Nursing Facility Requirements for Licensure and Medicaid Certification Handbook

NFRLMC, Subchapter A, Basis and Scope

 

 

Revision 07-3

 

§19.1 Basis and Scope

 

(a) Basis in legislation. The Nursing Facility Requirements for Licensure and Medicaid Certification specify requirements of federal and state laws and regulations governing licensed nursing facilities and the Title XIX Nursing Facilities vendor program administered by the Texas Department of Human Services (DHS) in cooperation with other federal and state agencies. If there is a conflict between material in these requirements and the laws or regulations governing the program, the latter are controlling. It is the intent of the Texas Legislature that rules adopted under §242 of the Health and Safety Code may be more stringent than the standards imposed by federal law for certification for participation in the state Medicaid program. The rules and standards may not be less stringent than the Medicaid certification standards imposed under the Omnibus Budget Reconciliation Act of 1987.
(b) Scope. The Nursing Facility Requirements for Licensure and Medicaid Certification contain the requirements that an institution must meet in order to be licensed as a nursing facility and also to qualify to participate in the Medicaid program. The requirements serve as a basis for survey activities for licensure and certification.

(1) Certain requirements are specific to Medicaid-certified facilities and are so designated. The Medicaid-specific requirements apply to all residents, including, but not limited to private pay, Medicaid applicants and recipients, VA patients, and Medicare recipients, who are admitted to and reside in a Medicaid-certified facility or a Medicaid-certified distinct part of a facility.
(2) Additional Requirements for facilities or distinct parts of facilities that are certified for Medicare-only participation are in Chapter 42, Code of Federal Regulations, §§483.5 - 483.75.
(3) These requirements do not apply to skilled nursing facilities (SNFs) licensed under the Health and Safety Code, Chapter 241, participating only in the Medicare program.
(4) Additional documents that a facility may need for reference include, but are not limited to:

(A) Medication Aide Rules (DHS);
(B) Nurse Aide Training Rules (DHS);
(C) Nurse Aide Training Manual (DHS);
(D) Occupational Safety and Health Administration (OSHA) rules and guidelines;
(E) rules and regulations for the Control of Communicable Diseases (TDH);
(F) Medical Waste Regulation in Texas (Publication RG-1, Texas Natural Resource Conservation Commission);
(G) Nurse Practice Act and Licensed Vocational Nurse Act;
(H) Food Establishment Rules (TDH);
(I) Centers for Disease Control:

(i) Handwashing Guidelines;
(ii) Prevention of Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Health-Care and Public Safety Workers;
(iii) Guidelines for Isolation Precautions in Hospitals and Infection Control in Hospital Personnel;
(iv) Recommendations for Preventing Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Patients During Exposure-Prone Invasive Procedures; and
(v) Prevention and Control of Tuberculosis in Facilities Providing Long Term Care to the Elderly;

(J) §§96.1-96.9 of this title (relating to Certification of Long Term Care Facilities);
(K) Methicillin-Resistant Staphylococcus Aureus: A Protocol for Infection Control (TDH); and
(L) HIV/AIDS Model Workplace Guidelines (TDH).

NFRLMC Subchapter B, Definitions

Revision 18-3

 

§19.101 Definitions

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

 

(1) Abuse — Negligent or willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical or emotional harm or pain to a resident; or sexual abuse, including involuntary or nonconsensual sexual conduct that would constitute an offense under Penal Code §21.08 (indecent exposure) or Penal Code Chapter 22 (assaultive offenses), sexual harassment, sexual coercion, or sexual assault.
(2) Act — Chapter 242 of the Texas Health and Safety Code.
(3) Activities assessment — See Comprehensive Assessment and Comprehensive Care Plan.
(4) Activities director — The qualified individual appointed by the facility to direct the activities program as described in §19.702 of this chapter (relating to Activities).
(5) Addition — The addition of floor space to an institution.
(6) Administrator — Licensed nursing facility administrator.
(7) Admission MDS assessment — An MDS assessment that determines a recipient's initial determination of eligibility for medical necessity for admission into the Texas Medicaid Nursing Facility Program.
(8) Advanced practice registered nurse — A person licensed by the Texas Board of Nursing as an advanced practice registered nurse.
(9) Affiliate — With respect to a:

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

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

(10) Agent — An adult to whom authority to make health care decisions is delegated under a durable power of attorney for health care.
(11) Alzheimer’s disease and related disorders — Alzheimer’s disease and any other irreversible dementia as described by the Centers for Disease Control and Prevention or the most current edition of the Diagnostic and Statistical Manual of Mental Disorders.
(12) Applicant — A person or governmental unit, as those terms are defined in the Texas Health and Safety Code, Chapter 242, applying for a license under that chapter.
(13) APA — The Administrative Procedure Act, Texas Government Code, Chapter 2001.
(14) Attending physician — A physician, currently licensed by the Texas Medical Board, who is designated by the resident or responsible party as having primary responsibility for the treatment and care of the resident.
(15) Authorized electronic monitoring — The placement of an electronic monitoring device in a resident's room and using the device to make tapes or recordings after making a request to the facility to allow electronic monitoring.
(16) Barrier precautions — Precautions including the use of gloves, masks, gowns, resuscitation equipment, eye protectors, aprons, face shields, and protective clothing for purposes of infection control.
(17) Care and treatment — Services required to maximize resident independence, personal choice, participation, health, self-care, psychosocial functioning and reasonable safety, all consistent with the preferences of the resident.
(18) Certification — The determination by HHSC that a nursing facility meets all the requirements of the Medicaid or Medicare programs.
(19) Certified Ombudsman — Has the meaning given in 26 TAC §88.2 (relating to Definitions).
(20) 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.
(21) CFR — Code of Federal Regulations.
(22) CMS — Centers for Medicare & Medicaid Services.
(23) Complaint — Any allegation received by HHSC other than an incident reported by the facility. Such allegations include, but are not limited to, abuse, neglect, exploitation, or violation of state or federal standards.
(24) Completion date — The date an RN assessment coordinator signs an MDS assessment as complete.
(25) Comprehensive assessment — An interdisciplinary description of a resident's needs and capabilities including daily life functions and significant impairments of functional capacity, as described in §19.801(2) of this chapter (relating to Resident Assessment).
(26) Comprehensive care plan — A plan of care prepared by an interdisciplinary team that includes measurable short-term and long-term objectives and timetables to meet the resident's needs developed for each resident after admission. The plan addresses at least the following needs: medical, nursing, rehabilitative, psychosocial, dietary, activity, and resident's rights. The plan includes strategies developed by the team, as described in §19.802(b)(2) of this chapter (relating to Comprehensive Care Plans), consistent with the physician's prescribed plan of care, to assist the resident in eliminating, managing, or alleviating health or psychosocial problems identified through assessment. Planning includes:

(A) goal setting;
(B) establishing priorities for management of care;
(C) making decisions about specific measures to be used to resolve the resident's problems; and
(D) assisting in the development of appropriate coping mechanisms.

(27) Controlled substance — A drug, substance, or immediate precursor as defined in the Texas Controlled Substance Act, Texas Health and Safety Code, Chapter 481, or the Federal Controlled Substance Act of 1970, Public Law 91-513.
(28) Controlling person — A person with the ability, acting alone or in concert with others, to directly or indirectly, influence, direct, or cause the direction of the management, expenditure of money, or policies of a nursing facility or other person. A controlling person does not include a person, such as an employee, lender, secured creditor, or landlord, who does not exercise any influence or control, whether formal or actual, over the operation of a facility. A controlling person includes:

(A) a management company, landlord, or other business entity that operates or contracts with others for the operation of a nursing facility;
(B) any person who is a controlling person of a management company or other business entity that operates a nursing facility or that contracts with another person for the operation of a nursing facility;
(C) an officer or director of a publicly traded corporation that is, or that controls, a facility, management company, or other business entity described in subparagraph (A) of this paragraph but does not include a shareholder or lender of the publicly traded corporation; and
(D) any other individual who, because of a personal, familial, or other relationship with the owner, manager, landlord, tenant, or provider of a nursing facility, is in a position of actual control or authority with respect to the nursing facility, without regard to whether the individual is formally named as an owner, manager, director, officer, provider, consultant, contractor, or employee of the facility.

(29) Covert electronic monitoring — The placement and use of an electronic monitoring device that is not open and obvious, and the facility and HHSC have not been informed about the device by the resident, by a person who placed the device in the room, or by a person who uses the device.
(30) DADS — The term referred to the Department of Aging and Disability Services; it now refers to HHSC.
(31) Dangerous drugs — Any drug as defined in the Texas Health and Safety Code, Chapter 483.
(32) Dentist — A practitioner licensed to practice dentistry by the Texas State Board of Dental Examiners.
(33) Department — The Health and Human Services Commission, as its successor agency.
(34) DHS — This term referred to the Texas Department of Human Services; it now refers to HHSC, unless the context concerns an administrative hearing. Administrative hearings were formerly the responsibility of DHS; they now are the responsibility of the HHSC.
(35) Dietitian — A qualified dietitian is one who is qualified based upon either:

(A) registration by the Commission on Dietetic Registration of the Academy of Nutrition and Dietetics; or
(B) licensure, or provisional licensure, as a dietitian under Texas Occupations Code, Chapter 701 and one year of supervisory experience in dietetic service of a a health care facility.

(36) Direct care by licensed nurses — Direct care consonant with the physician's planned regimen of total resident care includes:

(A) assessment of the resident's health care status;
(B) planning for the resident's care;
(C) assignment of duties to achieve the resident's care;
(D) nursing intervention; and
(E) evaluation and change of approaches as necessary.

(37) Direct ownership interest — Ownership of equity in the capital, stock, or profits of, or a membership interest in, an applicant or license holder.
(38) Disclosure interest — Five percent or more direct or indirect ownership interest ina an applicant or license holder.
(39) Distinct part — That portion of a facility certified to participate in the Medicaid Nursing Facility program.
(40) Drug (also referred to as medication) — Any of the following:

(A) any substance recognized as a drug in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia 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 body of man; 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.

(41) Electronic monitoring device — Video surveillance cameras and audio devices installed in a resident's room, designed to acquire communications or other sounds that occur in the room. An electronic, mechanical, or other device used specifically for the nonconsensual interception of wire or electronic communication is excluded from this definition.
(42) Emergency — A sudden change in a resident's condition requiring immediate medical intervention.
(43) Executive Commissioner — The executive commissioner of the Health and Human Services Commission.
(44) Exploitation — The illegal or improper act or process of a caregiver, family member, or other individual who has an ongoing relationship with a resident using the resources of the resident for monetary or personal benefit, profit, or gain without the informed consent of the resident.
(45) Exposure (infections) — The direct contact of blood or other potentially infectious materials of one person with the skin or mucous membranes of another person. Other potentially infectious materials include the following human body fluids: semen, vaginal secretions, cerebrospinal fluid, peritoneal fluid, amniotic fluid, saliva in dental procedures, and body fluid that is visibly contaminated with blood and all body fluids when it is difficult or impossible to differentiate between body fluids.
(46) Facility — Unless otherwise indicated, a facility is an institution that provides organized and structured nursing care and service and is subject to licensure under Texas Health and Safety Code, Chapter 242.

