the Department of Family and Protective Services (DFPS) and reporting other incidents to DADS.

(2) In the area of cardiopulmonary resuscitation (CPR), the following apply:

(A) At least one staff person per shift and on duty must be trained by a CPR instructor certified by an organization such as the American Heart Association or the Red Cross.

(B) The facility must ensure that staff members maintain their certification as recommended by such organizations.

(3) In the area of behavior management, seclusion of residents may not be used.

(4) In the area of physical restraints, the following apply:

(A) A facility must not use restraint:

(i) in a manner that:

(I) obstructs the resident's airway, including the placement of anything in, on, or over the resident's mouth or nose;

(II) impairs the resident's breathing by putting pressure on the resident's torso;

(III) interferes with the resident's ability to communicate;

(IV) extends muscle groups away from each other;

(V) uses hyperextension of joints; or

(VI) uses pressure points or pain;

(ii) for disciplinary purposes, that is, as retaliation or retribution;

(iii) for the convenience of staff or other residents; or

(iv) as a substitute for effective treatment or habilitation.

(B) A facility may use restraint:

(i) in a behavioral emergency;

(ii) as an intervention in a behavior therapy program that addresses inappropriate behavior exhibited voluntarily by a resident;

(iii) during a medical or dental procedure if necessary to protect the resident or others and as a follow-up after a medical or dental procedure or following an injury to promote the healing of wounds;

(iv) to protect the resident from involuntary self-injury; and

(v) to provide postural support to the resident or to assist the resident in obtaining and maintaining normative bodily functioning.

(C) In order to decrease the frequency of the use of restraint and to minimize the risk of harm to a resident, a facility must ensure that the interdisciplinary team:

(i) with the participation of a physician, or a physician assistant or an advanced practice nurse acting within the scope of his or her practice, identifies:

(I) the resident's known physical or medical conditions that might constitute a risk to the resident during the use of restraint;

(II) the resident's ability to communicate; and

(III) other factors that must be taken into account if the use of restraint is considered, including the resident's:

(-a-) cognitive functioning level;

(-b-) height;

(-c-) weight;

(-d-) emotional condition (including whether the resident has a history of having been physically or sexually abused); and

(-e-) age;

(ii) documents the conditions and factors identified in accordance with clause (i) of this subparagraph, and, as applicable, limitations on specific restraint techniques or mechanical restraint devices in the resident's record; and

(iii) reviews and updates with a physician, physician assistant, or licensed nurse, at least annually or when a condition or factor documented in accordance with clause (ii) of this subparagraph changes significantly, information in the resident's record related to the identified condition, factor, or limitation.

(D) If a facility restrains a resident as provided in subparagraph (B) of this paragraph, the facility must:

(i) take into account the conditions, factors, and limitations on specific restraint techniques or mechanical restraint devices documented in accordance with subparagraph (C)(ii) and (iii) of this paragraph;

(ii) use the minimal amount of force or pressure that is reasonable and necessary to ensure the safety of the resident and others;

(iii) safeguard the resident's dignity, privacy, and well-being; and

(iv) not secure the resident to a stationary object while the resident is in a standing position.

(E) If a facility uses restraint in a circumstance described in subparagraph (B)(i) or (ii) of this paragraph:

(i) the facility may use only a personal hold in which the resident's limbs are held close to the body to limit or prevent movement and that does not violate the provisions of subparagraph (A)(i) of this paragraph; and

(ii) if a resident rolls into a prone or supine position during restraint, the facility must transition the resident to a side, sitting, or standing position as soon as possible. The facility may only use a prone or supine hold:

(I) as a transitional hold, and only for the shortest period of time necessary to ensure the protection of the resident or others;

(II) as a last resort, when other less restrictive interventions have proven to be ineffective; and

(III) except in a small facility, when an observer who is trained to identify risks associated with positional, compression, or restraint asphyxiation, and with prone and supine holds is ensuring that the resident's breathing is not impaired.

(F) A facility must release a resident from restraint:

(i) as soon as the resident no longer poses a risk of imminent physical harm to the resident or others; or

(ii) if the resident in restraint experiences a medical emergency, as soon as possible as indicated by the medical emergency.

(G) If a facility restrains a resident as provided in subparagraph (B)(i) of this paragraph, the facility must obtain a written order authorizing the restraint from a health care professional acting within his or her scope of practice by the end of the first business day after the use of restraint.

(H) A facility must ensure that each resident and the resident's legally authorized representative are notified of the DADS rules and the facility's policies related to restraint and seclusion.

(I) A facility may adopt policies that allow less use of restraint than allowed by the rules of this chapter.

(5) In the area of pharmacy services, the following applies.

(A) All pharmacy services must comply with the Texas State Board of Pharmacy requirements, the Texas Pharmacy Act, and rules adopted thereunder, the Texas Controlled Substances Act, and Texas Health and Safety Code, Chapter 483 (relating to Dangerous Drugs).

(B) All medications must be ordered orally or in writing by a health care professional acting within the scope of his or her practice. Oral orders may be taken only by a licensed nurse, a pharmacist, physician assistant, or physician, and must be immediately transcribed and signed by the individual taking the order. Oral orders must be signed by the health care professional who ordered the medication within seven working days after issuing the order.

(C) The facility, with input from the consultant pharmacist and a health care professional acting within the scope of his or her practice, must develop and implement procedures regarding automatic stop orders for medications. These procedures must be utilized when the order for a medication does not specify the number of doses to be given or the time for discontinuance or re-order.

(6) Specialized nutrition support (delivery of parenteral nutrients and enteral feedings by nasogastric, gastrostomy, or jejunostomy tubes) must be given:

(A) by a health care professional acting within the scope of his or her practice or by a person to whom a health care professional has properly delegated performance of the task; and

(B) in accordance with an order issued by a health care professional acting within the scope of his or her practice.

(7) In the area of self-administration of medication and emergency medication kits, the following apply.

(A) Residents who have demonstrated the competency for self-administration of medications must have access to and maintain their own medications. They must have an individual storage space that permits them to store their medications under lock and key.

(B) Residents may participate in a self-administration of medication training program if the interdisciplinary team determines that self-administration of medications is an appropriate objective. Residents participating in a self-administration of medication training program must have training in coordination with and as part of the resident's total active treatment program. The resident's training plan must be evaluated as necessary by a licensed nurse. The supervision and implementation of a self-administration of medication training program is administration of medication and may be conducted by unlicensed personnel in accordance with §90.43(a)(1), (3) and (4) of this chapter (relating to Administration of Medication).

(C) A facility may maintain a supply of controlled substances in an emergency medication kit for a resident's emergency medication needs, as outlined under §90.324 and §90.325 of this chapter (relating to Emergency Medication Kit and Controlled Substances).

(8) In the area of communicable diseases, the facility must have written policies and procedures for the control of communicable diseases in employees and residents. When any reportable communicable disease becomes evident, the facility must report in accordance with Communicable Disease and Prevention Act, Texas Health and Safety Code, Chapter 81, or as specified in 25 TAC §§97.1-97.13 (relating to Control of Communicable Diseases) and 25 TAC §§97.131-97.146 (relating to Sexually Transmitted Diseases Including Acquired Immunodeficiency Syndrome (AIDS) and Human Immunodeficiency Virus (HIV)) and in the publication titled, "Reportable Diseases in Texas," Publication 6-101a (Revised 1987). The local health authority should be contacted to assist the facility in determining the transmissibility of the disease and, in the case of employees, the ability of the employee to continue performing his duties. The facility must have written policies and procedures for infection control, which include implementation of universal precautions as recommended by the Centers for Disease Control and Prevention (CDC).

(9) In the area of water activities, the facility must assure the safety of all individuals who participate in facility-sponsored events. For the purpose of this section, a water activity is defined as an activity which occurs in or on water that is knee deep or deeper on the majority of individuals participating in the event. To assure the safety of all individuals who participate, the requirements in subparagraphs (A)-(F) of this paragraph apply.

(A) The facility must develop a policy statement regarding the water sites utilized by the facility. Water sites include, but are not limited to, lakes, amusement parks, and pools.

(B) A minimum of one staff person with demonstrated proficiency in cardiopulmonary resuscitation (CPR) must be on duty and at the site when individuals are involved in water activities.

(C) A minimum of one person with demonstrated proficiency in water life saving skills must be on duty and at the site when activities take place in or on water that is deep enough to require swimming for life saving retrieval. This person must maintain supervision of the activity for its duration.

(D) A sufficient number of staff or a combination of staff and volunteers must be available to meet the safety requirements of the group and/or specific individuals.

(E) Each individual's program plan must address each person's needs for safety when participating in water activities including, but not necessarily limited to, medical conditions; physical disabilities and/or behavioral needs which could pose a threat to safety; the ability to follow directions and instructions pertaining to water safety; the ability to swim independently; and, when called for, special precautions.

(F) If the interdisciplinary team recommends the use of a flotation device as a precaution for any individual to engage in water activities, it must be identified and precautions outlined in the individual program plan. The device must be approved by the United States Coast Guard or be a specialized therapy flotation device utilized in the individual's therapy program.

(10) In the area of communication, a facility may not prohibit a resident or employee from communicating in the person's native language with another resident or employee for the purpose of acquiring or providing care, training, or treatment.

(11) In the area of physical exams, a facility shall ensure that a resident is given at least one physical exam on a yearly basis by:

(A) a person licensed to practice medicine in accordance with Texas Occupations Code, Chapter 155 (relating to License to Practice Medicine);

(B) a person licensed as a physician assistant in accordance with Texas Occupations Code, Chapter 204 (relating to Physician Assistants); or

(C) a person licensed to practice professional nursing in accordance with Texas Occupations Code, Chapter 301 (relating to Nurses), and authorized by the Texas Board of Nursing to practice as an advanced practice nurse.

 

§90.43 Administration of Medication

 

(a) Administration of medication to a resident of a facility may be performed only by:

(1) a person who holds a license under state law that authorizes the person to administer medication;

(2) in a facility, as defined in §95.101 of this title (relating to Introduction):

(A) a person who holds a permit issued under Texas Health and Safety Code §242.610 and acts under the authority of a person described in paragraph (1) of this subsection; or

(B) a person who is exempt from licensure or permit requirements in accordance with Texas Health and Safety Code §242.607;

(3) a person to whom a registered nurse has delegated the administration of medication under Chapter 224 or 225 of Title 22 (relating to Delegation of Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel for Clients with Acute Conditions or in Acute Environments and RN Delegation to Unlicensed Personnel and Tasks Not Requiring Delegation in Independent Living Environments for Clients with Stable and Predictable Conditions); or

(4) in a facility with a licensed or certified capacity of less than 14 residents, an unlicensed person who administers medication in accordance Texas Human Resource Code Chapter 161, Subchapter D-1.

(b) A person may perform administration of medication in accordance with subsection (a)(4) of this section without the requirement that a registered nurse delegate or oversee each administration if:

(1) the medication is:

(A) an oral medication;

(B) a topical medication; or

(C) a metered dose inhaler;

(2) the medication is administered to the resident for a stable or predictable condition;

(3) the resident has been personally assessed by a registered nurse initially and in response to significant changes in the resident's health status, and the registered nurse has determined that the resident's health status permits the administration of medication by an unlicensed person; and

(4) the unlicensed person has been:

(A) trained by a registered nurse or licensed vocational nurse under the direction of a registered nurse regarding proper administration of medication; or

(B) determined to be competent by a registered nurse or licensed vocational nurse under the direction of a registered nurse regarding proper administration of medication, including through a demonstration of proper technique by the unlicensed person.

(c) A registered nurse or a licensed vocational nurse under the supervision of a registered nurse must review the administration of medication to a resident by a person described in subsection (a)(4) of this section at least annually and after any significant change in the resident's condition.

 

§90.44 Trauma-Informed Care Training

 

A facility must ensure that an employee who is hired by a facility on or after May 1, 2016, and whose duties will require the employee to work directly with a resident completes trauma-informed care training provided by DADS before the employee works directly with a resident. For purposes of this section, "to work directly with a resident" means to serve on a resident's interdisciplinary team or otherwise work with a resident to implement the resident's individual program plan.

 

§90.45 Wheelchair Self-Release Seat Belts

 

a) For the purposes of this section, a "self-release seat belt" is a seat belt on a resident's wheelchair that the resident demonstrates the ability to fasten and release without assistance. A self-release seat belt is not a restraint.

(b) Except as provided in subsection (c) of this section, a facility must allow a resident to use a self-release seat belt if:

(1) the resident or the resident's legally authorized representative requests that the resident use a self-release seat belt;

(2) the resident consistently demonstrates the ability to fasten and release the self-release seat belt without assistance;

(3) the use of the self-release seat belt is documented in and complies with the resident's individual program plan; and

(4) the facility receives written authorization, signed by the resident or the resident's legally authorized representative, for the resident to use the self-release seat belt.

(c) A facility that advertises as a restraint-free facility is not required to allow a resident to use a self-release seat belt if the facility:

(1) provides a written statement to all residents that the facility is restraint-free and is not required to allow a resident to use a self-release seat belt; and

(2) makes reasonable efforts to accommodate the concerns of a resident who requests a self-release seat belt in accordance with subsection (b) of this section.

(d) A facility is not required to continue to allow a resident to use a self-release seat belt in accordance with subsection (b) of this section if:

(1) the resident cannot consistently demonstrate the ability to fasten and release the seat belt without assistance;

(2) the use of the self-release seat belt does not comply with the resident's individual program plan; or

(3) the resident or the resident's legally authorized representative revokes in writing the authorization for the resident to use the self-release seat belt.