(A) For Medicaid, a facility is a nursing facility which meets the requirements of §1919(a) - (d) of the Social Security Act. A facility may not include any institution that is for the care and treatment of mental diseases except for services furnished to individuals age 65 and over and who are eligible as defined in Chapter 17 of this title (relating to Preadmission Screening and Resident Review (PASRR)).
(B) For Medicare and Medicaid purposes (including eligibility, coverage, certification, and payment), the "facility" is always the entity which participates in the program, whether that entity is comprised of all of, or a distinct part of, a larger institution.
(C) "Facility" is also referred to as a nursing home or nursing facility. Depending on context, these terms are used to represent the management, administrator, or other persons or groups involved in the provision of care of the resident; or to represent the physical building, which may consist of one or more floors or one or more units, or which may be a distinct part of a licensed hospital.

(47) Family council — A group of family members, friends, or legal guardians of residents, who organize and meet privately or openly.
(48) Family representative — An individual appointed by the resident to represent the resident and other family members, by formal or informal arrangement.
(49) Fiduciary agent — An individual who holds in trust another's monies.
(50) Free choice — Unrestricted right to choose a qualified provider of services.
(51) Goals — Long-term: general statements of desired outcomes. Short-term: measurable time-limited, expected results that provide the means to evaluate the resident's progress toward achieving long-term goals.
(52) Governmental unit — A state or a political subdivision of the state, including a county or municipality.
(53) Health care provider — An individual, including a physician, or facility licensed, certified, or otherwise authorized to administer health care, in the ordinary course of business or professional practice.
(54) Hearing — A contested case hearing held in accordance with the Administrative Procedure Act, Texas Government Code, Chapter 2001, and the formal hearing procedures in 1 TAC Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act) and Chapter 91 of this title (relating to Hearings Under the Administrative Procedure Act).
(55) HHSC — The Texas Health and Human Services Commission.
(56) HIV — Human Immunodeficiency Virus.
(57) Incident — An abnormal event, including accidents or injury to staff or residents, which is documented in facility reports. An occurrence in which a resident may have been subject to abuse, neglect, or exploitation must also be reported to HHSC.
(58) Indirect ownership interest — Any ownership or membership interest in a person that has a direct ownership interest in an applicant or license holder.
(59) Infection control — A program designed to prevent the transmission of disease and infection in order to provide a safe and sanitary environment.
(60) Inspection — Any on-site visit to or survey of an institution by HHSC for the purpose of licensing, monitoring, complaint investigation, architectural review, or similar purpose.
(61) Interdisciplinary care plan — See the definition of "comprehensive care plan."
(62) Involuntary seclusion — Separation of a resident from others or from the resident's room or confinement to the resident's room, against the resident's will or the will of a person who is legally authorized to act on behalf of the resident. Monitored separation from other residents is not involuntary seclusion if the separation is a therapeutic intervention that uses the least restrictive approach for the minimum amount of time, not exceed to 24 hours, until professional staff can develop a plan of care to meet the resident's needs.
(63) IV — Intravenous.
(64) Legend drug or prescription drug — Any drug that requires a written or telephonic order of a practitioner before it may be dispensed by a pharmacist, or that may be delivered to a particular resident by a practitioner in the course of the practitioner's practice.
(65) License holder —  A person that holds a license to operate a facility.
(66) Licensed health professional — A physician; physician assistant; advanced practice registered nurse; physical, speech, or occupational therapist; pharmacist; physical or occupational therapy assistant; registered professional nurse; licensed vocational nurse; licensed dietitian; or licensed social worker.
(67) Licensed nursing home (facility) administrator — A person currently licensed by HHSC in accordance with Chapter 18 of this title (relating to Nursing Facility Administrators).
(68) Licensed vocational nurse (LVN) — A nurse who is currently licensed by the Texas Board of Nursing as a licensed vocational nurse.
(69) Life Safety Code — NFPA 101.
(70) Life safety features — Fire safety components required by NFPA 101, including building construction, fire alarm systems, smoke detection systems, interior finishes, sizes and thicknesses of doors, exits, emergency electrical systems, and sprinkler systems.
(71) Life support — Use of any technique, therapy, or device to assist in sustaining life. (See §19.419 of this chapter (relating to Advance Directives)).
(72) Local authorities — Persons, including, but not limited to, local health authority, fire marshal, and building inspector, who may be authorized by state law, county order, or municipal ordinance to perform certain inspections or certifications.
(73) Local health authority — The physician appointed by the governing body of a municipality or the commissioner's court of the county to administer state and local laws relating to public health in the municipality's or county's jurisdiction as defined in Texas Health and Safety Code, §121.021.
(74) Long-term care-regulatory — HHSC Regulatory Services Division, which is responsible for surveying nursing facilities to determine compliance with regulations for licensure and certification for Title XIX participation.
(75) Major injury — An injury that qualifies as a a major injury under NFPA 99.
(76) Manager — A person, other than a licensed nursing home administrator, having a contractual relationship to provide management services to a facility.
(77) 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 do not include contracts solely for maintenance, laundry, or food service.
(78) Managing local ombudsman — Has the meaning given in 26 TAC §88.2 (relating to Definitions).
(79) MDS — Minimum data set. See Resident Assessment Instrument (RAI).
(80) MDS nurse reviewer — A registered nurse employed by HHSC to monitor the accuracy of the MDS assessment submitted by a Medicaid-certified nursing facility.
(81) Medicaid applicant —A person who requests the determination of eligibility to become a Medicaid recipient.
(82) Medicaid nursing facility vendor payment system — Electronic billing and payment system for reimbursement to nursing facilities for services provided to eligible Medicaid recipients.
(83) Medicaid recipient — A person who meets the eligibility requirements of the Title XIX Medicaid program, is eligible for nursing facility services, and resides in a Medicaid-participating facility.
(84) Medical director — A physician licensed by the Texas Medical Board, who is engaged by the nursing home to assist in and advise regarding the provision of nursing and health care.
(85) Medical power of attorney — The legal document that designates an agent to make treatment decisions if the individual designator becomes incapable.
(86) Medical-social care plan — See Interdisciplinary Care Plan.
(87) Medically related condition — An organic, debilitating disease or health disorder that requires services provided in a nursing facility, under the supervision of licensed nurses.
(88) Medication aide — A person who holds a current permit issued under the Medication Aide Training Program as described in Chapter 95 of this title (relating to Medication Aides – Program Requirements) and acts under the authority of a person who holds a current license under state law which authorizes the licensee to administer medication.
(89) Misappropriation of funds — The taking, secretion, misapplication, deprivation, transfer, or attempted transfer to any person not entitled to receive any property, real or personal, or anything of value belonging to or under the legal control of a resident without the effective consent of the resident or other appropriate legal authority, or the taking of any action contrary to any duty imposed by federal or state law prescribing conduct relating to the custody or disposition of property of a resident.
(90) MN — Medical Necessity. A determination, made by physicians and registered nurses who are employed by or contract with the state Medicaid claims administrator, that a recipient requires the services of a licensed nurse in an institutional setting to carry out a physician’s planned regimen for total care. A recipient’s need for custodial care in a 24-hour institutional setting does not constitute medical necessity.
(91) Neglect — The failure to provide goods or services, including medical services that are necessary to avoid physical or emotional harm, pain, or mental illness.
(92) NFPA — National Fire Protection Association.
(93) NFPA 99 — NFPA 99, Health Care Facilities Code, 2012 Edition.
(94) NFPA 101 — NFPA 101, Life Safety Code, 2012 Edition.
(95) NHIC — This term referred to the National Heritage Insurance Corporation. It now refers to the state Medicaid claims administrator.
(96) Nonnursing personnel — Persons not assigned to give direct personal care to residents; including administrators, secretaries, activities directors, bookkeepers, cooks, janitors, maids, laundry workers, and yard maintenance workers.
(97) Nurse aide — An individual who provides nursing or nursing-related services to residents in a facility under the supervision of a licensed nurse. This definition does not include an individual who is a licensed health professional, a registered dietitian, or someone who volunteers such services without pay. A nurse aide is not authorized to provide nursing or nursing-related services for which a license or registration is required under state law. Nurse aides do not include those individuals who furnish services to residents only as paid feeding assistants.
(98) Nurse aide trainee — An individual who is attending a program teaching nurse aide skills.
(99) Nurse practitioner — An advanced practice registered nurse.
(100) Nurses' station — A nurses' station is an area designed as the focal point on all shifts for the administration and supervision of resident-care activities for a designed number of resident bedrooms.
(101) Nursing assessment — See definition of "comprehensive assessment" and "comprehensive care plan."
(102) Nursing care — Services provided by nursing personnel which include, but are not limited to, observation; promotion and maintenance of health; prevention of illness and disability; management of health care during acute and chronic phases of illness; guidance and counseling of individuals and families; and referral to physicians, other health care providers, and community resources when appropriate.
(103) Nursing facility/home — An institution that provides organized and structured nursing care and service, and is subject to licensure under Texas Health and Safety Code, Chapter 242. The nursing facility may also be certified to participate in the Medicaid Title XIX program. Depending on context, these terms are used to represent the management, administrator, or other persons or groups involved in the provision of care to the residents; or to represent the physical building, which may consist of one or more floors or one or more units, or which may be a distinct part of a licensed hospital.
(104) Nursing facility/home administrator — See the definition of "licensed nursing home (facility) administrator."
(105) Nursing personnel — Persons assigned to give direct personal and nursing services to residents, including registered nurses, licensed vocational nurses, nurse aides, and medication aides. Unlicensed personnel function under the authority of licensed personnel.
(106) Objectives — See definition of "goals."
(107) OBRA — Omnibus Budget Reconciliation Act of 1987, which includes provisions relating to nursing home reform, as amended.
(108) Ombudsman intern — Has the meaning given in 26 TAC §88.2 (relating to Definitions).
(109) Ombudsman Program — Has the meaning givien in 26 TAC §88.2 (relating to Definitions).
(110) Optometrist — An individual with the profession of examining the eyes for defects of refraction and prescribing lenses for correction who is licensed by the Texas Optometry Board.
(111) Paid feeding assistant — An individual who meets the requirements of §19.1113 of this chapter (relating to Paid Feeding Assistants) and who is paid to feed residents by a facility or who is used under an arrangement with another agency or organization.
(112) PASARR or PASRR — Preadmission Screening and Resident Review.
(113) Palliative Plan of Care — Appropriate medical and nursing care for residents with advanced and progressive diseases for whom the focus of care is controlling pain and symptoms while maintaining optimum quality of life.
(114) Patient care-related electrical appliance — An electrical appliance that is intended to be used for diagnostic, therapeutic, or monitoring purposes in a patient care area, as defined in Standard 99 of the National Fire Protection Association.
(115) Person — An individual, firm, partnership, corporation, association, joint stock company, limited partnership, limited liability company, or any other legal entity, including a legal successor of those entities.
(116) Pharmacist — An individual, licensed by the Texas State Board of Pharmacy to practice pharmacy, who prepares and dispenses medications prescribed by a practitioner.
(117) Physical restraint — See Restraints (physical).
(118) Physician — A doctor of medicine or osteopathy currently licensed by the Texas Medical Board.
(119) Physician assistant (PA) — An individual who is licensed as a physican assistant under Texas Occupations Code, Chapter 204.
(120) Podiatrist — A practitioner whose profession encompasses the care and treatment of feet who is licensed by the Texas State Board of Podiatric Medical Examiners.
(121) Poison — Any substance that federal or state regulations require the manufacturer to label as a poison and is to be used externally by the consumer from the original manufacturer's container. Drugs to be taken internally that contain the manufacturer's poison label, but are dispensed by a pharmacist only by or on the prescription order of a physician, are not considered a poison, unless regulations specifically require poison labeling by the pharmacist.
(122) Practitioner — A physician, podiatrist, dentist, or an advanced practice nurse or physician assistant to whom a physician has delegated authority to sign a prescription order, when relating to pharmacy services.
(123) Private and umimpeded access — Access to enter a facility, or communicate with a resident outside of the hearing or view of others, without interference or obstruction from facility employees, volunteers, or contractors.
(124) PRN (pro re nata) — As needed.
(125) Provider — The individual or legal business entity that is contractually responsible for providing Medicaid services under an agreement with HHSC.
(126) Psychoactive drugs — Drugs prescribed to control mood, mental status, or behavior.
(127) Qualified mental health professional — community services – Has the meaning given in 25 TAC §412.303 (relating to Definitions).
(128) Qualified surveyor — An employee of HHSC who has completed state and federal training on the survey process and passed a federal standardized exam.
(129) Quality assessment and assurance committee — A group of health care professionals in a facility who develop and implement appropriate action to identify and rectify substandard care and deficient facility practice.
(130) Quality-of-care monitor — A registered nurse, pharmacist, or dietitian employed by HHSC who is trained and experienced in long-term care facility regulation, standards of practice in long-term care, and evaluation of resident care, and functions independently of HHSC Regulatory Services Division.
(131) Quality measure report — A report that provides information derived from an MDS that provides a numeric value to quality indicators. This data is available to the public as part of the Nursing Home Quality Initiative (NHQI), and is intended to provide objective measures for consumers to make informed decisions about the quality of care in a nursing facility.
(132) Recipient — Any individual residing in a Medicaid certified facility or a Medicaid certified distinct part of a facility whose daily vendor rate is paid by Medicaid.
(133) Rehabilitative services — Rehabilitative therapies and devices provided to help a person regain, maintain, or prevent deterioration of a skill or function that has been acquired but then lost or impaired due to illness, injury, or disabling condition. The term includes physical and occupational therapy, speech-language pathology, and psychiatric rehabilitation services.
(134) Reimbursement methodology — The method by which HHSC determines nursing facility per diem rates.
(135) Representative payee — A person designated by the Social Security Administration to receive and disburse benefits, act in the best interest of the beneficiary, and ensure that benefits will be used according to the beneficiary's needs.
(136) Resident — Any individual residing in a nursing facility.
(137) Resident group — A group or council of residents who meet regularly to:

(A) discuss and offer suggestions about the facility policies and procedures affecting residents' care, treatment, and quality of life;
(B) plan resident activities;
(C) participate in educational activities; or
(D) for any other purpose.

(138) Responsible party — An individual authorized by the resident to act for him as an official delegate or agent. Responsible party is usually a family member or relative, but may be a legal guardian or other individual. Authorization may be in writing or may be given orally
(139) Restraint 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.

(140) Restraints (chemical) — Psychoactive drugs administered for the purposes of discipline, or convenience, and not required to treat the resident's medical symptoms.
(141) Restraints (physical) — Any manual method, or physical or mechanical device, material or equipment attached, or adjacent to the resident's body, that the individual cannot remove easily which restricts freedom of movement or normal access to one's body. The term includes a restraint hold.
(142) RN — Registered Nurse – An individual currently licensed by the Texas Board of Nursing as a registered nurse.
(143) RN assessment coordinator — A registered nurse who signs and certifies a comprehensive assessment of a resident's needs, using the RAI, including the MDS, as specified by HHSC.
(144) RUG — Resource Utilization Group. A categorization method, consisting of 34 categories based on the MDS, that is used to determine a recipient's service and care requirements and to determine the daily rate HHSC pays a nursing facility for services provided to the recipient.
(145) Secretary — Secretary of the U.S. Department of Health and Human Services.
(146) Services required on a regular basis — Services which are provided at fixed or recurring intervals and are needed so frequently that it would be impractical to provide the services in a home or family setting. Services required on a regular basis include continuous or periodic nursing observation, assessment, and intervention in all areas of resident care.
(147) SNF — A skilled nursing facility or distinct part of a facility that participates in the Medicare program. SNF requirements apply when a certified facility is billing Medicare for a resident's per diem rate.
(148) Social Security Administration — Federal agency for administration of social security benefits. Local social security administration offices take applications for Medicare, assist beneficiaries file claims, and provide information about the Medicare program.
(149) Social worker — A qualified social worker is an individual who is licensed, or provisionally licensed, by the Texas State Board of Social Work Examiners as prescribed by the Texas Occupations Code, Chapter 505, and who has at least:

(A) a bachelor's degree in social work; or
(B) similar professional qualifications, which include a minimum educational requirement of a bachelor's degree and one year experience met by employment providing social services in a health care setting.

(150) Standards — The minimum conditions, requirements, and criteria established in this chapter with which an institution must comply to be licensed under this chapter.
(151) State Medicaid claims administrator — The entity under contract with HHSC to process Medicaid claims in Texas.
(152) State Ombudsman — Has the meaning given in 26 TAC §88.2 (relating to Definitions).
(153) State plan — A formal plan for the medical assistance program, submitted to CMS, in which the State of Texas agrees to administer the program in accordance with the provisions of the State Plan, the requirements of Titles XVIII and XIX, and all applicable federal regulations and other official issuances of the U.S. Department of Health and Human Services.
(154) State survey agency — HHSC is the agency, which through contractual agreement with CMS is responsible for Title XIX (Medicaid) survey and certification of nursing facilities.
(155) Stay agreement — An agreement between a license holder and the executive commissioner that sets forth all requirements necessary to lift a stay and rescind a license revocation proposed under §19.2107 of this chapter (relating to Revocation of a License by the Executive Commissioner).
(156) Substandard quality of care violation — One or more violations of §19.601 of this chapter (relating to Resident Behavior and Facility Practices), §19.701 of this chapter (relating to Quality of Life), or §19.901 of this chapter (relating to Quality of Care) that constitute:

(A) an immediate threat to resident health or safety;
(B) a pattern of or actual harm that is not an immediate threat; or
(C) a widespread potential for more than minimal harm, but less than an immediate threat, with no actual harm.

(157) Supervising physician — A physician who assumes responsibility and legal liability for services rendered by a physician assistant (PA) and has been approved by the Texas Medical Board to supervise services rendered by specific PAs. A supervising physician may also be a physician who provides general supervision of a nurse practitioner providing services in a nursing facility.
(158) Supervision — General supervision, unless otherwise identified.
(159) Supervision (direct) — Authoritative procedural guidance by a qualified person for the accomplishment of a function or activity within his sphere of competence. If the person being supervised does not meet assistant-level qualifications specified in this chapter and in federal regulations, the supervisor must be on the premises and directly supervising.
(160) Supervision (general) — Authoritative procedural guidance by a qualified person for the accomplishment of a function or activity within his sphere of competence. The person being supervised must have access to the qualified person providing the supervision.
(161) Supervision (intermittent) — Authoritative procedural guidance by a qualified person for the accomplishment of a function or activity within his sphere of competence, with initial direction and periodic inspection of the actual act of accomplishing the function or activity. The person being supervised must have access to the qualified person providing the supervision.
(162)Texas Register — A publication of the Texas Register Publications Section of the Office of the Secretary of State that contains emergency, proposed, withdrawn, and adopted rules issued by Texas state agencies. The Texas Register was established by the Administrative Procedure and Texas Register Act of 1975.
(163) Therapeutic diet — A diet ordered by a physician as part of treatment for a disease or clinical condition, in order to eliminate, decrease, or increase certain substances in the diet or to provide food which has been altered to make it easier for the resident to eat.
(164) Therapy week — A seven-day period beginning the first day rehabilitation therapy or restorative nursing care is given. All subsequent therapy weeks for a particular individual will begin on that day of the week.
(165) Threatened violation — A situation that, unless immediate steps are taken to correct, may cause injury or harm to a resident's health and safety.
(166) Title II — Federal Old-Age, Survivors, and Disability Insurance Benefits of the Social Security Act.
(167) Title XVI — Supplemental Security Income (SSI) of the Social Security Act.
(168) Title XVIII — Medicare provisions of the Social Security Act.
(169) Title XIX — Medicaid provisions of the Social Security Act.
(170) Total health status — Includes functional status, medical care, nursing care, nutritional status, rehabilitation and restorative potential, activities potential, cognitive status, oral health status, psychosocial status, and sensory and physical impairments.
(171) UAR — HHSC's Utilization and Assessment Review Section.
(172) Uniform data set — See RAI (Resident Assessment Instrument).
(173) Universal precautions — The use of barrier and other precautions to prevent the spread of blood-borne diseases.
(174) Unreasonable confinement — Involuntary seclusion.
(175) 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.
(176) Vendor payment — Payment made by HHSC on a daily-rate basis for services delivered to recipients in Medicaid-certified nursing facilities. Vendor payment is based on the nursing facility's approved-to-pay claim processed by the state Medicaid claims administrator. The Nursing Facility Billing Statement, subject to adjustments and corrections, is prepared from information submitted by the nursing facility, which is currently on file in the computer system as of the billing date. Vendor payment is made at periodic intervals, but not less than once per month for services rendered during the previous billing cycle.
(177) Willfully interfere — To act or not act to intentionally prevent, interfere with, or impede or to attempt to intentially prevent, interfere with, or impede.
(178) Widespread — When the problem causing a violation is pervasive in a facility or represents systemic failure that affected or has the potential to affect a large portion or all of a facility’s residents.
(179) Working day — Any 24-hour period, Monday through Friday, excluding state and federal holidays.