 

§90.50 Emergency Preparedness and Response

 

(a) Definitions. In this section:

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

(A) may interfere with normal activities of a facility or its residents;

(B) may cause:

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

(ii) 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 resident such as cardiac arrest, obstructed airway, cerebrovascular accident;

(2) "plan" means a facility's emergency preparedness and response plan; and

(3) "receiving facility" means a facility that has agreed to receive the residents of another facility who are evacuated due to an emergency situation.

(b) Administration. A facility must:

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

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

(3) evaluate the plan to determine if information in the plan needs to change:

(A) within 30 days after an emergency situation;

(B) due to remodeling or making an addition to the facility; and

(C) at least annually;

(4) revise the plan within 30 days after information in the plan changes; and

(5) maintain documentation of compliance with this section.

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

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

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

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

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

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

(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, including during off hours, weekends, and holidays; 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 an emergency situation;

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

(C) includes procedures for maintaining a current list of telephone numbers for potential places to which to evacuate, such as hotels, motels, and other facilities licensed under this chapter or certified to participate in the Medicaid ICF/MR Program;

(D) includes procedures for maintaining a current list of telephone numbers for the facility's staff, by residence or unit, that identifies the facility's EPC and administrative staff;

(E) identifies the location of the lists described in paragraphs (B)-(D) of this paragraph, which must be a place where facility staff can obtain the information quickly;

(F) includes procedures to notify:

(i) facility staff about an emergency situation;

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

(iii) residents, legally authorized representatives, and other persons about an impending or actual evacuation;

(G) provides a method for persons to obtain resident information during an emergency situation; and

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

(i) facility staff involved in an emergency situation;

(ii) a receiving facility, if applicable; and

(iii) the driver of a vehicle transporting residents, medications, records, food, water, equipment, or supplies during an evacuation.

(4) Sheltering Arrangements. A facility's plan must contain a section for sheltering arrangements that:

(A) includes procedures for implementing a decision to shelter-in-place that include:

(i) having access to medications, records, food, water, equipment and supplies; and

(ii) sheltering facility staff involved in responding to an emergency situation, and their family members, if necessary;

(B) includes procedures for notifying the DADS regional office for the area in which the facility is located by telephone immediately after a decision to shelter-in-place has been made; and

(C) includes procedures for accommodating evacuated residents, if the facility serves as a receiving facility for a facility that has evacuated.

(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 implementing a decision to evacuate residents to a receiving facility in an emergency situation, if applicable;

(C) identifies evacuation destinations and routes and includes a map that shows the destinations and routes;

(D) includes a current copy of the agreement with a receiving facility, if the evacuation destinations identified in accordance with subparagraph (C) of this paragraph include a receiving facility that is not owned by the same entity as the facility;

(E) includes procedures for:

(i) ensuring that facility staff accompany evacuating residents;

(ii) ensuring that residents and facility staff present in the building have been evacuated;

(iii) accounting for residents after they have been evacuated;

(iv) accounting for residents absent from the facility at the time of the evacuation;

(v) releasing resident information in an emergency situation to promote continuity of a resident's care;

(vi) contacting the local EMC to find out if it is safe to return to the geographical area; and

(vii) 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;

(G) includes procedures for notifying the DADS regional office for the area in which the facility is located by telephone immediately after a decision to evacuate is made; and

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

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

(A) provides for a sufficient number of facility-owned vehicles to evacuate all residents and for alternate transportation arrangements if the facility-owned vehicles are not available;

(B) includes procedures for safely transporting residents, facility staff involved in an evacuation and, if necessary, their family members, and the facility's and residents' pets during an evacuation; and

(C) includes procedures to safely transport and have timely access to oxygen, medications, records, food, water, equipment, and supplies needed during an evacuation.

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

(A) identifies all of the facility's residents with special medical needs; and

(B) ensures that the needs of those residents are met during an emergency situation.

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

(A) includes procedures for maintaining accurate and detailed checklists of medications, records, food, water, equipment and supplies needed during an emergency situation;

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

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

(e) Training. A facility must:

(1) inform a facility staff member of the staff member's responsibilities under the plan within five working days after assuming job duties;

(2) re-train a facility staff member 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, annual 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) for a large facility, include the provisions described in the Operating Features section of NFPA 101, Chapter 18 (for new healthcare occupancies) and Chapter 19 (for existing healthcare occupancies) concerning:

(A) use of alarms;

(B) transmission of alarm to fire department;

(C) emergency phone call to fire department;

(D) response to alarms;

(E) isolation of fire;

(F) evacuation of immediate area;

(G) evacuation of smoke compartment;

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

(I) extinguishment of fire;

(2) for a small facility, include the provisions described in the Operating Features section of NFPA 101, Chapter 32 (for new residential board and care occupancies) and Chapter 33 (for existing residential board and care occupancies) concerning:

(A) use of alarms;

(B) staff response in the event of a fire;

(C) fire protection procedures for a resident;

(D) actions to take if the primary escape route is blocked; and

(E) specification of an assembly point after a resident evacuates from the facility; and

(3) include procedures for:

(A) rehearsing the fire safety plan at least once per quarter on each work shift;

(B) evacuating residents as follows:

(i) for a small facility that has a prompt or slow evacuation capability, during every fire drill; or

(ii) for a large facility or facility with an impractical evacuation capability, during at least one fire drill each year on each work shift;

(C) completing the form titled "DADS Fire Drill Report" or a form containing, at a minimum, the information on the DADS form; and

(D)providing residents and facility staff with experience in egressing through all exits and means of escape.

(g) Reporting Fires. A facility must report a fire at the facility to DADS as follows:

(1) by calling 1-800-458-9858 within 24 hours after the fire; and

(2) by submitting a completed DADS form titled "Fire Report for Long Term Care Facilities" within 15 days after the fire.

Subchapter D, General Requirements for Facility Constructions

Revision 17-1

 

§90.60 Construction and Initial Survey of Completed Construction

 

(a) Construction phase.

(1) The Texas Department of Human Services (DHS), Architectural Section in Austin, Texas, must be notified in writing of construction start.

(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 State 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 State Board of Registration for 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, but not limited to, 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. DHS 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; doors (numbered) 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; submit two reduced plans for file record. See §90.80(c)(3) of this title (relating to Construction and Initial Survey of Completed Construction).

(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, but not limited to, 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 equipment types, sizes, and locations.

(12) Sprinkler system documents must include plans and details of NFPA designed systems; plans and details of partial systems provided only for hazardous areas; 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 wastewater authority having jurisdiction. If no local authority, then the plans will be reviewed by DHS.

(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 DHS prior to 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 a representative of the architectural section of DHS and found acceptable, this information will be conveyed to the licensing officer 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. Note that the building, grades, drives, parking and grounds must be essentially 100% complete at the time of this initial survey visit for occupancy approval and licensing, including basic furnishings and operational needs.

(3) A copy of the following documents must be available to DHS's 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 agent (Form FML-009 of the Texas State Fire Marshal);

(C) documentation of materials used in the building which are required to have a specific limited fire or flame spread rating, including, but not limited to, special wall finishes or floor coverings, flame retardant curtains (including cubicle curtains), and rated ceilings. This must include a signed letter from the installer verifying that the material installed is the same material named in the laboratory test document;

(D) approval of the completed sprinkler system installation by the designing engineer. A copy of the material list and test certification must be available;

(E) service contracts for maintenance and testing of systems, including, but not limited to, alarm systems and sprinkler systems;

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

(G) a written statement from an architect/engineer stating that he certifies that the building was constructed to meet NFPA 101, Life Safety Code, 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) Non-approval 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 DHS that the facility not yet be licensed and approved for occupancy. Such basic items may include the following:

(A) construction which does not meet minimum code or licensure standards for basic requirements such as corridor widths being less than eight feet clear width, ceilings installed at less than the minimum seven feet six inches height, resident bedroom dimensions less than required width, and other such features which would disrupt or otherwise adversely affect the residents 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, but not limited to, fire alarm systems, emergency power and lighting, and sprinkler systems;

(D) required exits are not all usable according to Life Safety Code requirements;

(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 which the surveyor, as the authority having jurisdiction, encounters which in his/her judgment would preclude safe and normal occupancy by residents on that day.

(2) If the surveyor encounters deficiencies that do not affect the health and safety of the residents, licensure may be recommended based on an approved written plan of correction by the facility's administrator.

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

 

§90.61 Introduction, Application, and General Requirements for Facilities Serving Persons with Intellectual Disability or Related Conditions

 

(a) Scope. The requirements of this section are applicable to both new and existing facilities unless stated otherwise.

(b) Purpose.

(1) The concept of requirements for fire safety with regard to the residents is based on evacuation capability as published in NFPA 101. These standards are written with the premise that the residents will be capable of self-evacuation without continuous staff assistance. Residents that are not normally capable of self-evacuation nor capable of negotiating stairs unassisted shall not be housed above or below the floor of exit discharge unless the facility meets the construction requirements of NFPA 101, Chapter 18 New Health Care Occupancies or Chapter 19 Existing Health Care Occupancies for large facilities, or the "impractical" requirements for small facilities as found in NFPA 101, Chapter 32 New Residential Board and Care Occupancies or Chapter 33 Existing Residential Board and Care Occupancies. Examples of residents who may not be capable of self-evacuation are as follows:

(A) a person with a physical disability of a nature that he/she is not capable of maneuvering in a wheelchair, walker, etc., unaided;

(B) a person with an intellectual disability who will not take or cannot understand instructions from a staff member; or

(C) a person that is taking medication before bedtime which will make it difficult for a staff member to arouse the person quickly.

(2) The method of determining the evacuation capability of residents under NFPA 101, Chapter 32 or 33, is by rating each resident and each staff member to determine an evacuation difficulty score (E-score). If the E-score is 1.5 or less, the evacuation capability of the facility is prompt, greater than 1.5 to five is slow, greater than five is impractical. The worksheets to be completed are located in NFPA 101A, Guide on Alternative Approaches to Life Safety, Chapter 6. Intermediate care facilities for persons with intellectual disability (ICF/ID) with 16 beds or less must meet the evacuation requirement for their designated Chapter 32 or 33 rating. The ratings and their requirements follow:

(A) Impractical rating.

(i) The facility must have one fire drill per shift each calendar quarter (minimum of 12 drills per year).

(ii) The facility must actually evacuate clients once a year on each shift.

(iii) All facility staff, including relief and substitute staff, must participate in drills as soon as possible after beginning employment on their shift.

(iv) For initial certification, one client must be admitted.

(v) E-scores are not required for certification under this rating.

(B) Slow rating.

(i) The facility must have one fire drill per shift each calendar quarter (minimum of 12 drills per year).

(ii) The facility must actually evacuate clients during all drills.

(iii) Staff on each shift must participate in drills.

(iv) New relief and substitute staff must participate in a drill within ten days of employment on their assigned shift.

(v) For initial certification, two clients must be admitted.

(vi) E-scores must be calculated as soon as possible, but within ten calendar days of admission.

(vii) Initial E-scores are based on four drills, as follows:

(I) two conducted during the daytime, and

(II) two conducted during the nighttime, after the first 30 minutes and within the first three hours of sleep.

(viii) After the initial E-scores are obtained, a worksheet for rating residents must be completed for all newly admitted clients to obtain an E-score. The evacuation capability is calculated as described in clause (vii) of this subparagraph.

(ix) E-scores must be updated annually or sooner if significant changes occur in any client's evacuation capability. These updated scores are based on the group's overall performance during fire drills as they are conducted throughout the year. Scores do not have to be calculated in accordance with the drills required for newly admitted clients based on the requirements stated in clause (vii) of this subparagraph.

(C) Prompt rating.

(i) The facility must have one fire drill per shift each calendar quarter (minimum of 12 drills per year).

(ii) The facility must actually evacuate clients during all drills.

(iii) Staff on each shift must participate in drills.

(iv) New relief and substitute staff must participate in a drill within ten days of employment on their assigned shift.

(v) For initial certification, all six clients must be admitted.

(vi) E-scores must be calculated as soon as possible, but within ten calendar days of admission.

(vii) Initial E-scores are based on four drills, as follows:

(I) two conducted during the daytime, and

(II) two conducted during the nighttime, after the first 30 minutes and within the first three hours of sleep.

(viii) After the initial E-scores are obtained, a worksheet for rating residents must be completed for all newly admitted clients to obtain an E-score. The evacuation capability is calculated as described in clause (vii) of this subparagraph.

(ix) E-scores must be updated annually or sooner if significant changes occur that would affect a client's evacuation capability. These updated scores are based on the group's overall performance during fire drills as they are conducted throughout the year. Scores do not have to be calculated in accordance with the drills required for newly admitted clients based on the requirements stated in clause (vii) of this subparagraph.

(3) The 'E' score will determine which NFPA 101 features are to be installed and maintained in the facility. These features include construction, fire alarm systems, smoke detector systems, interior finish, sprinkler systems, separation of bedrooms, and egress from the building.

(c) Construction.

(1) New construction is any construction work that began on or after July 5, 2016. The provisions of NFPA 101, Chapter 18 are applicable for large facilities, and Chapter 32 for small facilities.

(2) An existing facility is one that was operating with a license as a facility for persons with intellectual disability and related conditions before November 1, 2016, and has not subsequently become unlicensed. The provisions of NFPA 101, Chapter 19 are applicable for large facilities, and Chapter 33 for small facilities.

(3)Alterations or new installations of building services equipment, such as mechanical and electrical systems, generators, fire alarm, and detection systems, etc., must be accomplished in conformance with the requirements for new construction as required by NFPA 101.

(4) Site approval, as required by the local health officer, building department, and/or fire marshal having jurisdiction, must be obtained. Any conditions considered to be a fire, safety, or health hazard will be grounds for disapproval of the site by the department unless applied in an arbitrary or discriminating manner.