NFRLMC, Subchapter C, Nursing Facility Licensure Application Process

 

 

Revision 18-5

 

§19.201 Criteria for Licensing

(a) A person or governmental unit, acting jointly or severally, must be licensed by the DADS to establish, conduct, or maintain a facility.
(b) An applicant for a license must submit a complete application form and license fee to DADS.
(c) No person may apply for a probationary license, a license, change of ownership, increase in capacity, or renewal of a nursing facility license without making a disclosure of information as required in this section.
(d) An applicant for a license must affirmatively show that:

(1) the applicant or license holder has the ability to comply with:

(A) minimum standards of medical care, nursing care and financial condition; and
(B) any other applicable state or federal standard;

(2) the facility meets the standards of the Life Safety Code;
(3) the facility meets the construction standards in Subchapter D of this chapter (relating to Facility Construction); and
(4) the facility meets the standards for operation based upon an on-site survey.

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

(1) the applicant or license holder;
(2) a partner, officer, director, or managing employee of the applicant or license holder;
(3) a person who owns or who controls the owner of the physical plant of a facility in which the nursing facility operates or is to operate; and
(4) a controlling person with respect to the nursing facility for which a license or license renewal is requested.

(f) An applicant or license holder must submit to DADS a sworn affidavit of a satisfactory compliance history and any other information required by DADS to substantiate a satisfactory compliance history in each state or other jurisdiction for any time period during which persons described in subsection (e) of this section operated a long-term care facility. For purposes of the sworn affidavit of a satisfactory compliance history, the applicant will be considered to have complied with the submission requirement (but not necessarily be entitled to a license) if the applicant swears or affirms that all the information disclosed in the application concerning previous state and federal nursing facility sanctions and penalties and related information are true and correct. The affidavit of compliance history is contained in DADS application form.
(g) A license is issued if, after inspection and investigation, DADS finds that the persons described in subsection (e) of this section meet all requirements of this chapter. Except as provided in §19.205 of this subchapter (relating to Probationary License) and §19.208(b)(2) of this subchapter (relating to Renewal Procedures and Qualifications), the license is valid for three years. Each license specifies the maximum allowable number of residents. The number of residents authorized by the license must not be exceeded.
(h) In making a determination whether to grant a nursing facility license, DADS reviews:

(1) the information contained in the application;
(2) the criminal history information of the persons described in subsection (e) of this section; and
(3) other documents DADS deems relevant, including survey and complaint investigation findings in each facility with which the applicant or any other person named in subsection (e) of this section has been affiliated at any time.

 

§19.202 Building Approval

All applications for license must include written approval of the local fire authority that the facility and its operation meet local fire ordinances.

 

(1) New facility. The sponsor of a new facility under construction or a previously unlicensed facility will provide to the Texas Department of Human Services (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 local health authority may provide recommendations to DHS regarding the status of compliance with local codes, ordinances, or regulations. The sponsor must also provide a copy of a dated, written notice of the approval for occupancy by the local building code authority, if applicable.
(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.
(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. The local health authority may provide recommendations to DHS regarding the status of compliance with local codes, ordinances, or regulations.
(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.

 

§19.204 Application Requirements

 

(a) Applications. All applications must be made on forms prescribed by and available from DADS.

(1) Each application must be completed in accordance with DADS instructions, and it must be signed and notarized.
(2) Changes to information required in the application must be reported to DADS, as required by §19.1918 of this title (relating to Disclosure of Ownership).

(b) General information required. An applicant must file with DADS 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 DADS;
(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; and
(4) for a facility which advertises, markets, or otherwise promotes that it provides services to residents with Alzheimer's disease and related disorders, a disclosure statement, using the departmental form, describing the nature of its care or treatment of residents with Alzheimer's disease and related disorders, as required by the Texas Health and Safety Code, §242.202.

(A) Failure to submit the required disclosure statement will result in an administrative penalty in accordance with §19.2112 of this title (relating to Administrative Penalties).
(B) The disclosure statement must contain the following information:

(i) the facility's philosophy of care for residents with Alzheimer's disease and related disorders;
(ii) whether the facility is certified under Texas Health and Safety Code §242.040 for the provision of specialized care and treatment of residents with Alzheimer’s disease and related disorders;
(iii) the preadmission, admission, and discharge process;
(iv) resident assessment, care planning, and implementation of the care plan;
(v) staffing patterns, such as resident to staff ratios, and staff training;
(vi) the physical environment of the facility;
(vii) resident activities;
(viii) program charges;
(ix) systems for evaluation of the facility's program;
(x) family involvement in resident care; and
(xi) the telephone number for DADS' toll-free complaint line.

(C) A facility must:

(i) amend its disclosure statement if changes in the operation of the facility will affect the information in the disclosure statement required by subparagraph (B)(i)-(xi) of the paragraph; and
(ii) submit the amended disclosure statement to DADS at least 30 days before the changes are effective.

(c) Requested information. An applicant or license holder must provide any information DADS requests within 30 days after the request.
(d) Exemptions. The provisions of this section do not apply to a bank, trust company, financial institution, title insurer, escrow company, or underwriter title company to which a license is issued in a fiduciary capacity.

 

§19.205 Probationary License

 

The initial license issued to a license holder who has not previously held a license is a probationary license and is effective for one year. A permanent license may be issued only after DHS finds that the license holder and any other person listed in §19.201(f) of this title (relating to Criteria for Licensing) continues to meet the nursing facility requirements and submits an application requesting a permanent license with the applicable license fee. The facility must also be able to pass an inspection unless an inspection is not required as provided by §242.047, Health and Safety Code.

 

§19.206 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 §19.216 of this title (relating to License Fees).
(b) Upon approval of an increase in capacity, DHS will issue a new license.

 

§19.208 Renewal Procedures and Qualifications

 

(a) A license issued under this chapter is not automatically renewed. Each license expires three years from the date issued, except as provided in §19.205 of this subchapter (relating to Probationary Licenses) and subsection (b)(2) of this section.
(b) For a license that expires during the period September 1, 2013, through August 31, 2014, DADS:

(1) issues a three-year renewal license to a facility with a facility identification number ending in an odd digit; and
(2) issues a two-year renewal license to a facility with a facility identification number ending in an even digit.

(c) The license fee for renewal licenses issued in accordance with subsection (b)(2) of this section is two-thirds of the amount referenced in §19.216(a)(2) of this subchapter (relating to License Fees).
(d) For a license that expires after August 31, 2014, DADS issues a three-year renewal license.
(e) Each license holder must, no later than the 45th day 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 submits:

(1) a complete application to DADS, and DADS receives the complete application no later than the 45th day before the expiration date of the current license;
(2) 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 no later than the 45th day before the expiration date of the current license; or
(3) a complete application or an 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 fee established in §19.216(a)(6) of this subchapter in addition to the basic renewal fee.

(f) If the application is postmarked by the submission deadline, the application will be considered timely if received in DADS Licensing and Credentialing Section, Regulatory Services Division within 15 days after the postmark.
(g) The appropriate license fee must be paid upon submission of the renewal application.
(h) The renewal of a license may be denied for the same reasons an original application for a license may be denied. See §19.214 of this subchapter (relating to Criteria for Denying a License or Renewal of a License).

 

§19.209 Exclusion from Licensure

 

(a) DADS, after providing notice and opportunity for a hearing, may exclude a person from eligibility for a license if the person or any person described in §19.201(e) of this subchapter (relating to Criteria for Licensing) has substantially failed to comply with the rules in this chapter. During the period of exclusion, the excluded person is not eligible to be a license holder or a controlling person of a license holder. The period of exclusion:

(1) must extend for at least two years, and
(2) may extend:

(A) for not more than ten years if the exclusion is based on conduct that occurred before September 1, 2011; or
(B) throughout the person’s lifetime or existence if the exclusion is based on conduct that occurred on or after September 1, 2011.

(b) A license holder or controlling person who operates a nursing facility or an assisted living facility for which a trustee was appointed and for which emergency assistance funds, other than funds to pay the expenses of the trustee, were used is subject to exclusion from eligibility for the:

(1) issuance of an original license for a facility for which the person has not previously held a license; or
(2) renewal of the license of the facility for which the trustee was appointed.

 

§19.210 Change of Ownership License

 

(a) A license holder may not transfer its license. If there is a change of ownership, the license holder's license becomes invalid on the date of the change of ownership. The new owner must obtain a change of ownership license in accordance with subsection (b) of this section. The license holder and new license applicant must notify DADS before a change of ownership occurs.

(b) The applicant must submit to DADS:

(1) a complete application for a change of ownership license under §19.201 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 §19.216 of this subchapter (relating to License Fees); and
(3) signed, written notice from the facility's existing license holder of his intent to transfer operation of the facility to the applicant beginning on a date specified by the applicant.

(c) To avoid a facility operating while unlicensed, an applicant must submit all items in subsection (b) of this section at least 30 days before the anticipated date of the change of ownership. DADS considers an application as submitted timely if the application is 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 30-day notification from the applicant or the 30-day notification from the existing license holder or both may be waived if DADS determines that the applicant presented evidence showing that circumstances prevented the submission of the 30-day notice and if DADS determines that not waiving the 30-day notification would create a threat to resident welfare or health and safety. If the applicant submits a timely and sufficient application for a change of ownership license and meets all requirements for a license, DADS issues a change of ownership license effective on the date requested by the applicant.

(e) A change of ownership license is a 90-day temporary license issued to an applicant who proposes to become the new operator of a nursing facility that exists on the date the application is submitted. Upon receipt of a complete application, fee, and signed, written notice from the facility’s existing license holder of the intent to transfer the operation of the facility to the applicant beginning on a date specified by the applicant, DADS issues a change of ownership license to the applicant if DADS finds that the applicant and any other persons listed in §19.201(e) of this subchapter meet the requirements in §19.201(d)(1) and (f) of this subchapter.

(1) All applications must be made on forms prescribed by and available from DADS. Each application must be completed in accordance with DADS instructions, signed, and notarized, and must contain all forms required by DADS.

(2) DADS approves or denies an application for a change of ownership license not later than the 31st day after the date of receipt of the complete application, fee, and signed, written notice from the facility's existing license holder of his intent to transfer the operation of the facility to the applicant beginning on a date specified by the applicant. The effective date of the license is the later of the date requested in the application or the 31st day after the date DADS receives the application, fee, and signed, written notice from the existing license holder, unless waived in accordance with subsection (d) of this section. The effective date of the change of ownership license cannot precede the date the application is received in DADS Licensing and Credentialing Section, Regulatory Services Division.

(3) If the applicant meets the requirements of §19.201 of this subchapter and passes an initial inspection, desk review, or a subsequent inspection before the change of ownership license expires, a regular three-year license is issued. The effective date of the regular three-year license is the same date as the effective date of the change of ownership and cannot precede the date the application is received by DADS Licensing and Credentialing Section, Regulatory Services Division.

(4) When an applicant has not previously held a license in Texas, a probationary license is issued following the change of ownership license. The effective date of the probationary one-year license is the same date as the change of ownership license and cannot precede the date the application is received in DADS Licensing and Credentialing Section, Regulatory Services Division.

(5) A change of ownership license expires on the 90th day after its effective date. 