(5) Facilities that renovate must provide documentation for the flame spread rate of any new materials applied as an interior finish.

(6) Life safety features and equipment that have been installed in existing buildings and are now in excess of that required by NFPA 101 must continue to be maintained or must be removed at the direction of DADS.

(7) When an existing licensed facility plans building additions or remodeling, which includes construction of additional resident beds, then the ratio of bathing units must be reevaluated to meet minimum standards and the square footage of dining and living areas must be reevaluated by DADS. Conversion of existing living, dining, or activity areas to resident bedrooms must not reduce these functions to an area less than required by minimum standards.

(8) Buildings must be of recognized permanent type construction. They must be structurally sound with regard to actual or expected dead, live, and wind loads according to applicable building codes.

(9) Each building must be classified as to the building construction type for fire resistance rating purposes in accordance with NFPA 220, Standard on Types of Building Construction, and NFPA 101.

(d) Applicable codes and standards. Except as provided in paragraph (9) of this subsection, a facility must comply with NFPA 101, NFPA 99, and a Tentative Interim Amendment (TIA) issued by the NFPA for NFPA 99 or NFPA 101, including the TIAs listed in paragraphs (1) and (2) of this subsection. A facility must also comply with other NFPA publications referenced in this chapter and a TIA issued for publication referenced in this chapter unless otherwise approved or required by DADS.

(1) The following TIAs have been issued for NFPA 101:

(A) TIA 12-1 to NFPA 101, issued August 11, 2011;
(B) TIA 12-2 to NFPA 101, issued October 30, 2012;
(C) TIA 12-3 to NFPA 101, issued October 22, 2013; and
(D) TIA 12-4 to NFPA 101, issued October 22, 2013.

(2) The following TIAs have been issued for NFPA 99:

(A) TIA 12-2 to NFPA 99, issued August 11, 2011;
(B) TIA 12-3 to NFPA 99, issued August 9, 2012;
(C) TIA 12-4 to NFPA 99, issued March 7, 2013;
(D) TIA 12-5 to NFPA 99, issued August 1, 2013; and
(E) TIA 12-6 to NFPA 99, issued March 3, 2014.

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

(4) In the absence of such governing municipal codes, nationally recognized codes must be used, such as the Standard Building Code and the Standard Plumbing Code, both of the Southern Building Code Congress International, Inc. Such nationally recognized codes, when used, must all be publications of the same group or organization to assure the intended continuity.

(5) Heating, ventilating, and air-conditioning systems must be designed and installed in accordance with NFPA 90A Standard for the Installation of Air Conditioning and Ventilating Systems, and NFPA 90B Standard for the Installation of Warm Air Heating and Air Conditioning Systems, as applicable, and the American Society of Heating, Ventilating, and Air-Conditioning Engineers (ASHRAE), except as may be modified in this subchapter.

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

(7) The facility must meet all applicable provisions and requirements concerning accessibility for individuals with disabilities in the following laws and regulations: the Americans with Disabilities Act of 1990 (Title 42, United States Code, Chapter 126); Title 28, Code of Federal Regulations, Part 35; Government Code, Chapter 469, Elimination of Architectural Barriers; and Title 16, Texas Administrative Code, Chapter 68. Plans for new construction, substantial renovations, modifications, and alterations must be submitted to the Texas Department of Licensing and Regulation (Attention: Elimination of Architectural Barriers Program) for accessibility approval under Chapter 469.

(8) A facility with a boiler must meet all applicable provisions and requirements of Texas Health and Safety Code Annotated Chapter 755.

(9) A facility that is required to comply with NFPA 101, Chapter 33, must be in compliance with Chapter 33.2.3.5.7.1 or 33.2.3.5.7.2 by July 5, 2019.

(e) General requirements.

(1) The facility must provide and maintain furnishings and decorations that meet the needs of the residents.

(2) The building, grounds, and equipment must be maintained in good repair, operational, sanitary, and free of hazards.

(3) There must be at least one telephone (other than a pay phone) in the facility, accessible to residents for use in making calls to summon help in case of emergency.

(4) The facility must have:

(A) floors that are free of irregularities and are substantially level (floor areas may be at different elevations with connecting stairs or ramps);

(B) floors that have a resilient, nonabrasive, and slip-resistant surface;

(C) nonabrasive carpeting, if the area used by residents is carpeted and serves residents who lie on the floor or ambulate with parts of their bodies, other than feet, touching the floor; and

(D) exposed floor surfaces and floor coverings that promote mobility in areas used by residents and promote maintenance of sanitary conditions.

(5) Walls and ceilings must be cleanable and in good repair.

(6) Walls and floors must be kept free of cracks. The joint between the walls and floors is to be maintained so as to be free of spaces which might harbor insects, rodents, or vermin.

(7 )An adequate supply of hot water must be provided. The hot water system for resident use must be capable of being regulated to not exceed 110 degrees Fahrenheit at the fixtures.

(8) Draperies, curtains (including cubicle curtains), and other similar furnishings and decorations must be flame resistant in accordance with NFPA 701, Standard Methods of Fire Tests for Flame Resistant Textiles and Films. Documentation must be kept on file in the facility.

(9 )Wastebaskets must be of noncombustible material.

(10) An initial pressure test of facility gas lines from the meter must be provided. Additional pressure tests will be required when the facility has major renovations or additions where the gas service is interrupted. All gas heating systems must be checked for proper operation and safety prior to the heating season. Any unsatisfactory conditions must be corrected promptly.

(11) The IES recommendations must be followed to achieve proper illumination characteristics and lighting levels throughout the facility. Minimum illumination must be 10 foot candles in resident rooms during the day and 20-foot candles in corridors, staff stations, dining rooms, lobbies, toilets, bathing facilities, laundries, stairways, and elevators during the day. Illumination requirements for these areas apply to lighting throughout the space and should be measured at approximately 30 inches above the floor anywhere in the room. Minimum illumination for medication preparation or storage areas, kitchens, and staff station desks must be 50-foot candles during the day. Illumination requirements for these areas apply to the task performed and should be measured on the tasks.

(12) In addition to the required illumination (normal and emergency), the facility must keep on hand and readily available to night staff, no less than one working flashlight.

(13) Combustible attic areas larger than 3, 000 square feet must be divided into compartments not exceeding 3,000 square feet or the attic area must be sprinkled. The separating barrier must be at least one layer of 1/2-inch gypsum board on one side of support members.

 

§90.62 Site and Grounds

 

(a) General (All Facilities).

(1) Site grades shall provide for positive surface water drainage so that there will be no ponding or standing water at or near the building such as would present a hazard to health or provide a breeding site or harborage for disease vectors.

(2) Outdoor activity, recreational, and sitting spaces shall be provided and be accessible to all residents.

(3) Each facility shall have parking space to satisfy the needs of residents, employees, staff, and visitors.

(4) Protection shall be provided for resident safety on facility grounds by the use of appropriate methods, such as fences, hedges, retaining walls, railings, or other landscaping. Such protection shall not inhibit the free emergency egress to a safe distance away from the building.

(5) All outside areas, grounds, adjacent buildings, etc., on the site shall be maintained in good condition and kept free of rubbish, garbage, untended growth, and other conditions which may constitute a fire or health hazard.

(b) Additional site conditions (large facilities only).

(1) Auxiliary buildings located on the site within 20 feet of the main licensed structure and which contain hazardous operations or contents, such as laundries or storage buildings, shall meet the same code requirements for safety as the main licensed structure, or the building shall be moved to be 20 feet or farther away from the main building.

(2) Other buildings on the site shall meet the appropriate occupancy section or separation requirements of National Fire Protection Association (NFPA) 101 Life Safety Code.

(3) A new building (or addition) shall be set back at least 10 feet from the property lines except as otherwise approved by the department.

(4) Exit doors from the building shall not open directly onto a drive for vehicular traffic, but shall be set back at least six feet from the edge of such drive (measured from the end of building wall in the case of a recessed door) to prevent accidents due to lack of visual warning. These doors are to have automatic or self-closures.

(5) Walks shall be provided from all exits and shall be of non-slip surfaces free of hazards. Walks shall be at least 48 inches wide except as otherwise approved. Ramps should be used in lieu of steps where grade change is 21 inches or less, and where possible, for persons with physical disabilities and/or mobility impairment, and to facilitate bed or wheelchair removal in an emergency.

(6) Open or enclosed courts with resident rooms or living areas opening upon them shall not be less than 20 feet in the smallest dimension unless otherwise approved by the department.

(7) There shall be at least one approved readily accessible fire hydrant located within 300 feet of the building. The hydrant shall be on a minimum six-inch service line, or else there shall be an approved equivalent (such as a storage tank). The hydrant, its location, and service line, or equivalent shall be approved by the local fire department and the department.

(8) The building shall have suitable fire lanes for access as required by local fire authorities and DHS.

 

§90.63 Fire Service

 

(a) The facility shall be served by a paid or volunteer fire department. The fire department must provide written assurance to the department that the fire department can respond to an emergency at the facility.

(b) Water supply for fire fighting purposes shall be as required and approved by the fire fighting unit.

(c) The facility must have an annual inspection by the local fire marshall.

 

§90.64 Means of Egress

 

(a) Corridors and other means of egress shall be kept clear of obstructions and shall not be used for any purpose which would interfere with its use as an exit, such as for storage, vending machines, seating, or similar purposes. The corridor width shall be maintained at all times.

(b) Doors within the means of egress shall not be equipped with a latch or lock which requires the use of a key or tool to open from the inside of the building. A latch or other fastening device on a door shall be provided with a knob, handle, panic bar, or other simple type of releasing device, the method of operation of which is obvious, even in darkness. An exception is that large facilities are permitted to have doors which are locked, provided that residents can be rapidly removed by the use of remote control of locks or by keying all locks to keys readily available to staff who are in constant attendance.

(c) A hold-open device must be installed on each exit door of large facilities.

 

§90.65 Fire Alarms, Detection Systems, and Sprinkler Systems

 

(a) General. Fire alarms, detection systems, and sprinkler systems shall be as required by National Fire Protection Association (NFPA) 101 Life Safety Code, NFPA 72 National Fire Alarm Code, NFPA 13 Standard for the Installation of Sprinkler Systems, NFPA 13R Standard for the Installation of Sprinkler Systems in Residential Occupancies up to and Including Four Stories in Height, or NFPA 13D Standard for the Installation of Sprinkler Systems in One- and Two-Family Dwellings and Manufactured Homes, as specified in NFPA 101, Chapter 32 titled "New Residential Board and Care Occupancies," and Chapter 33 titled "Existing Residential Board and Care Occupancies," and as modified in this section.

(1) Each building shall have an approved fire alarm system.

(2) Components shall be compatible and laboratory listed for the use intended.

(3) Wiring and circuitry for alarm systems shall meet the applicable requirements of NFPA Codes, including NFPA 70 National Electric Code, for such systems.

(4) Fire alarm systems shall be installed, maintained, repaired, etc. by an agent having a current certificate of registration with the state fire marshal's office of the Texas Department on Fire Protection, in accordance with the state law. A fire alarm system installation certificate shall be provided as required by the Office of the State Fire Marshal. An exception is that large facilities who have professional engineers on staff that are qualified in electrical and electronic installations are not required to have a certificate of registration with the state fire marshal's office, provided they do not sell, install, or maintain fire alarm systems commercially.

(5) Smoke detector sensitivity must be checked within one year after installation and every alternate year thereafter in accordance with NFPA 72. Documentation, including as-built installation drawings, operation and maintenance manuals, and a written sequence of operation must be available for examination by the Texas Department of Human Services (DHS).

(b) Fire alarm and smoke detection and sprinkler systems for small facilities.

(1) A manual alarm initiating system shall be provided and shall be supplemented by an automatic smoke detection and alarm initiation system in accordance with NFPA 101, Chapter 9, titled "Building Service and Fire Protection Equipment," Section 9-6, titled "Fire Detection, Alarm, and Communications Systems."

(2) Smoke detectors shall be installed in resident bedrooms, corridors, hallways, and common living/dining areas. Service areas such as laundries and kitchens shall have heat detectors in lieu of smoke detectors.

(3) The fire alarm control panel shall be located to be in view of staff. The primary power source for the complete fire alarm system must be commercial electric.

(4) Emergency power source shall be from storage batteries or on-site engine-driven generator set.

(5) The operation of any alarm initiating device will sound an audible/visual alarm(s) at the site.

(6) The facility shall have a written contract with a fire alarm company or person licensed by the State Fire Marshall's Office to maintain the fire alarm system semiannually, and the system will be inspected as specified in the contract.

(7) Facilities classified as "impractical evacuation capability," must be protected by a sprinkler system in compliance with NFPA 13, NFPA 13R, or NFPA 13D with additional requirements for coverage in all dwelling areas and all closets as specified by NFPA 101, Chapters 32 and 33.

(c) Fire alarm and emergency systems for large facilities.

(1) The fire alarm system shall be designed so that whenever the general alarm is sounded by activation of any device (manual pull, smoke sensor, sprinkler, kitchen range hood extinguisher, etc.) the following shall occur automatically.

(A) Smoke and fire doors which are held open by approved devices shall be released to close.

(B) Air handlers (air conditioning/heating distribution fans) serving three or more rooms or any means of egress shall shut down immediately.

(C) Smoke dampers shall close.

(D) The proper zone indicating lights shall show on the fire alarm control panel(s), including auxiliary panels.

(2) Fire alarm bells or horns shall be located throughout the building for audible coverage. Flashing alarm lights (visual alarms) of proper intensity shall be installed to be visible in corridors and public areas including dining rooms and living rooms.