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

(A) 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

(B) every owner with a disclosable interest in the new license holder had a disclosable interest in the former license holder.

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

(f) A  license holder may be eligible to acquire, on an expedited basis, a license to operate another existing nursing facility. A license holder that appears on the expedited change of ownership list may be granted expedited approval in obtaining a change of ownership license to operate another existing nursing facility in Texas.

(1) DADS maintains and keeps current a list of nursing facility license holders that operate an institution in Texas and that have met the criteria to qualify for an expedited change of ownership according to the information available to DADS.

(2) In order to establish and maintain the expedited change of ownership list, DADS uses the criteria found in §19.2322(e) of this chapter (relating to Medicaid Bed Allocation Requirements). A license holder meeting these criteria appears on the list and is eligible to be issued, on an expedited basis, a change of ownership license to operate another existing institution in Texas.

(3) A  license holder appearing on the list must submit an affidavit that demonstrates the license holder continues to meet the criteria established for being listed on the expedited change of ownership list, and continues to meet the requirements in §19.201(d)(1) and (f) of this subchapter.

(4) DADS processes a change of ownership license application on an expedited basis for a license holder on the list if DADS finds that the license holder and any other persons listed in §19.201(e) of this subchapter meet the requirements in §19.201(d)(1) and (f) of this subchapter.

(5) If the license holder requesting a change of ownership license on an expedited basis complies with subsections (b)-(e) of this section, DADS approves or denies the application for a change of ownership license not later than the 15th day after the date of receipt of the complete application, fee, and signed, written notice from the facility's existing license holder of the intent to transfer the operation of the facility to the applicant beginning on a date requested in the application. The effective date of the license is the later of the date requested in the application or the 31st day after the date DADS receives the application fee, and signed, written notice from the existing license holder, unless waived in accordance with subsection (d) of this section. The effective date of the change of ownership license cannot precede the date the application is received in DADS Licensing and Credentialing Section, Regulatory Services Division.
(6) An applicant for a change of ownership license on an expedited basis must meet all applicable requirements that an applicant for renewal of a license must meet. Any requirement relating to inspections or to an accreditation review applies only to institutions operated by the license holder at the time the application is made for the change of ownership license.

(g) 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 re-issues the current license in the license holder’s new name.

(h) 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 no later than 30 days after the addition of the owner.

 

§19.211 Relocation

 

(a) A license holder may not relocate a facility to another location without approval from the Texas Department of Human Services (DHS). The license holder must submit a complete application and the fee required under §19.216 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 nursing facilities.
(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, and does not govern the relocation of Medicaid-certified beds. See §19.2322 of this title (relating to Medicaid Bed Allocation Requirements) for guidelines on relocation of Medicaid-certified beds.

 

§19.212 Time Periods for Processing License Applications

 

(a) The Health and Human Services Commission (HHSC) 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, reports have been reviewed, and the applicant complies with the standards.
(c) If the application is postmarked by the filing deadline and received by HHSC within 15 days of the postmark, the application is considered to be timely filed.
(d) HHSC notifies a facility within 30 days of receipt of the application if any of the following applications are incomplete:

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

(e) 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.
(f) HHSC may pend action for up to six months on an application:

(1) of any type listed in subsection (d) of this section to give an applicant time to comply with licensure requirements imposed by HHSC; or
(2) for renewal of the license if the facility is subject to a proposed denial or pending licensure revocation action.

(g) Criteria for reimbursement of fees are as follows:

(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 executive commissioner for resolution of the dispute. The applicant must send a written statement to the executive commissioner describing the request for reimbursement and the reasons for it. The program also may send a written statement to the executive commissioner describing the program's reasons for denying reimbursement. The executive commissioner makes a timely decision concerning the appeal and notifies the applicant and the program in writing of the decision.

 

§19.214 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 §19.201(e) of this subchapter (relating to Criteria for Licensing):

(1) is subject to denial or refusal as described in Chapter 99 of this title (relating to Denial or Refusal of License) during the time frames described in that chapter;
(2) does not have a satisfactory history of compliance with state and federal nursing home regulations. In determining whether there is a history of satisfactory compliance with federal or state regulations, DADS at a minimum may consider:

(A) whether any violation resulted in significant harm or a serious and immediate threat to the health, safety, or welfare of any resident;
(B) whether the person promptly investigated the circumstances surrounding any violation and took steps to correct and prevent a recurrence of a violation;
(C) the history of surveys and complaint investigation findings and any resulting enforcement actions;

(D) a repeated failure to comply with regulation;
(E) an inability to attain compliance with cited deficiencies within an acceptable period of time as specified in the plan of correction or credible allegation of compliance, whichever is appropriate;
(F) the number of violations relative to the number of facilities the applicant or any other person named in §19.201(e) of this subchapter has been affiliated with at any time; and
(G) any exculpatory information deemed relevant by DADS;(3) has committed any act described in §19.2112(a)(2)-(7) of this chapter (relating to Administrative Penalties);
(4) violated Chapter 242 of the Texas Health and Safety Code in either a repeated or substantial manner;
(5) aids, abets, or permits a substantial violation described in paragraph (4) of this subsection about which the person had or should have had knowledge;
(6) fails to provide the required information and facts and/or references;
(7) fails to pay the following fees, taxes, and assessments when due:

(A) licensing fees as described in §19.216 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 §19.2116(e) and (f) of this chapter (relating to Involuntary Appointment of a Trustee); or
(C) franchise taxes;

(8) has a history of any of the following actions at any time preceding the date of the application:

(A) operation of a facility that has been decertified or had its contract canceled under the Medicare or Medicaid program in any state or both;
(B) federal or state nursing facility sanctions or penalties, including, but not limited to, 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;
(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;
(F) revocation of a license to operate a health care facility, long-term care facility, assisted living facility, or similar facility in any state;
(G) surrender of a license in lieu of revocation or while a revocation hearing is pending; or
(H) expiration of a license while a revocation action is pending and the license is surrendered without an appeal of the revocation or an appeal is withdrawn;

(9) fails to meet minimum standards of financial condition as described in §19.201(d)(1)(A) of this subchapter and §19.1925(a) of this chapter (relating to Financial Condition); or
(10) fails to notify DADS of a significant adverse change in financial condition as required under §1919.25 of this chapter.

(b) DADS:

(1) denies a license to an applicant to operate a facility if the applicant has on the date of the application:

(A) a debarment or exclusion from the Medicare or Medicaid programs by the federal government or a state; or (B) a court injunction prohibiting the applicant or manager from operating a facility; or

(2) may deny a license to an applicant to operate a new facility if the applicant has a history of any of the following actions at any time preceding the date of the application:

(A) revocation of a license to operate a health care facility, long-term care facility, assisted living facility, or similar facility in any state;
(B) surrender of a license in lieu of revocation or while a revocation hearing is pending;
(C) expiration of a license while a revocation action is pending and the license is surrendered without an appeal of the revocation or an appeal is withdrawn;
(D) debarment or exclusion from the Medicare or Medicaid programs by the federal government or a state; or
(E) a court injunction prohibiting the applicant or manager from operating a facility.

(c) Only final actions are considered for purposes of subsections (a)(8) and (b) of this section. An action is final when routine administrative and judicial remedies are exhausted. All actions, whether pending or final, must be disclosed.
(d) 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 an application for a new license will not preclude the renewal of licenses for the applicant's other facilities with satisfactory records.
(e) If DADS denies a license or refuses to issue a renewal of a license, the applicant or license holder may request an administrative hearing. Administrative hearings are held under the Health and Human Services Commission's hearing procedures in 1 TAC Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act), and Chapter 91 of this title (relating to Hearings Under the Administrative Procedure Act).

 

§19.215 Opportunity to Show Compliance

 

(a) Before the institution of proceedings to revoke or suspend a license or deny an application for the renewal of a license, 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, with a copy being sent to the facility; 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. The request must:

(A) be postmarked within 10 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 DHS used as the basis for its proposed action and will not be conducted as an adversary hearing. DHS will give the license holder a written affirmation or reversal of the proposed action.

 

§19.216 License Fees

 

(a) Basic fees.

(1) Probationary license. The license fee is $125 plus $5 for each unit of capacity or bed space for which a license is sought.
(2) Initial and renewal license. The license fee is $375 plus $15 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.
(3) Increase in bed space. An approved increase in bed space is subject to an additional fee of $15 for each unit of capacity or bed space.
(4) Change of administrator. A facility must report a change of administrator within 30 days of the effective date of the change by submitting a change of administrator notice and a $20 fee to DADS Licensing and Credentialing Section, Regulatory Services Division. If DADS Licensing and Credentialing Section, Regulatory Services Division does not receive the notice within 30 days of the effective date of the change, DADS may impose a $500 administrative penalty. If the notice is postmarked within the 30-day period, 15 days will be added to the time period to receive the notice.
(5) Background information fee. The background information fee is $50.
(6) Late renewal fee. An applicant for license renewal that submits an application during the 45-day period ending on the date the current license expires must pay a late fee of an amount equal to one-half of the total basic renewal fee in subsection (a)(2) of this section. The late fee for a two-year renewal license issued in accordance with §19.208(b)(2) of this subchapter (relating to Renewal Procedures and Qualifications) is one half of the total two-year renewal fee calculated in accordance with §19.208(c) of this subchapter.

(b) Trust fund fee.

(1) In addition to the basic license fee described in subsection (a) of this section, DADS has established a trust fund for the use of a court-appointed trustee as described in the Texas Health and Safety Code, Chapter 242, Subchapter D.
(2) DADS charges and collects an annual fee from each facility licensed under the Texas Health and Safety Code, Chapter 242 each calendar year if the amount of the nursing and convalescent trust fund is less than $10,000,000. The fee is based on a monetary amount specified for each licensed unit of capacity or bed space, not to exceed $20 annually, and is in an amount sufficient to provide not more than $10,000,000 in the trust fund. In calculating the fee, the amount will be rounded to the next whole cent.
(3) Veterans homes (as defined in the Texas Natural Resources Code, §164.002) are exempt from paying a trust fund fee.
(4) DADS may charge and collect a fee more than once a year only if necessary to ensure that the amount in the nursing and convalescent trust fund is sufficient to allow required disbursements.

(c) Alzheimer's certification. In addition to the basic license fee described in subsection (a) of this section, a facility that applies for certification to provide specialized services to persons with Alzheimer's disease or related conditions under Subchapter W of this chapter (relating to Certification of Facilities for Care of Persons with Alzheimer's Disease and Related Disorders) must pay with each initial and renewal certification application a fee of $300 for the three-year certification.

 

§19.218 Method of Payment

 

Payment of fees must be by check or money order made payable to the Texas Department of Human Services. All fees are nonrefundable except as provided by the Government Code, Chapter 2005.

 

§19.219 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 follows:

(1) Facilities – new construction:

(A) single-story facilities — $20 per bed, $2,000 minimum; and
(B) multiple-story facilities — $24 per bed, $2,500 minimum.