(3) A master control panel shall be visible at the main staff station which has alarm and trouble conditions by zones, power-on lights, and required signal devices for trouble conditions. All control panels must be listed in accordance with the provisions of the Underwriters Laboratories, Inc. (UL) for the intended use, i.e., manual, automatic, and water flow activation. Alarm and trouble zoning shall be by smoke compartments and by floors in multi-story facilities.

(4) Remote annunciator panels equipped with alarm by zone and a common trouble signal (both audible and visual) shall be located at auxiliary or secondary staff stations on each floor or major subdivisions of single story facilities, that will indicate the alarm condition of adjacent zones and the alarm conditions at all other staff stations.

(5) Manual pull stations shall be provided at all exits, living rooms, dining rooms, and at or near the staff stations.

(6) The NFPA 13 sprinkler system shall be interconnected with the fire alarm panel as a separate zone for alarm and trouble. Activation of the tamper switch will provide a trouble condition on the fire alarm panel which will not impair the operation of the alarm.

(7) The kitchen range hood extinguisher shall be interconnected with the fire alarm system. This interconnection may be a separate zone on the panel or combined with other initiating devices located in the same zone as the range hood is located.

(8) The fire alarm system shall be arranged to transmit an alarm automatically to the fire department legally committed to serve the area in which the facility is located by the most direct and reliable method allowed by NFPA 101.

(9) Partial sprinkler systems (those provided only for hazardous areas) shall be interconnected to the fire alarm system and comply with NFPA 101. Each partial system shall have a valve with a supervisory switch to sound a supervisory signal, water flow switch to activate the fire alarm, and an end of line test drain.

(10) Emergency electrical services shall be provided to comply with the provisions of NFPA 70. This includes such items as emergency power provided by generator or batteries for fire alarm systems, emergency egress lighting, call systems, TV cameras and monitors (if used for corridor observation), life support systems, designated wall receptacles, etc. The system shall comply with NFPA 99 Standard for Health Care Facilities, and NFPA 37 Standard for the Installation and Use of Stationary Combustion Engines and Gas Turbines.

(11) Elevators, escalators, and moving walks. Elevators shall comply with the provisions of NFPA 101 and American National Standards Institute (ANSI) Safety Code for Elevators, Dumbwaiters, Escalators, and Moving Walks (ANSI A17.1). Elevators are required for buildings having resident facilities (such as bedrooms, dining, or recreation areas) or services (such as diagnostic or therapy) located on other than the main entrance floor. Passenger elevators, escalators, and walks shall be inspected by a qualified agent at least every six months. Freight elevators and dumbwaiters shall be inspected every 12 months.

 

§90.66 Portable Fire Extinguishers

 

(a) General. Portable fire extinguishers must be provided and maintained to comply with the provisions of the National Fire Protection Association (NFPA) 10 Standard for Portable Fire Extinguishers. This includes such items as type of extinguishers (A, B, or C), location and spacing, mounting heights, monthly inspections by staff, yearly inspections by a licensed agent (with any necessary servicing), and hydrostatic testing as recommended by manufacturer.

(b) Types of extinguishers.

(1) Extinguishers in resident corridors must be spaced so that travel distance is not more than 75 feet. The minimum size of extinguishers must be either 2 1/2 gallon (pressurized water) for water type or 2-A: 10-B: C (five pound dry chemical) for ABC type.

(2) Extinguishers must be installed on supplied hangers or brackets or be mounted in cabinets approved by the Texas Department of Human Services (DHS).

(3) Extinguishers must be surface wall-mounted or recessed in cabinets where they are not subject to physical damage or dislodgement.

(4) Extinguishers having a gross weight not exceeding 40 pounds must be installed so that the top of the extinguisher is not more than five feet above the floor. Extinguishers with a gross weight greater than 40 pounds must be installed so the top of the extinguisher is not more than 3 1/2 feet above the floor. The clearance between the bottom of the extinguisher and the floor must not be less than four inches.

(5) Portable extinguishers provided in hazardous rooms must be located as close as possible to the exit door opening and on the latch (knob) side.

(6) Staff must be appropriately trained in the use of each type of extinguisher in the facility.

 

§90.67 Accessibility Provisions

 

The physical plant shall be designed for persons with physical disabilities and/or mobility impairments and must comply with applicable federal, state, and local requirements.

 

§90.68 Architectural Space Planning

 

(a) Large facilities.

(1) Ancillary resident space. The minimum total ancillary resident-use space shall be not less than 35 square feet per bed. Ancillary space includes areas for living, dining, recreation, therapy, training, and other such program areas. It does not include bedrooms, passageways, offices, kitchens, laundries, etc. (more than 35 square feet per bed is usually needed in facilities with less than 60 beds). Facilities which have large proportions (approximately 65% or greater) of nonambulatory and/or bedfast residents shall provide at least 50 square feet of ancillary space per bed unless otherwise approved by DHS. Areas providing less space than called for in this paragraph cannot be approved except on an individual basis where clearly justified.

(2) Resident bedrooms.

(A) Bedrooms shall be arranged and equipped for adequate personal care and for comfort and privacy. Bedrooms shall have full height walls that extend from floor to ceiling with doors. (Partial partitions or furnishings are not a substitute.) An exception is that existing facilities constructed prior to October 3, 1988, that have partial partitions in lieu of full-height walls, need not install the full-height walls unless there are major renovations or conversions.

(B) Bedrooms shall provide at least 80 square feet for a single occupancy (one bed) and 60 square feet per bed for multiple occupancy. (Note: room configuration and usability is taken into consideration and there may be instances where the minimum square footage will not be acceptable.) The minimum room dimension shall be at least eight feet for a single room and at least 10 feet for a multiple-bed room, unless otherwise approved by the department. An exception is that multi-occupancy bedrooms for persons in wheelchairs shall have 70 square feet per wheelchair occupant bed.

(C) No more than four beds shall be in any one bedroom. An exception is that the department may grant a variance from the limit of four residents per room only if a physician who is a member of the interdisciplinary team and who is a qualified mental retardation professional:

(i) certifies that each resident to be placed in a bedroom housing more than four residents is so severely medically impaired as to require direct and continuous monitoring during sleeping hours; and

(ii) documents the reasons why housing in a room of only four or fewer residents would not be medically feasible.

(D) In the bedrooms and for each resident there shall be a bed with a comfortable mattress and appropriate bedding, functional furniture appropriate to residents' needs, and closet space providing security and privacy for clothing and personal belongings. Closet space shall provide at least 24 inches of lineal hanging space per bed (in certain cases, such as for infants, exceptions may be made). Married couples may share a bed.

(E) Each bedroom shall have at least one outside wall with an operable window giving outside exposure. Unless approved otherwise by the department, the window sill of the required window shall be no higher than 44 inches from the floor and shall be at or above outside grade level. Other window requirements shall be as called for in the National Fire Protection Association (NFPA) 101. The window area for bedrooms shall be equal to at least 10% of the total room floor area.

(F) If a bedroom is below grade level, it must have a window that is usable as a second means of escape by the resident(s) occupying the room. The window shall be no more than 44 inches (measured to the window sill) above the floor.

(G) All resident bedrooms shall open onto an exit corridor, living area, or public area and shall be arranged for convenient resident access to dining, living, and bathing areas.

(3) Social-diversional spaces.

(A) Living rooms, day rooms, lounges, etc., must be provided on a sliding scale as follows (as part of the minimum required ancillary space):

Number of Beds Area Per Bed (Minimum)
1-15 18 square feet (Minimum 144 square feet)
16-20 17 square feet
21-25 16 square feet
26-30 15 square feet
31-35 14 square feet
36-40 13 square feet
41-50 12 square feet
51-60 11 square feet
61 and over 10 square feet (Ex: 100 beds = 1,000 square feet)

 

(B) Where a required way of exit is through a living area, a pathway equal to the corridor width will normally be deducted from that area. Such exit pathways must be kept clear of obstructions.

(C) Each living room and dining room shall have at least one outside window. Normally, resident classrooms and training areas should also have an outside window unless otherwise approved by the department.

(4) Dining space. Dining space shall provide at least 15 square feet per resident bed for single-shift feeding. If procedure is approved for feeding in two shifts, at least eight square feet per resident bed shall be provided.

(5) Training spaces (academic, behavioral, occupational, physical, and speech therapy, etc.). Classroom type space is anticipated for most training activities. The number and size of such spaces will be evaluated on an individual facility basis and according to program policies and procedures. Generally, training rooms should provide at least 20 square feet per resident trainee within the room except that no training room should be less than 80 square feet. For purposes of calculation, space should be provided for at least one-third of the total population at any one time (i.e., plan space for 33 residents in a 100-bed facility).

(6) Kitchens (main/dietary).

(A) Kitchens shall be evaluated on the basis of their performance in the sanitary and efficient preparation and serving of meals to residents. Consideration shall be given to planning for the type of meals served, the overall building design, the food service equipment, arrangement, and the work flow involved in the preparation and delivery of food. Plans for construction of new facilities shall contain a detailed kitchen layout prepared by, or under the direction of, a registered or licensed dietitian.

(B) Kitchens shall be designed so that room temperature, at peak load, shall not exceed an average temperature of 85 degrees Fahrenheit measured over the room at the five-foot level. The amount of supply air should take into account the large quantities of air exhausted at the range hood and dishwashing area.

(C) Kitchens shall be provided with operational equipment as planned and scheduled by the facility's consultants for preparing and serving meals and for refrigerating and freezing of perishable foods, as well as equipment in, and/or adjacent to, the kitchen or dining area for producing ice.

(D) Kitchens shall be provided with facilities for washing and sanitizing dishes and cooking utensils. Such facilities will be provided for the number of meals served and the method of serving (permanent or disposable dishes, etc.). The kitchen shall contain a compartmented sink large enough to immerse pots and pans. Separation of soiled and clean dish areas shall be maintained, including air flow.

(i) A mechanical dishwasher must be used to sanitize dishes and utensils and must meet requirements specified under 25 TAC §229.165 (relating to Equipment, Utensils, and Linens); or

(ii) Dishes and utensils will be manually sanitized in accordance with 25 TAC §229.165 prior to placement in the dishwasher.

(E) Kitchens shall be provided with a supply of hot and cold water. Hot water for sanitizing purposes shall be 180 degrees Fahrenheit or the manufacturer's suggested temperature for chemical sanitizers, as specified for the system in use. For mechanical dishwashers the temperature measurement is at the manifold.

(F) Kitchens shall be provided with at least one hand-washing lavatory or hand-sanitizing device. Hand-washing lavatories shall be provided with hot and cold running water, soap, and individual towels, preferably paper towels; common use towels shall not be used.

(G) In new construction, staff restroom facilities with a lavatory shall be accessible to kitchen staff without traversing resident use areas. The restroom door shall not open directly into the kitchen, e.g., provide a vestibule.

(H) In new construction, janitorial facilities shall be provided exclusively for the kitchen and shall be located in and entered from the kitchen.

(I) Nonabsorbent smooth finishes or surfaces shall be used on kitchen floors, walls, and ceilings. Such surfaces shall be capable of being sanitized to maintain a healthful environment.

(J) All operable window openings shall be screened. Doors opening to the outside of the building shall have self-closing devices.

(7) Food storage areas (main/kitchen).

(A) In new construction, food storage areas shall be planned on the basis of the number and type of resident meals to be served. The size and layout of dry foods storage shall be prepared by or designed under the direction of a licensed or registered dietitian.

(B) Food storage areas shall provide for storage of a four-day minimum supply of nonperishable foods at all times.

(C) Shelves shall be movable metal or sealed lumber, and walls must be finished with a nonabsorbent finish to provide a cleanable surface.

(D) Dry food storage shall have an approved venting system to provide for positive air circulation.

(E) The maximum room temperature for food storage shall not exceed 85 degrees Fahrenheit at all times. The measurement shall be taken at the five-foot level.

(F) Food storage areas may be located apart from the food preparation area as long as there is space adjacent to the kitchen for necessary daily stores.

(8) Food services areas.

(A) Where service areas other than the kitchen are used to dispense foods, these shall be designated as food service areas and shall have equipment for maintaining required food temperatures while serving.

(B) Separate food service areas shall have hand-washing facilities as a part of the food service area. An employee toilet shall be provided.

(C) Finishes of all surfaces except ceilings shall be the same as those required for dietary kitchens.

(9) Other spaces.

(A) Bathing units (tubs or showers) shall be provided at a minimum ratio of one per 15 beds. Waterclosets and lavatories shall be provided at a minimum ratio of one per eight beds. Bathing and toilet facilities should be of a type appropriate to the resident's varying needs and disabilities, and designed for privacy within the bathroom.

(B) Adequate storage space must be provided for equipment, carts, wheelchairs, etc., so as to eliminate the problem of such items being left or stored in corridors, or overcrowding bedroom space.

(b) Small facilities.

(1) Bedrooms.

(A) Bedrooms shall be arranged and equipped for adequate personal care and for comfort and privacy. Bedrooms shall have full height walls that extend from floor to ceiling with doors. (Partial partitions or furnishings are not a substitute.)

(B) Bedrooms shall provide at least 80 square feet for a single occupancy (one bed) and 60 square feet per bed for multiple occupancy. (Note: room configuration and usability is taken into consideration and there may be instances where the minimum square footage will not be acceptable.) The minimum room dimension shall be at least eight feet for a single room and at least 10 feet for a multiple-bed room, unless otherwise approved by the department. An exception is that multi-occupancy bedrooms for persons in wheelchairs shall have 70 square feet per wheelchair occupant bed.

(C) No more than four beds shall be in any one bedroom. An exception is that the department may grant a variance from the limit of four residents per room only if a physician who is a member of the interdisciplinary team and who is a qualified mental retardation professional:

(i) certifies that each resident to be placed in a bedroom housing more than four residents is so severely medically impaired as to require direct and continuous monitoring during sleeping hours; and

(ii) documents the reasons why housing in a room of only four or fewer residents would not be medically feasible.

(D) In the bedrooms and for each resident there shall be a bed with a comfortable mattress and appropriate bedding, functional furniture appropriate to residents' needs, and closet space providing security for personal clothing and belongings. Closet space shall provide at least 24 inches of lineal hanging space per bed (in certain cases, such as for infants, exceptions may be made). Married couples may share a bed.

(E) Every bedroom shall have at least one outside window that can be readily opened from the inside and provides a clear opening of at least 5.7 square feet (minimum width of 20 inches; minimum height of 24 inches). The bottom of the opening shall be not more than 44 inches above the floor. Minimum dimensions for operable window section are 20 inches wide by 41.2 inches in height, or 24 inches in height by 34.2 inches wide to provide the minimum 5.7 feet of opening. If a bedroom has a second means of escape independent and remote from the primary means of escape, the bedroom shall have a window(s) with clear glass of area not less than 8% of the bedroom floor area. When opened, the window(s) must have an open space of not less than 4% of the bedroom floor area.

(F) Bedroom doors shall be 20-minute fire rated or 1 3/4-inch solid bonded core wood. These doors shall have automatic closures and latch in their frames. Exceptions are as follows.

(i) Doors need only be smoke resistant and do not need automatic closure if the building has an approved sprinkler system throughout.

(ii) Doors need only be smoke resistant with automatic closures if the facility is classified "prompt" level of evacuation difficulty.

(G) Each small facility shall have at least two remotely located means of escape that do not involve windows. The arrangement shall be such that there is a primary means of escape from each sleeping room that provides a path of travel to the outside without traversing any corridor or other space exposed to unprotected vertical openings or common living spaces, such as living rooms and kitchens. Exceptions are as follows:

(i) A second means of escape or alternate protection is not required:

(I) if the bedroom has a door leading directly to the outside of the building, at or to grade level; or

(II) if the building is protected with an approved sprinkler system meeting National Fire Protection Association (NFPA) 13 Standard for the Installation of Sprinkler Systems, NFPA 13R Standard for the Installation of Sprinkler Systems in Residential Occupancies up to and Including Four Stories in Height, or NFPA 13D Standard for the Installation of Sprinkler Systems in One- and Two-family Dwellings and Manufactured Homes.

(ii) Separated primary means of escape is not necessary if the building is single story; has 1 3/4-inch solid bonded core doors to bedrooms or smoke resistant doors with closures; 20-minute fire protection for the structure; Class A or B interior finish; bedroom windows of proper size; total smoke detection coverage of habitable spaces, including loft areas that are tied into the manual fire alarm system; and two remote means of escape.

(2) Living room space. Living room space shall provide at least 15 square feet per resident (with a minimum of 120 square feet regardless of number of residents). Living space can include one or more rooms or areas provided that the first such area is at least 80 square feet each.

(3) Dining space. Dining space must be large enough to accommodate all residents at one sitting, and shall provide at least 15 square feet per resident. Living and dining space may be in one room or area providing a combined total of 30 square feet per resident (15 square feet living plus 15 square feet dining per resident).

(4) Bathrooms. Bathrooms shall provide for individual privacy. Water closets and lavatories shall be provided at a minimum ratio of one for each five residents. There shall be at least one tub or shower for each eight residents. At least one bathroom (with water closets, lavatory, and tub or shower) shall be provided on each sleeping floor accessible to the residents of that floor.

(5) Kitchen. The facility shall have a kitchen to meet the general food service needs of the residents. It shall include provisions for the storage, refrigeration, preparation, and serving of food; for dish and utensil cleaning; and for refuse storage and removal. A mechanical dishwasher shall be provided.

(6) Office. An office or other space shall be available for private individual counseling and for the safekeeping of files and records.

(7) Stairs. Buildings of two or more stories require at least two separate approved exit stairs from the upper floors. Usable space under the stairs is not allowed unless fire separated or protected in accordance with NFPA 101 Life Safety Code. Open interior stairways which constitute an "unprotected vertical opening" to a required exit passageway on the upper floor must be provided with a barrier (wall and door) at either the lower or upper level to prevent the rapid rise of fire or smoke originating on the lower level from rendering the upstairs passageway to the second stair impassable.

(8) Fire rating. Interior wall and ceiling surfaces shall have, as the finished surface or a substrate or sheathing, a fire resistance of not less than 20 minutes, similar to that provided by 3/8-inch gypsum board.

 

§90.69 Storage Requirements (All Facilities)

 

(a) Bulk storage of hazardous items such as janitor supplies and equipment shall be provided in closets or spaces separate from resident use areas. Closets or spaces shall be maintained in a safe and sanitary condition and ventilated in a manner commensurate with the use of the closet or space.

(b) There shall be space for equipment for daily out-of-bed activity for all residents.

(c) There shall be suitable storage space accessible to the resident for personal possessions such as toys, televisions, radios, prosthetic equipment, and clothing.

(d) Attics, mechanical rooms, boiler rooms, and other similar areas shall not be used for storage purposes.

 

§90.70 Electrical, Heating, Ventilating, and Air-Conditioning Systems (HVAC) - All Facilities

 

(a) Cooling and heating shall be provided, as necessary, for resident comfort. Heating systems in resident use areas shall be capable of maintaining a minimum temperature of 68 degrees Fahrenheit, and cooling of 81 degrees Fahrenheit maximum, with humidity in the normal comfort range.

(b) The facility shall be well ventilated through the use of windows, mechanical ventilation, or a combination of both. Rooms and areas which do not have outside windows and which are used by residents or personnel shall be provided with functioning mechanical ventilation to change the air on a basis commensurate with the room usage.

(c) Air systems shall provide for the induction and mixing of at least 10% outside fresh air into the facility unless otherwise approved by DHS, that is, 100% continuous recirculation of interior air in most areas is not acceptable; or the system shall be designed to meet American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE).

(d) Operable outside windows shall be provided with insect screens that prevent insect entry.

(e) Rooms such as baths, toilets, soiled linen, trash or garbage rooms, soiled utilities, janitor's closets, and other such areas which produce odors, fumes, excessive moisture, etc., shall be provided with an exhaust system ducted to the exterior, meeting nationally recognized standards for capacity and function.

(f) Electrical and mechanical systems shall be safe and in working order. The department may require the facility sponsor or licensee to submit evidence to this effect, consisting of a written report by the local fire marshal, city/county building official having jurisdiction, or a registered professional engineer.

(g) Use of electrical appliances, devices, and lamps shall be such as not to overload circuits.

(h) Portable heaters and open-flame heating devices are prohibited. All fuel burning devices shall be vented. Working fireplaces are acceptable if of safe design and construction, and if screened or otherwise suitably enclosed.

 

§90.71 Plumbing (All Facilities)

 

(a) The water supply must be of safe, sanitary quality, suitable for use, and adequate in quantity and pressure. The water must be obtained from a water supply system; the location, construction, and operation of which are approved by the Texas Natural Resources Conservation Commission (TNRCC).

(b) Sewage must be discharged into a state-approved sewerage system or septic system; otherwise, the sewage must be collected, treated, and disposed of in a manner which is approved by TNRCC.

 

§90.72 Maintenance (All Facilities)

 

(a) Walls, doors, and ceilings shall be maintained free from holes, cracks, falling plaster or paint, and shall be cleaned and painted.

(b) Paint or plaster inside the building that contains lead shall be removed or covered so that it is not accessible to the residents.

(c) All abandoned utilities such as electrical wiring, ducts, and pipes shall be removed from the facility when no longer usable.

 

§90.73 Environmental Services

 

(a) Pest control.

(1) The facility shall be kept free of insects, rodents, and vermin. The least toxic and least flammable effective chemicals shall be used. Poisons shall not be stored with food products and shall be under lock.

(2) Garbage and trash shall be stored in enclosed containers, protected against leakage, contact with disease vectors, and access to animals. It shall be stored in areas separate from those used for the preparation and storage of food and shall be removed from the premises in conformity with state and local practices. Garbage and trash containers shall be maintained free of accumulations and coatings of garbage. Garbage storage areas shall be kept clean and in good repair.

(b) Storage. Storage items shall be neatly arranged and placed to minimize fire hazard. Gasoline, volatile materials, paint, and similar products, excluding personal items, shall not be stored in the building housing residents except as may be approved by the local fire marshal. Accumulations of extraneous material and refuse shall not be permitted.

(c) Laundry.

(1) There shall be clean linen available at all times, and in a quantity to meet the needs of the residents.

(2) Clean linen shall be stored in a clean storage area, which is easily accessible to the personnel.

(3) Soiled linen and clothing in large facilities shall be transported or stored in approved containers or bags.

(A) Soiled laundry storage shall be in separate, well ventilated areas and shall not be permitted to accumulate in other areas of the facility.

(B) Soiled bags or containers shall not be used to convey clean linens.

(C) Soiled linens shall not be sorted, laundered, rinsed, or stored in bathrooms, resident rooms, corridors, kitchens, or food storage areas.

 

§90.74 Safety Operations

 

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

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

(2) 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.

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

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

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

(6) The facility must ensure that smoke dampers are inspected and tested in accordance with NFPA 101.

(7) The facility must maintain onsite documentation of compliance with this subsection.

(b) The facility must have a program to inspect, test, and maintain the sprinkler system and must execute the program at least once every three months for large facilities and at least once every six months for small facilities.

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

(2) 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.

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

(4) The facility must ensure that sprinkler system components that require testing are tested in accordance with NFPA 13, NFPA 13D, or NFPA 13R and in accordance with NFPA 25.

(5) The facility must ensure that sprinkler system components that require maintenance are maintained in accordance with NFPA 13, NFPA 13D, or NFPA 13R and in accordance with NFPA 25.

(6) The facility must ensure that individual sprinkler heads are inspected and maintained in accordance with NFPA 13, NFPA 13D, or NFPA 13R and in accordance with NFPA 25.

(7) The facility must maintain onsite documentation of compliance with this subsection.

(c) The facility must formulate, adopt, and enforce smoking policies.

(1) The facility's policies must comply with all applicable codes, regulations, and standards, including local ordinances.

(2) The facility must inform residents, staff, visitors, and other affected parties of the facility's smoking policies.

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

(4) The facility must provide ashtrays of noncombustible material and safe design in all areas where smoking is permitted.

(5) The facility must provide a metal container with a self-closing cover device into which ashtrays can be emptied in all areas where smoking is permitted.

 

§90.75 Plans, Approvals, and Construction Procedures

 

At the option of the applicant, the Texas Department of Human Services (DHS) will review plans for new buildings, additions, conversion of buildings not licensed by DHS, or remodeling of existing licensed facilities. DHS will, within 30 days, inform the applicant in writing of the results of the review. If the plans comply with DHS's architectural requirements, DHS 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. DHS 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 State Board of Registration for 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 State 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 DHS is based on general utility, the minimum licensing standards, and conformance of the Life Safety Code, 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 §90.20 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);

(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, but not limited to, heating, ventilating, and air-conditioning layout, ducts, protection of duct inlets and outlets, combustion air, piping, exhausts, and duct smoke and/or fire dampers;

(ii) and equipment types, sizes, and locations.

(L) Sprinkler system documents must include:

(i) plans and details of National Fire Protection Association (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 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 local health or wastewater authority having jurisdiction.

(3) Construction phase.

(A) DHS 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 DHS before admitting residents. An initial architectural inspection will be scheduled after DHS 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 DHS and found acceptable, this information will be forwarded to the DHS Facility Enrollment 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 residents between the time it receives initial approval from DHS and the time the license is issued.

(C) The following documents must be available to DHS's 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. A copy of the material list and test certification must be available;

(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, DHS 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, DHS 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 DHS for review and that may require revised "as-built" drawings to cover the changes. This may include 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, resident bedroom dimensions less than required, and other such features that would disrupt or otherwise adversely affect the residents and staff if corrected after occupancy;

(iii) no written approval by local authorities;

(iv) fire protection systems, including, but not limited to, 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 National Fire Protection Association (NFPA) 101 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 residents 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 DHS for record/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 F, Inspections, Surveys, and Visits

Revision 09-1

 

§90.191 Procedural Requirements

 

(a) Texas Department of Human Services (DHS) inspection and survey personnel must perform inspections and surveys, follow-up visits, complaint investigations, investigations of abuse or neglect, and other contact visits from time to time as they deem appropriate or as required for carrying out the responsibilities of licens

(b) An inspection must be conducted by an individual qualified surveyor or by a team, of which one member is a specialized staff person who has expertise in developmental disabilities.

(c) To determine standard compliance which cannot be verified during regular working hours, night or weekend inspections may be conducted to cover specific segments of operation and will be completed with the least possible interference to staff and residents.

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

(e) Certain visits may be announced, including, but not limited to, consultation visits to determine how a physical plant may be expanded or upgraded and visits to determine the progress of physical plant construction or repairs, equipment installation or repairs, or systems installation or repairs, or conditions when certain emergencies arise, such as fire, windstorm, or malfunctioning or nonfunctioning of electrical or mechanical systems.

(f) Persons authorized to receive advance information on unannounced inspections include:

(1) citizen advocates invited to attend inspections, as described in subsection (g) of this section;

(2) representatives of the United States Department of Health and Human Services whose programs relate to the Medicare/Medicaid Long Term Care Program; and

(3) representatives of DHS whose programs relate to the Medicare/Medicaid long term care program.

(g) DHS will conduct at least two unannounced inspections each licensing period for each institution licensed under Health and Safety Code, Chapter 252, except as provided for in this subsection.