(2) Additions or remodeling of existing licensed facilities — 2% of construction cost with $500 minimum fee and a maximum not to exceed $2,000.
(3) Alzheimer's certification — $550 in addition to the fees specified in paragraphs (1)-(2) of this subsection.

 

§19.220 Expedited Life Safety Code and Physical Plant Inspection Fees.

 

(a) DADS charges a fee for expedited Life Safety Code and physical plant inspections for new buildings, additions, conversion of buildings not licensed by DADS, or remodeling of existing licensed facilities.
(b) Table of Expedited Life Safety Code and Physical Plant Inspection Fees.

  New Construction Additions/Remodel Alzheimer’s Certification
Single Story $30 per bed Minimum: $3,600 3% of construction cost Minimum: $1,500 plus $30 per bed Maximum: $3,000 plus $30 per bed $850 plus $36 per bed
Multiple Story $36 per bed Minimum: $4,500 3% of construction cost Minimum: $1,500 plus $36 per bed Maximum: $3,000 plus $36 per bed $850 plus $36 per bed

NFRLMC, Subchapter D, Facility Construction

Revision 18-4

 

Division 1 – General Provisions

 

§19.300 General Requirements

(a) The facility must be designed, constructed, equipped, and maintained to protect the health and ensure the safety of residents, personnel, and the public.
(b) If children are admitted to the facility, accommodations, furnishings, and equipment appropriate to children must be provided, including the following;
    (1) The facility must provide indoor and outdoor recreation areas designed to encourage exploration within the children's capabilities.
    (2) The facility must provide pediatric equipment and supplies in appropriate sizes for the age and development level of the children. Pediatric emergency supplies and equipment must be readily available for use.
    (3) The environment must be the least restrictive allowable while remaining within the parameters of safety. All areas of the facility accessible to children must be "child proof" for safety hazards. This type of safety proofing is above the normal level of hazard control maintained for adult residents and includes the addition of safety covers on electrical outlets not in use that are accessible to children.
    (4) Pediatric resident's rooms must be decorated and furnished in accordance with the age and developmental level of the children and as an expression of their individual preferences.
(c) HHSC may grant a waiver for certain provisions regarding the physical plant and environment that, in the opinion of HHSC, would be impractical for the facility to meet. In granting the waiver, HHSC must determine that granting the waiver has no adverse effect on resident health and safety and the requirement, if not waived, would impose an unreasonable hardship on the facility. HHSC may require offsetting or equivalent provisions in granting a waiver.
(d) The requirements of this subchapter are applicable to nursing facilities as follows:
    (1) All nursing facilities must comply with division 3 of this subchapter (relating to Provisions Applicable to All Facilities).
    (2) A nursing facility licensed before September 11, 2003, must comply with division 2 of this subchapter (relating to Facilities Licensed Before September 11, 2003).
    (3) A nursing facility licensed on or after September 11, 2003, but before April 2, 2018, must comply with division 5 of this subchapter (relating to Facilities Licensed On or After September 11, 2003 and Before April 2, 2018).
    (4) A nursing facility licensed on or after April 2, 2018, must comply with division 9 of this subchapter (relating to Facilities Licensed On or After April 2, 2018).
    (5) A small house or household facility is a facility that is designed to provide a non-institutional environment to promote resident-centered care and that meets the requirements of §19.345 of this subchapter (relating to Small House and Household Facilities). New construction of a small house or household facility must meet the requirements of §19.345 of this subchapter.
(e) A facility must comply with NFPA 101; NFPA 99, except Chapters 7, 8, 12, and 13; and a Tentative Interim Amendment (TIA) issued by NFPA, including the TIAs listed in paragraphs (1) and (2) of this subsection. A facility must also comply with other NFPA publications referenced in NFPA 101 or in this chapter, unless otherwise approved by HHSC.
    (1) The following TIAs have been issued for NFPA 101:
        (A) TIA 12-1, issued August 11, 2011;
        (B) TIA 12-2, issued October 30, 2012;
        (C) TIA 12-3, issued October 22, 2013; and
        (D) TIA 12-4, issued October 22, 2013.
    (2) The following TIAs have been issued for NFPA 99:
        (A) TIA 12-2, issued August 11, 2011;
        (B) TIA 12-3, issued August 9, 2012;
        (C) TIA 12-4, issued March 7, 2013;
        (D) TIA 12-5, issued August 1, 2013; and
        (E) TIA 12-6, issued March 3, 2014.  
(f) Building rehabilitation on existing buildings shall be classified in accordance with NFPA 101 and shall comply with NFPA 101 and §19.350 of this subchapter (relating to Building Rehabilitation).
(g) Buildings, or portions of buildings, may be occupied during construction, repair, alterations, or additions only when required means of egress and required fire protection features are in place and continuously maintained for the portion occupied, or when alternative life safety measures acceptable to HHSC are in place.
(h) No existing life safety feature shall be removed or reduced when the feature is a requirement for new construction. Life safety features and equipment that have been installed in existing buildings, if not required by NFPA 101, must continue to be maintained or may be completely removed if prior approval is obtained from HHSC.
(i) The facility must perform a risk assessment in accordance with NFPA 99.
    (1) The risk assessment must follow and document the defined risk assessment procedure used.
    (2) The results of the assessment procedure must be documented and records retained.
    (3) A building system required by NFPA 99 shall be designed to meet the risk categories determined for each system as part of this assessment. At a minimum, any new systems or equipment must be designed to meet the requirements for Category 2 risk, as defined in NFPA 99.
    (4) The assessment must be reviewed and a new assessment performed, if necessary, on an annual basis and when the facility identifies changes in resident care needs that cannot be met by the currently installed systems and equipment.
    (5) In addition to the requirements of NFPA 99 based on the risk assessment, a facility must also meet all applicable requirements of this subchapter.
(j) A wing or area that is separated from the rest of the facility by locked doors, or a facility that is locked in its entirety, for the purpose of securing residents must meet the requirements of §19.2208(a)(6) and (c)(1)-(10) of this chapter (relating to Standards for Certified Alzheimer's Facilities).

 

§19.301 Definitions

The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise. The definitions listed in §19.101 of this chapter (relating to Definitions) also apply to this subchapter.


(1) Alarm Planning Superintendent — Fire Alarm Planning Superintendent. A person licensed by the State Fire Marshal’s Office to plan, install, certify, inspect, test, service, monitor, and maintain fire alarm or fire detection devices.
(2) ANSI — American National Standards Institute.  
(3) ASHRAE — Formerly American Society of Heating, Refrigerating and Air-Conditioning Engineers. A global society focusing on building systems, energy efficiency, indoor air quality, refrigeration, and sustainability.
(4) ASME — The American Society of Mechanical Engineers, a developer of codes and standards associated with the art, science, and practice of mechanical engineering.
(5) ASME A17.1 — Safety Code for Elevators and Escalators, published by ASME.
(6) ASTM — ASTM International, a not-for-profit, voluntary standards developing organization that develops and publishes international voluntary consensus standards for materials, products, systems, and services.
(7) ASTM E84 — Standard Test Method for Surface Burning Characteristics of Building Materials, 2010, published by ASTM.
(8) ASTM E90 — Standard Test Method for Laboratory Measurement of Airborne Sound Transmission Loss of Building Partitions and Elements, published by ASTM.
(9) ASTM E108 — Standard Test Methods for Fire Tests of Roof Coverings, published by ASTM.
(10) ASTM E662 — Standard Test Method for Specific Optical Density of Smoke Generated by Solid Materials, 2017, published by ASTM.
(11) Building Rehabilitation — Any construction activity involving repair, modernization, reconfiguration, renovation, changes in occupancy or use, or installation of new fixed equipment, including, the following:


(A) the replacement of finishes, such as new flooring or wall finishes or the painting of walls and ceilings;
(B) the construction, removal, or relocation of walls, partitions, floors, ceilings, doors, or windows;
(C) the replacement of doors, windows, or roofing;
(D) changes to the appearance of the exterior of a building, including new finish materials;
(E) the repair, replacement, or extension of fire protection systems, including fire sprinkler systems, fire alarm system, and fire suppression systems at cooking operations;
(F) the replacement of door hardware, plumbing fixtures, handrails in corridors, or grab rails in bathrooms and restrooms;
(G) the repair, replacement, or extension of nurse call systems;
(H) the repair or replacement of emergency electrical system equipment and components, including generator sets, transfer switches, distribution panel boards, receptacles, switches, and light fixtures;
(I) the change of a wing or area to a secured wing or unit;
(J) the change of a secured wing or unit to ordinary resident-use;
(K) a change in the use of space, including the change of resident bedrooms to other uses, such as offices, storage, or living or dining spaces; and,
(L) changes in locking arrangements, such as the installation of access control systems or the installation or removal of electronic locking devices, including electromagnetic locks, and other delayed-egress locking devices.

(12) NFPA 13 — Standard for the Installation of Sprinkler Systems, 2010 edition.
(13) NFPA 25 — Standard for the Inspection, Testing, and Maintenance of Water-Based Fire Protection Systems, 2011 edition.
(14) NFPA 37 — Standard for the Installation and Use of Stationary Combustion Engines and Gas Turbines, 2010 edition.
(15) NFPA 54 — National Fuel Gas Code, 2012 edition.
(16) NFPA 55 — Compressed Gases and Cryogenic Fluids Code, 2010 edition.
(17) NFPA 58 — Liquefied Petroleum Gas Code, 2011 edition.
(18) NFPA 70 — National Electrical Code, 2011 edition.
(19) NFPA 72 — National Fire Alarm and Signaling Code, 2010 edition.
(20) NFPA 90A — Standard for the Installation of Air-Conditioning and Ventilating Systems, 2012 edition.
(21) NFPA 96 — Standard for Ventilation Control and Fire Protection of Commercial Cooking Operations, 2011 edition.
(22) NFPA 110 — Standard for Emergency and Standby Power Systems, 2010 edition.
(23) NFPA 220 — Standard on Types of Building Construction, 2012 edition.
(24) NFPA 255 — Standard Method of Test of Surface Burning Characteristics of Building Materials. This document was withdrawn by NFPA in 2009 in lieu of ASTM E84 and UL 723.
(25) NFPA 258 — Recommended Practice for Determining Smoke Generation of Solid Materials. This document was withdrawn by NFPA in 2006 in lieu of ASTM E662.
(26) Patient care vicinity — A space extending 6 ft. (1.8 m) horizontally in all directions around the resident bed and extending vertically to 7 ft. 6 in. (2.3 m) above the floor. If the dimension between the bed and a wall or partition is less than 6 ft. (1.8 m), the limit of the patient care vicinity is at the wall or partition.
(27) RME — Responsible Managing Employee. A person licensed by the State Fire Marshal’s Office who is designated by a registered fire sprinkler firm to ensure that any fire protection sprinkler system, as planned, installed, maintained, or serviced, meets the standards provided by law. The type of RME license issued determines the type of fire sprinkler services the fire sprinkler firm may perform.
(28) TAS — Texas Accessibility Standards.
(29) Texas Natural Resource Conservation Commission — The predecessor agency to TCEQ.
(30) TCEQ — Texas Commission on Environmental Quality.
(31) UL — UL LLC, formerly Underwriters’ Laboratory.
(32) UL 723 — Standard for Test for Surface Burnings Characteristics of Building Materials.
(33) UL 790 — Standard Test Methods for Fire Tests of Roof Coverings.
(34) UL 1069 — Standard for Hospital Signaling and Nurse Call Equipment.

 

Division 2 Facilities Licensed Before September 11, 2003

 

§19.302 Applicable Codes and Standards

 

(a) The facility must meet the provisions of the Existing Health Care Occupancies chapter of NFPA 101.
(b) The following codes, standards, or guidelines govern their subject areas for existing construction:


(1) If the municipality has a building code and a plumbing code, those codes govern.
(2) In the absence of municipal codes, nationally recognized codes must be used. To ensure continuity, all nationally recognized codes, when used, must be publications of the same group or organization.
(3) Heating, ventilating, and air-conditioning systems must be designed and installed in accordance with NFPA 90A and the ASHRAE Handbook, except as may be modified in this subchapter.
(4) Electrical and illumination systems must be designed and installed in accordance with NFPA 70 and the Lighting Handbook of the Illuminating Engineering Society of North America, except as may be modified in this subchapter.
(5) The facility must comply with accessibility requirements for individuals with disabilities in the revised regulations for Title II and III of the Americans with Disabilities Act at 28 CFR Part 35 and Part 36, also known as the 2010 ADA Standards for Accessible Design, and the TAS adopted by the Texas Department of Licensing and Regulation (TDLR) at 16 TAC Chapter 68. A facility must register plans for new construction, substantial renovations, modifications, and alterations with TDLR, Attn: Elimination of Architectural Barriers Program, and comply with TAS.
(6) Every building and portion of a building must be capable of sustaining all dead and live loads in accordance with accepted engineering practices and standards.
(7) Each building must be classified as to building construction type for fire resistance rating purposes in accordance with NFPA 220 and NFPA 101.
(8) Building insulation materials, unless sealed on all sides and edges in an approved manner with noncombustible material, must have a flame-spread rating of 25 or less when tested in accordance with ASTM E84, UL723, or ASTM E662.
(9) A facility with a boiler must meet all applicable requirements of Texas Health and Safety Code, Chapter 755.

 

§19.303 Emergency Power

(a) Emergency power systems must meet the requirements of NFPA 99 applicable to existing facilities, for the risk category determined by the requirements of §19.300(i) of this subchapter (relating to General Requirements), and the requirements of this section. Rehabilitation or modernization of an existing emergency power system must be based on the assessed risk category and according to the requirements of NFPA 99 for new health care facilities.
(b) An emergency electrical power system must supply power adequate at least for lighting all entrances and exits, equipment to maintain the fire detection, alarm, and extinguishing systems, and any systems or equipment whose failure is likely to cause major injury or death to a resident if the normal electrical supply is interrupted. Emergency electrical services by generator or battery must be provided to comply with the provisions of NFPA 70. Battery systems must be capable of sustaining power for a duration of at least one and one-half hours.

(1) The emergency electrical power system must supply the following systems:

(A) illumination for means of egress, nurses' stations, medication rooms, dining and living rooms, and areas immediately outside of exit doors;
(B) exit signs and exit directional signs required by NFPA 101;
(C) alarm systems, including fire alarms activated by manual stations, water flow alarm devices of sprinkler systems, fire and smoke detecting systems, and alarms required for nonflammable medical gas systems if installed;
(D) task illumination and selected receptacles at any required or provided generator set location;
(E) selected duplex receptacles, including receptacles in resident corridors, each resident-bed location where systems or equipment is used whose failure is likely to cause major injury or death to a resident, nurses' stations, medication rooms, including biological refrigerator, if a generator is required or provided;
(F) nurse call systems;
(G) resident room night lights when provided;
(H) elevator cab lighting, control, and communication systems;
(I) all facility telephone equipment; and
(J) those paging or speaker systems that are necessary for the communication plan for an emergency. Radio transceivers that are necessary for emergency use must be capable of operating for at least one hour upon total failure of both normal and emergency power.

(2) If the emergency electrical power system supplies other systems the facility considers critical to operation, the transfer to the emergency power source must be by delayed automatic connection.
(3) The emergency lighting must be automatically in operation within 10 seconds after the interruption of normal electrical power supply. Emergency service to receptacles and equipment may be a delayed automatic connection. Receptacles connected to emergency power must be of a uniform and distinctive color. Stored fuel capacity must be sufficient for not less than four hours of required generator operation.
(4) An emergency motor generator, if provided, must meet the following standards:

(A) any emergency generator must be installed in accordance with NFPA 37, NFPA 110 and NFPA 99;
(B) generators located on the exterior of the building must be provided with a noncombustible protective cover or be protected as per manufacturer's recommendations; and
(C) motor generators fueled by public utility natural gas must have the capacity to be manually or automatically switched to an alternate fuel source, as specified in NFPA 70.

(5) Wiring for the emergency system must be in accordance with NFPA 70.

(c) When the failure of systems or equipment is likely to cause major injury or death to a resident, such as the failure of a mechanical ventilator used to support or completely control breathing, the facility must provide emergency electrical power with an emergency generator as, defined in NFPA 99, located on the premises.

 

§19.304 Space and Equipment

The facility must:

(1) provide sufficient space and equipment in dining, health services, recreation, and program areas to enable staff to provide residents with needed services as required by these standards and as identified in each resident's plan of care; and
(2) maintain all essential mechanical, electrical, and patient care equipment in safe operating condition.

 

§19.305 Resident Rooms

Resident rooms must be designed and equipped for adequate nursing care, comfort, and privacy of residents.

(1) Bedrooms must:

(A) accommodate no more than four residents. The total number of beds in ward rooms with three or more beds must not exceed 50% of the total facility capacity in existing facilities unless approved by the HHSC.
(B) measure at least 80 square feet per resident in multiple resident bedrooms and at least 100 square feet in single resident rooms.
(C) have direct access to an exit corridor.
(D) be designed or equipped to assure full visual privacy for each resident. A facility must take appropriate measures to protect the privacy and dignity of the residents through the use of cubicle curtains, screens, or procedures. Curtains and screens must be rendered and maintained flame-retardant.
(E) in facilities initially certified after March 31, 1992, except in private rooms, have ceiling-suspended curtains for each bed, which extend around the bed to provide total visual privacy, in combination with adjacent walls and curtain (see paragraph (4) of this section).
(F) have at least one operable window to the outside which can readily be opened from the inside without the use of tools. The height of the window sill must not exceed 36 inches above the floor. The minimum area of windows in each bedroom must equal at least 8.0% of the room area. Operable window sections may be restricted to not more than six nor less than four inches for security or safety reasons. Each window must be provided with a flame-retardant shade, curtain, or blind.
(G) have a floor at or above grade level.

(2) The facility must provide each resident with:

(A) a separate bed of proper size and height for the convenience of the resident. The bed will be a minimum of 36 inches wide with a headboard of sturdy construction. The facility must provide each bed with suitable bedspreads and blankets to assure the comfort and warmth of each resident, and must not pass bedspreads and blanket from resident to resident without first being laundered. The bed of each resident with physician's orders for bedrails must have bedrails affixed to both sides of the bed;
(B) a clean, comfortable mattress with a moisture-proof cover, and a comfortable pillow;
(C) bedding appropriate to the weather and climate; and
(D) functional furniture appropriate to the resident's needs including a comfortable chair, bedside cabinet, and individual closet space in the resident bedroom with at least 16 inches of hanging space, shelves for personal belongings accessible to then resident, and closeable door(s). Each bedroom must be provided with at least one noncombustible wastebasket.

(3) HHSC may permit variations in requirements specified in paragraph (1)(A) and (B) of this section relating to rooms in individual cases when the facility demonstrates in writing that the variations:

(A) are required by the special needs of the residents; and
(B) will not adversely affect residents' health and safety.

(4) The width and length of bedrooms and the arrangement of furniture must assure appropriate resident circulation, especially in relation to emergency evacuation and to usual wheelchair movement. Bedrooms should not be less than 10 feet in the smallest dimension. There must be at least 36 inches between beds and should be at least 18 inches between any bed and the adjacent parallel wall that restricts access by the resident, that is, bed sides should not have to be placed against a wall to meet other spacing requirements. Beds must not extend into the bedroom door opening, nor must any other piece of furnishing or equipment be located where it might preclude or inhibit the removal of any bed or closing and latching of the bedroom door in an emergency.
(5) Each bed must have access to a nurse call device that is part of an electrical nurse call system.
(6) Each bed must be provided with an appropriate, safe, durable, nonglare, permanently bed-mounted or wall-mounted reading-light fixture. The fixture must be wired in accordance with NFPA 70. These fixtures should be mounted at least five feet, six inches above the floor. The switch must be within reach of a resident in the bed.
(7) At least one duplex receptacle must be provided for each bed. Other duplex receptacles must be provided as needed or as required by NFPA 70.
(8) Each bedroom must be assured of having general lighting, either by means of appropriate combination reading light or by means of separate fixture.
(9) For emergency separation from fire and smoke, bedroom doors must be maintained to close completely without dragging or binding, to latch securely, and to fit reasonably tight in the frame. The gap between the floor and the bottom of the closed door must not exceed 3/4 inch.
(10) Vacant bedrooms may not be used for hazardous activities or hazardous storage, unless specifically approved by HHSC in writing.
(11) Bedrooms must be identified with a raised or recessed unique number placed on or near the door. Refer to §19.319(c) of this title (relating to Provisions for Persons with Disabilities) and §19.301(c)(5) of this title (relating to Applicable Codes and Standards).
(12) Residents must be permitted and encouraged to have personal possessions in their rooms that do not interfere with their care, treatment, or well-being, or that of other residents.
(13) Locks on bedroom doors are permitted when they meet definite resident needs, including the following situations:

(A) married couples whose rights of privacy could be infringed upon unless bedroom door locks are permitted; and
(B) residents for whom the attending physician wants bedroom door locks to enhance their sense of security.

(14) In situations such as those listed in paragraph (13) of this section, the following guidelines must be met:

(A) bedroom door locks must be of the type which the occupant can unlock at will from inside the room;
(B) all bedroom door locks must be of the type which can be unlocked from the corridor side;
(C) attendants must carry keys which will permit ready accessibility to the locked bedrooms when entrance becomes necessary; and
(D) locking of bedroom doors by residents for privacy or security will not be permitted except when specifically included in the attending physician's written orders or authorized by the nursing facility administrator.

 

§19.306 Toilet Facilities

Each resident room must be equipped with or located near toilet and bathing facilities.