(1) A sufficient number of inspections will be conducted between the hours of 5:00 p.m. and 8:00 a.m. In randomly selected institutions, a cursory after-hours inspection will be conducted to verify staffing, assurance of emergency egress, resident care, medication security, food service or nourishments, sanitation, and other items as deemed appropriate. To the greatest extent feasible, any disruption of the residents will be minimal.

(2) For at least two unannounced inspections each licensing period, DHS may invite to the inspections at least one person as a citizen advocate who has an interest in or who is employed by or affiliated with an organization or agency that represents or advocates for persons with mental retardation or a related condition. DHS will provide to these organizations basic licensing information and requirements for the organizations' dissemination to their members whom they engage to attend the inspections. Advocates participating in the inspections must follow all DHS protocols. Advocates must provide their own transportation. The schedule of inspections in this category will be arranged confidentially in advance with the organizations. Participation by the advocates is not a condition precedent to conducting the inspection.

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

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

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

(3) When the facility is requested to furnish the copies, the facility may charge DHS at a rate not to exceed the rate charged by DHS for copies. The procedure of copying is the responsibility of the administrator or his designee. If copying requires 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) DHS protects the copies for privacy and confidentiality in accordance with recognized standards of medical records practice, applicable state laws, and DHS policy.

(5) Falsification of information contained in client records is prohibited.

(i) DHS will provide for a special team to conduct validation surveys or verify findings of previous licensure surveys.

(1) At DHS's discretion, based on record review, random sample, or any other determination, DHS may assign a team to conduct a validation survey. DHS may use the information to verify previous determinations or identify training needs to assure consistency in deficiencies cited and in punitive actions recommended throughout the state.

(2) Facilities are required to correct any additional deficiencies cited by the validation team but are not subject to any new or additional punitive action.

(j) During investigation and/or survey inspections, interviews of individuals residing in the facility or staff employed by the facility may be conducted in private without fear of retaliation toward staff or residents.

(k) Facility staff must be available at the facility within 45 minutes of telephone contact by survey staff.

 

§90.192 Determinations and Actions Pursuant to Inspections, Surveys, or Investigations

 

(a) DADS will determine if a facility meets licensure requirements through inspections, surveys, and investigations.

(b) During an investigation resulting from a complaint, DADS does not disclose the source of the complaint.

(c) At the conclusion of an inspection, survey, or investigation, a representative of DADS holds an exit conference with a representative of the facility and provides the facility representative a written list of violations./p>

(d) If DADS cites an additional violation during a review of field notes or preparation of the official final list of violations, DADS:

(1) communicates the additional violation to the facility in writing within ten working days after the exit conference; and

(2) gives the facility an additional face-to-face exit conference regarding the additional violations.

(e) DADS provides the facility with a clear and concise summary in nontechnical language of each licensure inspection or complaint investigation.

(f) The facility must submit a plan to correct cited violations to the regional director of the area in which the facility is located no later than 10 working days after the date the facility receives the final, official statement of violations. To be accepted by DADS, a plan to correct violations must state when the corrective action will be completed and must address:

(1) how the facility will accomplish corrective action for residents directly affected by the cited violation;

(2) how the facility will identify other residents who may be affected by the cited violation; and

(3) how the facility will avoid having the violation recur.

(g) If a facility fails to submit a plan to correct violations that meets the requirements of subsection (f) of this section, DADS may assess an administrative penalty against the facility in accordance with §90.236(a)(7) of this chapter (relating to Administrative Penalties).

Subchapter G, Abuse, Neglect, and Exploitations Complaint and Incident Reports and Investigations

Revision 10-3

 

 

§90.212 Reporting Abuse, Neglect, and Exploitation to DFPS

 

(a) A person, including a facility owner or employee, who has cause to believe that a resident of a facility has been or is being subjected to physical abuse, sexual abuse, sexual exploitation, verbal or emotional abuse, neglect, or exploitation, as those terms are defined in 40 TAC Chapter 711, by a person other than a resident of the facility, must report the alleged abuse, neglect, or exploitation to the Texas Department of Family and Protective Services (DFPS), as required by 40 TAC Chapter 711, by calling 1-800-647-7418.

(b) If the person making the report is not an employee of the facility, such as a resident or visitor, facility staff must assist the person in making the report, if necessary.

(c) The facility must assist a DFPS investigator by preserving and safeguarding evidence of the alleged abuse, neglect, or exploitation and by ensuring that facility employees are made available upon request by the investigator.

 

§90.213 Reporting Incidents to DADS

 

(a) In this section, serious physical injury is defined as in 40 TAC Chapter 711.

(b) A facility must report any of the following incidents to DADS' Consumer Rights and Services Section at 1-800-458-9858 or 512-438-2633 within one hour after suspecting or learning of the incident:

(1) alleged (Class I) physical abuse of a resident, as defined in 40 TAC Chapter 711, that caused or may have caused serious physical injury;

(2) alleged (Class I) sexual abuse of a resident, as defined in 40 TAC Chapter 711;

(3) sexual activity between residents resulting from coercion, physical force, or taking advantage of the disability of a resident;

(4) sexual activity involving a resident less than 18 years of age;

(5) the pregnancy of a resident;

(6) resident-to-resident aggression that results in serious physical injury;

(7) the death of a resident; and

(8) a resident whose location has been unknown by the facility for more than eight hours or less than eight hours if there are circumstances that place the resident's health or safety at risk.

(c) Within five working days after making a report described in subsection (b), the facility must ensure an investigation of the incident is conducted and send a written investigation report on Form 3613A, Provider Investigation Report, to DADS' Consumer Rights and Services Section.

 

§90.214 Protection of Residents After Report of Abuse, Neglect, and Exploitation

 

(a) A facility must ensure that physical and emotional care is provided to an alleged victim of abuse, neglect, or exploitation immediately but in no case more than one hour after the facility makes or learns of an allegation of abuse, neglect, or exploitation, and must ensure that such care is continued as needed.

(b) The facility must take measures to protect the rights and safety of the alleged victim and other residents of the facility after the facility makes or learns of an allegation of abuse, neglect, or exploitation, including immediately preventing the alleged perpetrator(s) from having contact with residents.

(c) If the alleged perpetrator is not an employee of the facility and the alleged abuse, neglect, or exploitation occurred away from the facility premises, the facility must convene the interdisciplinary team of the alleged victim to address the alleged perpetrator's access to the alleged victim while an investigation is being conducted. If the interdisciplinary team recommends that a restriction be placed on an alleged perpetrator's access to the alleged victim, the facility's specially constituted committee must review and approve the restriction before it is implemented and the facility must document the restriction in the alleged victim's record.

(d) Within 24 hours of making or learning of an allegation of abuse, neglect, or exploitation, the facility must notify the alleged victim and the victim's legally authorized representative (LAR) that an allegation of abuse, neglect, or exploitation involving the victim has been made and reported. If the facility cannot notify the LAR in person or by phone, the facility must notify the LAR by certified mail with a return receipt requested.

(e) If DFPS confirms an allegation of abuse, neglect, or exploitation against an employee of a facility, the facility must take prompt and appropriate disciplinary action against the employee.

 

§90.215 Employee Statement

 

(a) A facility must require an employee of the facility to sign a statement:

(1) acknowledging that the employee may be criminally liable for failure to report suspected abuse, neglect, or exploitation; and

(2) acknowledging the employee's rights under Texas Health and Safety Code §252.132, which states that an employee has a cause of action against a facility, the owner of a facility, or another employee of a facility that suspends or terminates the employment of the employee or otherwise disciplines, discriminates against, or retaliates against the employee for:

(A) reporting to the employee's supervisor, an administrator of the facility, a state regulatory agency, or a law enforcement agency, a violation of law, including a violation of Health and Safety Code, Chapter 252, or a rule adopted under that chapter; or

(B) initiating or cooperating in any investigation or proceeding of a governmental entity relating to the care, services, or conditions at the facility.

(b) The facility must maintain as a part of its personnel records and make available to DADS upon request the statement described in subsection (a) of this section.

 

§90.217 Reporting of Resident Death Information

 

(a) All licensed facilities must submit to the Texas Department of Human Services (DHS) a report of deaths of any persons residing in the facility and those persons transferred from the facilities to a hospital who expire within 24 hours after transfer.

(b) The facility must submit to DHS a standard DHS form within ten workdays after the last day of the month in which a resident death occurs. The form must include:

(1) name of deceased;

(2) social security number of the deceased;

(3) date of death; and

(4) name and address of the institution.

(c) These reports are confidential under the Health and Safety Code, §252.134; however, licensed facilities must make available historical statistics provided to them by DHS, if requested by the applicants for admission or their representative.

(d) DHS produces statistical information of official causes of death to determine patterns and trends of incidents of death and makes this information available to the public upon request.

Subchapter H, Enforcement

Revision 16-1

 

 

§90.231 Warning Letter

 

When Texas Department of Human Services (DHS) personnel determine that a facility is out of compliance with licensure rules to a degree that places the facility at risk of the imposition of licensing actions, DHS may send a warning letter to the facility. The warning letter notifies the facility that the violations of licensing rules must be corrected.

 

§90.232 License Suspension

 

(a) The Texas Department of Human Services (DHS) may suspend a facility's license when the facility's violation of the licensure rules threatens to jeopardize the health and safety of residents.

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

(c) The facility will be notified by certified mail of DHS's 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 §90.18 of this title (relating to Informal Reconsideration). If the facility requests an informal reconsideration, DHS will give the license holder a written affirmation or reversal of the proposed action.

(d) The facility will be notified by certified mail of DHS's suspension of the facility's license. The facility has 15 days from receipt of the certified mail notice to request a hearing in accordance with §§79.1601-79.1614 of this title (relating to Formal Hearings). 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 DHS determines that the reason for suspension no longer exists. DHS will conduct an on-site investigation prior to making a determination. During the suspension, the license holder must return the license to DHS.

 

§90.233 Revocation

 

(a) The Texas Department of Human Services (DHS) may revoke a facility's license when:

(1) the facility's violation of the licensure rules jeopardizes the health and safety of residents; or

(2) the facility has violated the requirements of the Health and Safety Code, Chapter 252, or the rules adopted under that chapter, in either a repeated or substantial manner.

(b) In addition, DHS may revoke a license if the license holder:

(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 §90.13 of this title (relating to Applicant Disclosure Requirements) that would have been the basis to deny the license under §90.17 of this title (relating to Criteria for Denying a License or Renewal); or

(4) received monetary or other remuneration from a person or agency that furnishes services or materials to the facility or individuals for a fee.

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

(d) The facility will be notified by certified mail of DHS's 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 §90.18 of this title (relating to Informal Reconsideration). If the facility requests an informal reconsideration, DHS will give the license holder a written affirmation or reversal of the proposed action.

(e) The facility will be notified by certified mail of DHS's intent to revoke the license, including the facts or conduct alleged to warrant the revocation. The facility has 15 days from receipt of the certified mail notice to request a hearing in accordance §§79.1601-79.1614 of this title (relating to Formal Hearings). The revocation will take effect when the deadline for appeal of the revocation passes, unless the facility appeals the revocation. If the facility appeals the revocation, the status of the license holder is preserved until final disposition of the contested matter. Upon revocation, the license must be returned to DHS.

 

§90.234 Emergency License Suspension and Closing Order

 

(a) The Texas Department of Human Services (DHS) may suspend a facility's license or order an immediate closing of part of the facility if:

(1) DHS 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 resident.

(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 written notice or a later date specified in the order. Written notice includes notice by facsimile transmission.

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

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

(1) A resident's rights or freedom of choice in selecting treatment facilities will be respected.

(2) If a facility or part thereof is closed:

(A) DHS will notify the Texas Department of Mental Health and Mental Retardation (TDMHMR), 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 resident's guardian or responsible party and attending physician, advising them of the action in process;

(C) the resident or the resident's guardian or responsible person will have an opportunity to designate a preference for a specific facility or for other arrangements;

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

(E) if absolutely necessary, to prevent transport over substantial distances, DHS will grant a waiver to a receiving facility to temporarily exceed its licensed capacity, provided the health and safety of residents 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 DHS staff, until residents can be transferred to a permanent location;

(F) with each resident 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 party responsible for the resident; attending physician; Medicare and Medicaid identification number; social security number; and other identification information as deemed necessary and available;

(iii) all medication dispensed in the name of the resident for which physician's orders are current. The medication must be inventoried and transferred with the resident. Medications past an expiration date or discontinued by physician order must be inventoried for disposition in accordance with state law;

(iv) the residents' personal belongings, clothing, and toilet articles. An inventory of personal property and valuables must be made by the closing facility; and

(v) resident trust fund accounts maintained by the closing facility. All items must be properly inventoried and receipts obtained for audit purposes by the appropriate state agency;

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

(H) any return to the facility must be treated as a new admission, including, but not limited to, exchange of medical information, medications, and completion of required forms.

(e) A licensee whose facility is closed under this section, is entitled to request an administrative hearing in accordance with §§79.1601-79.1614 of this title (relating to Formal Hearings), but a hearing request does not suspend the effectiveness of the order.

 

§90.235 Referral to the Attorney General

 

(a) The Texas Department of Human Services (DHS) may petition a district court for a temporary restraining order to restrain a person from continuing a violation of the standards prescribed by this chapter if DHS finds that the violation creates an immediate threat to the health and safety of the facility's residents.

(b) A district court, on petition by DHS, may by injunction:

(1) prohibit a person from continuing a violation of the standards or licensing requirements prescribed by this chapter;

(2) restrain or prevent the establishment, conduct, management, or operation of a facility without a license issued under this chapter; or

(3) grant the injunctive relief warranted by the facts on a finding by the court that a person is violating the standards or licensing requirements prescribed by this chapter.

(c) DHS may refer a facility to the attorney general for the assessment of civil penalties under the Texas Health and Safety Code, §252.064, for a violation that threatens the health and safety of a resident.

 

§90.236 Administrative Penalties

 

(a) DADS may assess administrative penalties against a person who:

(1) violates Texas Health and Safety Code, Chapter 252, or any rule, standard, or order adopted or a license issued under such chapter;

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

(A) on an application for issuance or renewal of a license or in documentation submitted to DADS in support of the application; or

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

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

(A) a book, record, or file required to be maintained by the person; or

(B) any portion of the premises of a facility;

(4) willfully interferes with the work of a representative of DADS or the enforcement of Texas Health and Safety Code, Chapter 252;

(5) willfully interferes with a representative of DADS preserving evidence of a violation of Texas Health and Safety Code, Chapter 252, or a rule, standard, or order adopted or license issued under such chapter;

(6) fails to pay a penalty assessed by DADS under Texas Health and Safety Code, Chapter 252, not later than the 10th day after the date the assessment of the penalty becomes final;

(7) fails to submit a plan of correction to DADS within 10 working days after receiving the final statement of licensing violations; or

(8) fails to notify DADS of a change in ownership before the effective date of that change of ownership.

(b) Definitions:

(1) For purposes of this section, a "violation" is defined as any noncompliance with Texas Health and Safety Code, Chapter 252, or any rule under this chapter.

(2) For purposes of this section, "immediate and serious threat" means a situation in which there is a high probability that serious harm or injury to residents could occur at any time or has already occurred and may occur again if individuals are not protected effectively from the harm or if the threat is not removed. "Immediate and serious threat" is described in Appendix Q of the State Operations Manual, "Guidelines for Determining Immediate and Serious Threat to Patient Health and Safety."

(3) For the purposes of this section, "serious harm" is any condition or situation that could result in severe, temporary or permanent injury, or death, or harm to the mental or physical condition of an individual.

(4) For the purposes of this section, "previous history" means any violation that resulted in the recommendation of an administrative penalty documented against a facility in the 24-month period immediately preceeding the citation of the violation.

(c) Failure to meet the requirements of §90.42(c) of this chapter (relating to Standards for Facilities Serving Persons with Mental Retardation or Related Conditions) is a cause to assess an administrative penalty.

(d) When a violation cited by DADS is determined to be within the scope, severity, and description of the penalty schedules as stated in subsection (m) of this section, the violation may be cause for assessment of a penalty as described in this section and as listed in subsection (m) of this section. In determining which violations warrant penalties, DADS will consider:

(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation and the hazard of the violation to the health and safety of the clients; and

(2) whether the affected facility had identified the violation as part of its internal quality assurance process and had made appropriate progress on correction.

(e) No facility will be penalized because of a physician's or consultant's nonperformance beyond the facility's control or if documentation clearly indicates the violation is beyond the facility's control.

(f) An offense is defined as a sum of the licensure violations found during an inspection. The first offense violations carry the penalty shown in the "first offense" column under subsections (l) and (m) of this section. The second offense violations carry the penalty shown in the "second offense" column. The third offense violations carry the penalty shown in the "third offense" column. An offense is counted against the facility even if the facility corrected the prior violation and an administrative penalty was not actually imposed.

(g) The progression of offenses described in subsection (f) of this section applies to facilities regardless of license renewals; however, when a facility has not had an offense for a period of two years, the facility's next offense will be in the "first offense" column under subsections (l) and (m) of this section. A suspension of a license and subsequent reinstatement does not interrupt the progression.

(h) The administrative penalty begins on the date DADS first established the deficiency existed. Administrative penalties will not be imposed on minor infractions. Penalties will be imposed on a per diem basis for those infractions in the administrative penalty schedule, as outlined under subsection (m) of the section. If DADS determines that a violation has occurred that will result in an administrative penalty, the penalty for a facility with fewer than 60 beds will be not less than $100 or more than $1,000 for each violation. The penalty for a facility with 60 beds or more will not be less than $100 or more than $5,000 for each violation. The total amount of the penalty assessed for a violation continuing or occurring on separate days under this subsection may not exceed $5,000 for a facility with fewer than 60 beds or $25,000 for a facility with 60 beds or more.

(i) A per diem penalty ceases on the date a violation has been corrected, and the facility:

(1) notifies DADS in writing that the violation has been corrected; and

(2) provides the date of the correction; and

(3) evidences later that the violation was corrected.

(j) If DADS determines that a violation has occurred and that an administrative penalty is proposed, DADS gives written notice of the proposal to assess an administrative penalty to the person designated by the facility to receive notice. The notice will include:

(1) a brief summary of the alleged violation;

(2) a statement of the amount of the proposed penalty based on the factors listed in subsections (d), (l) and (m) of this section; and

(3) a statement of the person's right to a hearing on the occurrence of the violation, the amount of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.

(k) A facility for which an administrative penalty has been proposed may file a request for a hearing with the Health and Human Services Commission. The hearing must be requested in accordance with 1 TAC §357.484 (relating to Requests for a Hearing) except, as provided by Texas Health and Safety Code, §252.066, the facility must make a written request for a hearing within 20 calendar days after the date on which the facility receives written notice of the administrative penalty. A hearing requested under this section is governed by 1 TAC Chapter 357, Subchapter I, (relating to Hearings Under the Administrative Procedure Act).

(l) Assessments for violations warranting administrative penalties for licensed facilities, for which there is no right to correct prior to administrative penalty assessment are as follows:

(m) Assessments for violations warranting administrative penalties for licensed facilities for which there is a right to correct prior to administrative penalty assessment are as follows:

 

§90.237 Appointment of a Trustee by Agreement

 

(a) A person holding a controlling interest in a facility may, at any time, request the Texas Department of Human Services (DHS) to assume the operation of the facility through the appointment of a trustee.

(b) If DHS believes that the appointment of a trustee is desirable, DHS may enter into an agreement with the person holding the controlling interest for the appointment of the trustee to take charge of the facility.

(c) Any agreement entered into under this section must:

(1) specify all terms and conditions of the trustee's appointment and authority; and

(2) preserve all rights of the residents as granted by law.

(d) The agreement will terminate either at a time specified in the agreement or upon receipt of notice of intent to terminate sent by either party.

(e) If DHS determines that termination of the agreement by the person holding a controlling interest in the facility would not be in the best interest of the residents, DHS will petition a court for an involuntary appointment under the terms of §90.238 of this title (relating to Involuntary Appointment of a Trustee).

(f) The appointment of a trustee by agreement does not suspend the obligation of a facility to pay assessed civil money or administrative penalties.

 

§90.238 Involuntary Appointment of a Trustee

 

(a) The Texas Department of Human Services (DHS) may petition a court of competent jurisdiction for the involuntary appointment of a trustee to operate a facility if one or more of the following conditions exist:

(1) the facility is operating without a license;

(2) the facility's license has been suspended or revoked;

(3) license suspension or revocation procedures against a facility are pending and an imminent threat to the health and safety of the residents exists;

(4) an emergency exists that presents an immediate threat to the health and safety of the residents; and/or

(5) the facility is closing (whether voluntarily or through an emergency closure order) and arrangements for relocation of the residents to other licensed institutions have not been made before closure.

(b) A trustee appointed under this section is entitled to a reasonable fee as determined by the court to be paid from the Nursing and Convalescent Home trust fund.

(c) The trustee may use the emergency assistance funds in the trust fund only to alleviate an immediate threat to the health and safety of the residents, through such disbursements as payments for food; medication; sanitation services; minor repairs; supplies necessary for personal hygiene; or services necessary for the personal care, health and safety of the residents.

(d) Before emergency assistance funds may be dispersed, a court order must be entered authorizing DHS to disburse emergency assistance funds to the facility.

(e) A facility that receives emergency assistance funds under this section must reimburse DHS for the amounts received not later that one year after the date on which the funds were received by the trustee. The owner of the facility at the time the trustee was appointed is responsible for the reimbursement and must pay interest from the date the funds were disbursed on the amount outstanding at a rate equal to the rate of interest determined under Texas Civil Statutes, Article 5069-1.05, to be applicable to judgments rendered during the month in which the money was disbursed to the facility. DHS will deposit the reimbursement and the interest received under this subsection to the credit of the Nursing and Convalescent Home Trust Fund.

(f) Any amount remaining due at the end of one year becomes delinquent and will be referred to the attorney general.

(g) The Texas Department of Mental Health and Mental Retardation may determine that the facility is ineligible for a Medicaid provider contract.

 

§90.239 Notification of Closure

 

(a) In this section, the terms "close" and "closure" refer to a facility ceasing to operate. The terms do not include temporarily relocating residents of a facility.

(b) Except as provided in subsection (c) of this section, if a license holder intends to voluntarily close a facility, the license holder must, at least 60 days before the facility closes:

(1) send written notice of the license holder's intent to close the facility, including the anticipated date of closure, to:

(A) DADS; and

(B) a resident; and

(2) make reasonable efforts to send written notice of the license holder's intent to close the facility, including the anticipated date of closure to:

(A) a resident's legally authorized representative; or

(B) if the resident does not have a legally authorized representative, the resident's nearest relative.

(c) If, for reasons beyond the license holder's control, the license holder cannot provide the notice required by subsection (b) of this section at least 60 days before the license holder anticipates closing the facility, the license holder must state in the notice the reason why a shorter time period is necessary.

(d) If DADS requires a facility to close or the facility's closure is in any other way involuntary, the license holder must, immediately after becoming aware that the facility is closing:

(1) send written notice of the closure, including the anticipated date of closure, to:

(A) DADS, if DADS is not requiring the facility to close; and

(B) a resident; and

(2) make reasonable efforts to send written notice of the closure, including the anticipateddate of closure to:

(A) a resident's legally authorized representative; or

(B) if the resident does not have a legally authorized representative, the resident's nearest relative.

(e) A license holder must submit the license of a closing facility to DADS with the notice required by subsection (b)(1)(A) or (d)(1)(A) of this section. If notice is not provided in accordance with subsection (b)(1)(A) or (d)(1)(A) of this section because DADS is requiring a facility to close, the license holder must submit the license to DADS when the closure is final.

 

§90.240 Right to Correct

 

(a) Except as provided in subsection (b) of this section, before imposing an administrative penalty, DADS will provide a reasonable period of time, not less than 45 days, to correct a violation if a plan of correction is implemented. A facility may request a shorter period of time to correct the violation by submitting a specific written request for an early inspection to clear the violation. If, during the requested early inspection, DADS finds that the correction is not satisfactory, an administrative penalty may immediately be assessed from the first day of violation.

(b) DADS is not required to give a facility the right to correct a violation prior to assessing an administrative penalty if DADS determines that the violation:

(1) has resulted in serious harm to or death of a resident;

(2) constitutes a serious threat to the health or safety of a resident;

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

(4) is described in §90.236(a)(2)-(8) of this subchapter (related to Administrative Penalties).

(c) DADS may not assess an administrative penalty for a minor violation if the facility corrects the violation not later than the 46th day after the facility receives notice of the violation.

(d) If the facility reports to DADS that the violation has been corrected, DADS will inspect the correction or take any other steps necessary to confirm that the violation has been corrected and notify the facility that:

(1) the correction is satisfactory and a penalty is not assessed; or

(2) the correction is not satisfactory and a penalty is recommended.

(e) If the facility wishes to appeal the administrative penalty, the facility must file a notice to request a hearing on the violation or penalty no later than the 20th calendar day after the date on which the notice to pay an administrative penalty is received.

 

§90.241 Amelioration of Violation

 

(a) In lieu of demanding payment of an administrative penalty, the commissioner may allow the person to use, under the supervision of the Texas Department of Human Services (DHS), a portion of the penalty to ameliorate the violation or to improve services, other than administrative services, in the facility.

(b) DHS will offer amelioration to a person for a violation if DHS determines that the violation does not constitute immediate jeopardy to the health and safety of a resident. In this section, "immediate jeopardy to health and safety" means a situation in which immediate corrective action is necessary because the facility's noncompliance with one or more requirements has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.

(c) DHS will not offer amelioration to a person if

(1) the person has been charged with a violation which is subject to the right-to-correct, or

(2) DHS determines that the violation constitutes immediate jeopardy to the health and safety of a resident.

(d) DHS will offer amelioration to a person not later than the 10th day after the date the person receives from DHS a final notification of assessment of administrative penalty that is sent to the person after an informal dispute resolution process but before an administrative hearing.

(e) A person to whom amelioration has been offered must file a plan for amelioration not later than the 45th day after the date the person receives the offer of amelioration from DHS. In submitting the plan, the person must agree to waive the person's right to an administrative hearing if DHS approves the plan.

(f) At a minimum, a plan for amelioration must:

(1) propose changes to the management or operation of the facility that will improve services to or quality of care of residents,

(2) identify, through measurable outcomes, the ways in which and the extent to which the proposed changes will improve services to or quality of care of residents,

(3) establish clear goals to be achieved through the proposed changes,

(4) establish a timeline for implementing the proposed changes, and

(5) identify specific actions necessary to implement the proposed changes.

(g) DHS may require that an amelioration plan propose changes that would result in conditions that exceed the minimum requirements for facility licensure.

(h) DHS will approve or deny an amelioration plan not later than the 45th day after the date DHS receives the plan. On approval of a person's plan, DHS will deny a pending request for a hearing submitted by the person.

(i) DHS will not offer amelioration to a person:

(1) more than three times in a two-year period; or

(2) more than one time in a two-year period for the same or similar violation.

Subchapter J, Respite Care

Revision 98-1

 

 

§90.281 Generally

 

A facility licensed under this chapter may provide respite care for an individual who has a diagnosis of mental retardationor a related condition without regard to whether the individual is eligible to receive intermediate care services under federallaw, according to a plan of care as provided under the Health and Safety Code, §§252.181-252.186.

 

§90.282 Definitions

 

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearlyindicates otherwise.

  1. Plan of care — A written description of the care, training, and treatment needed by a person during respite care.
  2. Respite care — The provision by a facility to a person, for not more than two weeks for each stay in the facility, of room, board, andcare at the level ordinarily provided for permanent residents.

 

§90.283 Plan of Care

 

(a) The facility and the person arranging the care must agree on the plan of care and the plan must be filed at the facilitybefore the facility admits the person for the care.

(b) The plan of care must be signed by:

(1) a licensed physician if the person for whom the care is arranged need medical care or treatment; or

(2) the person arranging for the respite care if medical care or treatment is not needed.

(c) The facility may keep an agreed plan of care for a person for not longer than six months from the date on which it is received. After each admission, the facility shall review and update the plan of care. During that period, the facility may admit the person as frequently as is needed and as accommodations are available.

(d) The clinical record of each respite care resident must contain:

(1) general identifying information necessary to care for the resident and maintain his/her clinical record;

(2) resident assessment according to facility policy and care plan according to §90.283 of this title (relating to Plan of Care);

(3) progress notes or flow sheets which document care/services;

(4) reports of diagnostic or lab studies done during resident stay;

(5) any physician's orders given during resident stay; and

(6) discharge and readmission information based on facility policy for respite care services.

 

§90.284 Notification

 

A facility that offers respite care must notify the Texas Department of Human Services in writing that it offers respite care.

 

§90.285 Inspections

 

The Texas Department of Human Services (DHS), at the time of a licensing inspection or at other times DHS determines necessary,inspects a facility's records of respite care services, physical accommodations available for respite care, and the plan ofcare records to ensure that the respite care services comply with the licensing standards of this chapter.

 

§90.286 Suspension

 

(a) The Texas Department of Human Services (DHS) may require a facility to cease providing respite care if DHS determines thatthe respite care does not meet the standards required by this chapter and that the facility cannot comply with those standardsin the respite care it provides.

(b) DHS may suspend the license of a facility that continues to provide respite care after receiving a written order from DHSto cease, as set out in §90.232 of this title (relating to License Suspension).

 

§90.287 Licensed Capacity

 

When a facility provides respite care:

(a) the total number of individuals receiving services in the facility must not exceed the number of licensed beds; and

(b) any required staff to resident ratio will include any individual receiving respite care services regardless of the numberof hours in the facility.

Subchapter L, Provisions Applicable to Facilities Generally

Revision 12-2

 

 

§90.321 Determination of Employability

 

(a) A facility must comply with Texas Health and Safety Code, Chapter 250 (relating to Nurse Aide Registry and Criminal History Checks of Employees and Applicants for Employment in Certain Facilities Serving the Elderly or Persons with Disabilities).

(b) Before a facility hires an applicant for employment, the facility must search the employee misconduct registry (EMR) established under the Health and Safety Code, §253.007, and the nurse aide registry (NAR) maintained under the Omnibus Budget Reconciliation Act of 1987 (Public Law Number 100-203) to determine if the applicant is designated in the EMR or NAR as unemployable. The EMR and NAR may be accessed on the DADS Internet website.

(c) In addition to the initial search of the EMR and NAR, a facility must conduct a search of the EMR and NAR to determine if the employee is designated in either registry as unemployable, as follows:

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

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

(d) A facility must keep a copy of the results of the initial and annual searches of the EMR and NAR in the employee's personnel file and make it available to DADS upon request.

(e) A facility is prohibited from hiring or continuing to employ a person who is listed in the EMR or NAR as unemployable.

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

 

§90.323 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) The Long Term Care-Regulatory, Texas Department of Human Services (DHS), 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 Long Term Care-Regulatory, Texas Department of Human Services, 8407 Wall Street, Austin, Texas 78754;

(2) the requestor must identify himself;

(3) the requestor must give reasonable prior notice of the time for inspection and/or copying of records;

(4) the requestor must specify the records requested;

(5) on written applications, if DHS is unable to ascertain the records being requested, DHS may return the written application to the requestor for clarification; and

(6) DHS 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-identifica tion or preparation of the records for inspection, DHS will so advise the requestor 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 DHS offices.

(e) Records maintained by Long Term Care-Regulatory are open to the public, with the following exceptions:

(1) incomplete reports, audits, evaluations, and investigations made of, for, or by DHS are confidential;

(2) all reports, records, and working papers used or developed by DHS in an investigation of reports of abuse and neglect are confidential, and may be released to the public only as follows:

(A) completed written investigation reports are open to the public, provided the report is de-identified. The process of de-identification means removing all names and other personally identifiable data, including any information from witnesses and others furnished to DHS as part of the investigation; and

(B) if DHS receives written authorization from a facility resident or the resident's legal representative regarding an investigation of abuse or neglect involving that resident, DHS will release the completed investigation report without removing the resident's name. The authorization must:

(i) be signed and dated within six months of the request or state a length of time the authorization is valid;

(ii) detail the information to be released;

(iii) identify to whom the information can be released; and

(iv) release DHS from all liability for complying with the authorization.

(3) all names and related personal, medical, or other identifying information about a resident are confidential;

(4) information about any identifiable person which is defamatory or an invasion of privacy is confidential;

(5) information identifying complainants or informants is confidential;

(6) itineraries of surveys and inspections are confidential;

(7) other information that is excepted from release by the Government Code, Chapter 552, is not available to the public; and

(8) to implement this subsection, DHS may not alter or de-identify original records. Instead, DHS will make available for public review or release only a properly de-identified copy of the original record.

(f) Long Term Care-Regulatory will charge for copies of records upon request.

(1) If the requestor wants to inspect records, the requestor will specify the records to be inspected. DHS will make no charge for this service, unless the director of Long Term Care-Regulatory determines a charge is appropriate based on the nature of the request.

(2) If the requestor wants copies of a record, the requestor will specify in writing the records to be copied on an appropriate DHS form, and DHS will complete the form by specifying the charge for the records, which the requestor must pay in advance. Checks and other instruments of payment must be made payable to the Texas Department of Human Services.

(3) Any expenses for standard-size copies incurred in the reproduction, preparation, or retrieval of records must be borne by the requestor on a cost basis in accordance with costs established by the State Purchasing and General Services Commission or DHS for office machine copies.

(4) For documents that are mailed, DHS 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.

 

§90.324 Emergency Medication Kit

 

Stocks of inventoried emergency medications may be kept in facilities.

(1) Emergency medication kits must be maintained in compliance with the Texas State Board of Pharmacy rules in 22 TAC §291.20 (relating to Remote Pharmacy Services).

(2) Facilities must have contracts with the provider pharmacy that provides the emergency medication kit. The contract must outline the services to be provided by the pharmacy and the responsibilities and accountabilities of each party in fulfilling the terms of the contract in compliance with federal and state laws and regulations.

 

§90.325 Controlled Substances

 

The facility must adhere to the following procedures governing the use of drugs covered by the Controlled Substances Act.

(1) A separate record must be maintained for each drug covered by Schedules II, III, and IV of the Controlled Substances Act, Health and Safety Code, Chapter 481.

(2) The record for each drug must contain the prescription number, name, and strength of drug, date received by the facility, date and time administered, name of resident, dose, physician's name, signature of person administering dose, and original amount dispensed with the balance verifiable by drug inventory at every shift change.

(3) Schedule V drugs are exempt from the requirements in paragraphs (1) and (2) of this section.

 

§90.326 Required Postings

 

A facility must prominently post for display in an area of the facility that is readily available to residents, employees, and visitors:

(1) the license issued under this chapter;

(2) a notice prescribed by DADS describing complaint procedures;

(3) a notice providing instructions for reporting an allegation of abuse, neglect, or exploitation to DFPS;

(4) 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;

(5) a copy of the most recent inspection report relating to the facility; and

(6) a notice, in English and Spanish, stating that employees, other staff, residents, volunteers, and family members and guardians of residents are protected from discrimination or retaliation as specified in the Health and Safety Code, §§252.132-252.133 (relating to Suit for Retaliation and Suit for Retaliation Against Resident).

 

§90.327 Notice of Changes in Key Personnel

 

A facility must notify the department no later than 30 days after the date of hire of the administrator.

 

§90.328 Retaliation Prohibited

 

A facility must not discharge or otherwise retaliate against:

(1) an employee, resident, or other person because the employee, resident, or other person files a complaint, presents a grievance, or otherwise provides in good faith information relating to the misuse of restraint or seclusion at the facility; or

(2) a resident because someone on behalf of the resident files a complaint, presents a grievance, or otherwise provides in good faith information relating to the misuse of restraint or seclusion at the facility.

 

§90.329 Vaccine Preventable Diseases

 

(a) Effective September 1, 2012, a facility must develop and implement a policy to protect a resident from vaccine preventable diseases in accordance with Texas Health and Safety Code, Chapter 224.

(b) The policy must:

(1) require an employee or a contractor providing direct care to a resident to receive vaccines for the vaccine preventable diseases specified by the facility based on the level of risk the employee or contractor presents to residents by the employee's or contractor's routine and direct exposure to residents;

(2) specify the vaccines an employee or contractor is required to receive in accordance with paragraph (1) of this subsection;

(3) include procedures for the facility to verify that an employee or contractor has complied with the policy;

(4) include procedures for the facility to exempt an employee or contractor from the required vaccines for the medical conditions identified as contraindications or precautions by the Centers for Disease Control and Prevention;

(5) for an employee or contractor who is exempt from the required vaccines, include procedures the employee or contractor must follow to protect residents from exposure to disease, such as the use of protective equipment, such as gloves and masks, based on the level of risk the employee or contractor presents to residents by the employee's or contractor's routine and direct exposure to residents;

(6) prohibit discrimination or retaliatory action against an employee or contractor who is exempt from the required vaccines for the medical conditions identified as contraindications or precautions by the Centers for Disease Control and Prevention, except that required use of protective medical equipment, such as gloves and masks, may not be considered retaliatory action;

(7) require the facility to maintain a written or electronic record of each employee's or contractor's compliance with or exemption from the policy;

(8) include disciplinary actions the facility may take against an employee or contractor who fails to comply with the policy.

(c) The policy may:

(1) include procedures for an employee or contractor to be exempt from the required vaccines based on reasons of conscience, including religious beliefs; and

(2) prohibit an employee or contractor who is exempt from the required vaccines from having contact with residents during a public health disaster, as defined in Texas Health and Safety, §81.003 (relating to Definitions).

Appendices

Revisions

Revision 18-1, Wheelchair Self Release Seat Belts

Revision Notice 18-1, Effective January 2, 2018

 

Subchapter C, Standards for Licensure, adds §90.45, Wheelchair Self Release Seat Belts.

Revision 17-1, Change of Ownership and Life Safety Code

Revision 17-1; Effective October 12, 2017

 

Amends Subchapter A, §90.3, Definitions, for terms (10) Change of ownership, (11) CMS, (13) controlling person of an applicant, license holder or facility and (51) QIDP.  Clarifies that (38) Life Safety Code is synonymous with NFPA 101 and adds a definition of the acronym (45) NFPA. Adds terms (18) direct ownership interest, (19) disclosable interest, and (29) indirect ownership interest, (46) NFPA 99 and (47) NFPA 101 to specify the edition of the codes adopted by CMS, and to explain how to obtain a copy of NFPA 99 and NFPA 101.   

Amends Subchapter B, §90.16, Change of Ownership, to clarify that a license holder will not be required to apply for a new license if the ownership structure of the license holder changes but the license holder is the same entity, as evidenced by having the same federal tax identification number. The amended rules allow HHSC to conduct a desk review instead of an on-site health survey if the applicant for a license resulting from a change of ownership meets certain requirements. 

Amends Subchapter C, §90.50, Emergency Preparedness and Response, to replace the term “Life Safety Code, 2000 Edition” with a reference to NFPA 101. Additionally, the amendment adds a new requirement that a large facility’s fire safety plan must include a provision for an emergency phone call to the fire department in addition to any automatic notification.

Amends Subchapter D, §90.61, Introduction, Application, and General Requirements for Facilities Serving Persons with Intellectual Disability or Related Conditions, to replace the term “Life Safety Code, 2000 Edition” with a reference to NFPA 101.  The amendment changes dates in the descriptions of “new construction” and “existing facility.” The amendment requires an ICF/IID to comply with a Tentative Interim Agreement issued by the NFPA for any of the NFPA publications with which an ICF/IID is required to comply. The amendment also includes a list of Tentative Interim Agreements that have been issued for NFPA 101 and NFPA 99.

Amends Subchapter D, §90.74, Safety Operations, to use the newly defined acronym NFPA to refer to a publication. Additionally, the amendment removes a reference to the 2000 edition of NFPA 101 to be consistent with the definition of NFPA 101.

Revision 16-2, Trauma-Informed Care Training

Revision 16-2; Effective April 27, 2016

Updates §90.3, Definitions, adding wording to (20) Facility, and adds (28) IPP – Individual program plan.

Adds §90.44, Trauma-Informed Care Training.

Revision 16-1, Notice of Closure

Revision 16-1; Effective April 17, 2016

Updates §90.239, Notification of Closure.

Contact Us

For questions about the Licensing Standards for Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions (ICFs/IID) Handbook, email: IcfRules@hhsc.state.tx.us

For technical or accessibility issues with this handbook, email: Editorial_Services@hhsc.state.tx.us