(1) Bedrooms not provided with their own (or shared) direct-access toilets and baths must have general-use baths and toilets conveniently located for each sex.
(2) Bathtubs or showers must be provided at minimum rate of one for each 20 beds which are not otherwise served by bathing facilities directly accessible from resident bedrooms.
(3) In toilet facilities designed for multi-resident use, water closets must be separated in such a manner that they can be used independently and afford privacy. Toilet paper in a suitable dispenser must be provided within reach of each toilet.
(4) Water closets and lavatories must be provided at a minimum rate of one for each eight beds which are not otherwise served by fixtures directly accessible from resident bedrooms. A lavatory must be provided in or adjacent to each area having a water closet.
(5) Lavatories must be equipped with a mixer faucet and hot and cold water. Resident-use hot water must be provided within the temperature guidelines specified in §19.322(g) of this title (relating to Plumbing).
(6) There must be a sufficient number of toilet rooms and bathing areas designed to accommodate residents in wheelchairs, including sufficient space in or around fixtures. Proper heights, locations, and installations must be made for grab bars, and any mirrors and accessories provided.
(7) Grab bars and lavatories must be substantially anchored to withstand sustained and repeated downward and outward pressure. Grab bars must be provided at all resident water closets and bathing fixtures. New grab bar installations must meet the requirements of the Texas Department of Licensing and Regulation, Elimination of Architectural Barriers Section.
(8) Floors, walls, and ceilings must have a nonabsorbent, cleanable surface. Floors and tub or shower standing surfaces must be slip resistant.
(9) Doors to bathing and toilet facilities must be wide enough for safe and easy passage of residents in wheelchairs. Folding or sliding doors must not be used unless it can be established that no safety hazard exists.
(10) Keys to resident baths or toilets with privacy locks must be kept readily available to staff.
(11) Provision must be made for sanitary hand washing and drying by staff, visitors, or residents at each lavatory.
(12) Bathrooms and toilets rooms must have a negative air pressure in relation to adjacent areas with air exhausted through ducts to the exterior.
(13) Bathing areas must be provided with safe heating.
(14) Bathtubs, showers, and lavatories must be kept clean and in proper working order. They must not be used for laundering or for storage of soiled materials or for the cleaning of mops or brooms.
(15) Nurse-call devices must be provided at resident-use baths and toilets and be within easy reach of residents.
(16) Electrical outlets in wet areas must be provided with ground fault interrupters, excluding toilet rooms where there are no bathing units.

 

§19.307 Resident Call System

(a) The nurse's station must be equipped to receive resident calls through a communication system from:

(1) resident rooms; and
(2) toilet and bathing facilities.

(b) The call cord does not have to be accessible in all parts of the room, but must be accessible to the resident. The system must be connected to on and off switches operable at each bed, toilet unit, and bathing unit.
(c) Each call entered into the system must activate a corridor dome light above the bedroom, bathroom, or toilet corridor door that opens onto a corridor.
(d) A visual signal at the nurses station must indicate the room from which the call was placed with an audible signal of sufficient amplitude to be clearly heard by nursing staff. The amplitude or pitch of the audible signal must not be irritating to residents or visitors.
(e) The system must be designed so calls entered into the system may be canceled only at the calling station. Intercom-type systems which meet this requirement are acceptable.

 

§19.308 Dining and Resident Activities

(a) Requirements. The facility must provide one or more rooms designated for resident dining and activities. These rooms must be:

(1) well-lighted;
(2) well ventilated, with nonsmoking areas identified;
(3) adequately furnished; and
(4) sufficiently spacious to accommodate all activities.

(b) Resident living areas.

(1) Resident living areas such as living rooms, dayrooms, lounges, recreation rooms, and sunrooms must be provided to meet the needs of the residents' comfort. Combined living and dining areas should be not less than 19 square feet per bed, but must not be less than ten square feet per bed.
(2) No single room less than 100 square feet will be included as part of the acceptable total area required.
(3) At least one living area must have an outside window.
(4) Living areas must be provided with comfortable furniture of substantial construction and be appropriately decorated to provide a pleasant and comfortable environment for residents and visitors. Furnishings and decorations must not obstruct exits or ways of egress.
(5) Nonsmoking areas must be provided and identified.

(c) Dining areas. Dining space must be provided to adequately serve needs of the residents and provide an efficient, sanitary, and pleasant environment for dining.

 

§19.309 Other Environmental Conditions

The facility must provide a safe, functional, sanitary, and comfortable environment for residents, staff, and the public.

(1) The facility must:

(A) establish procedures to ensure that water is available to essential areas when there is a loss of normal water supply;
(B) have adequate outside ventilation by means of windows, mechanical ventilation, or a combination of the two;
(C) maintain an effective pest control program so that the facility is free of pests and rodents; and
(D) equip corridors with firmly secured handrails on each side on all walls 18 inches or longer. These rails must be substantially anchored to withstand downward force and must be mounted 33 to 36 inches from the floor.

(2) No occupancies or activities undesirable to the health, safety, or well-being of residents will be located in the facility.
(3) An electric water cooler or water fountain must be accessible to residents. When new drinking fountains are provided, at least one must be installed to be accessible to persons in wheelchairs.
(4) Public toilets with sanitary handwashing and drying provisions must be provided or designated.
(5) If deodorant is used for air-freshening purposes, the following procedures must apply:

(A) deodorants or air fresheners are permitted provided the dispensing device is located where it is inaccessible to residents and patients;
(B) these products are not used to cover odors resulting from poor housekeeping practices or unsanitary conditions;
(C) these products are not used in excess;
(D) there is no contra-indication on the label of the product indicating that the product should not be used in the presence of aged or ill persons; and
(E) devices, such as ozone generators, ultra-violet generators, and smoke eliminators, must be approved by HHSC.

(6) Permanently mounted hold-open devices to expedite emergency egress and prevent accidental lock-out must be provided for exterior doors.

 

§19.310 Site and Grounds

(a) Site grades must provide for positive surface water drainage so that there will be no ponding or standing water at or near the building that would present a hazard to health or provide a breeding site or harborage for carriers of disease.
(b) Outdoor activity, recreational, and sitting spaces must be provided for residents as space permits.
(c) Each facility must have parking spaces to satisfy the needs of residents, employees, staff, and visitors. Provisions must be made for handicapped parking and access into the building.
(d) Protection must be provided for resident safety from traffic or other site hazards by the use of appropriate methods, such as fences, hedges, retaining walls, railings, or other landscaping. This protection must not inhibit the free emergency egress to a safe distance away from the building.
(e) 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, must meet the same code requirements for safety as the main licensed structure.
(f) Other buildings on the site must meet the appropriate occupancy section or separation requirements of the Life Safety Code.
(g) All outside areas, grounds, and adjacent buildings on the site must be maintained in good condition and kept free of rubbish, garbage, and untended growth that may constitute a fire or health hazard.
(h) Enclosed exterior spaces, such as fenced areas, that are in a means of egress to a public way must meet the requirements of §19.2208(a)(6) of this title (relating to Standards for Certified Alzheimer's Facilities).

 

§19.311 Fire Service and Access

(a) The facility must be served by a paid or volunteer fire department.

(1) The fire department must provide written assurance to the licensing agency that the fire department can respond to an emergency at the facility within an appropriately prompt time for the travel conditions involved.
(2) The facility must have an annual inspection by the local fire marshal and maintain documentation of such an inspection at the facility.

(b) The facility must be served by an adequate water supply that is satisfactory and accessible for fire department use as determined by the fire department serving the facility and by the Texas Department of Human Services (DHS).
(c) There must be at least one approved, readily accessible fire hydrant located within 300 feet of the building. The hydrant must be on a minimum six-inch service line, or else there must be an approved equivalent, such as a storage tank. The hydrant, its location, and service line, or equivalent must be approved by the local fire department and DHS.
(d) The building must have suitable fire lanes for access as required by local fire authorities and DHS.

 

§19.313 Interior Finishes – Walls, Ceilings, and Floors

(a) Interior finishes of walls and ceilings must have limited flame-spread rating as required by the Life Safety Code. Where new interior finishes of walls, ceilings, or floors are applied to existing facilities, the new finishes must meet the requirements for flame-spread ratings for new construction. Fire retardant paints or solutions must not be applied to new materials in an effort to meet flame-spread requirements for new construction. This description of interior finishes does not apply to furniture or accessories.
(b) Floors of the facility must be level, smooth, and free of any irregularities which might affect safety.
(c) Walls and ceilings not specifically described elsewhere in this chapter must be cleanable, maintained attractively, and in good repair.
(d) 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.

 

§19.314 Fire Alarms, Detection Systems, and Sprinkler Systems

Fire alarms, detection systems, and sprinkler systems must be as required by the Life Safety Code, the National Fire Protection Association (NFPA) 72, and NFPA 13.
(1) Components must be compatible and laboratory listed for the use intended.
(2) Wiring and circuitry for alarm systems must meet the applicable requirements for NFPA standards, including NFPA 70, for these systems.
(3) Fire alarm systems must be installed, maintained, and repaired by an agent having a current certificate of registration with the State Fire Marshal's Office of the Texas Commission on Fire Protection, in accordance with state law. A fire alarm installation certificate must be provided as required by the Office of the State Fire Marshal.
(4) 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 for systems installed after July 1, 2000, must be available for examination by the Texas Department of Human Services (DHS).
(5) The fire alarm system must be designed so that whenever the general alarm is sounded by activation of any device (such as manual pull, smoke sensor, sprinkler, or kitchen range hood extinguisher) the following will occur automatically:

(A) smoke and fire doors which are held open by an approved device must be released to close;
(B) air handlers (air conditioning/heating distribution fans) serving three or more rooms or any means of egress must shut down immediately;
(C) smoke dampers must close; and
(D) the alarm-initiating location must be clearly indicated on the fire alarm control panel(s) and all auxiliary panels.

(6) Consistent fire alarm bells or horns must be located throughout the building for audible coverage. Flashing alarm lights (visual alarms) must be installed to be visible in corridors and public areas including dining rooms and living rooms.
(7) A master control panel which indicates location of alarm and trouble conditions (by zone or device) must be visible at the main nurse station. All control panels must be listed in accordance with the provisions of the Underwriters Laboratories, Inc. (UL) for intended use, such as manual, automatic, and water-flow activation. Alarm and trouble zoning must be by smoke compartments and by floors in multi-story facilities.
(8) Remote annunciator panels, indicating location of alarm initiation by zone or device and common trouble signals, must be located at auxiliary or secondary nurses stations on each floor or major subdivision of single story facilities and indicate the alarm condition of adjacent zones and the alarm conditions at all other nurse stations.
(9) Manual pull stations must be provided at all exits, living rooms, dining rooms, and at or near the nurse stations.
(10) The NFPA 13 sprinkler system must be monitored for flow and tamper conditions by the fire alarm system.
(11) The kitchen range hood extinguisher must 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.
(12) Partial sprinkler systems provided only for hazardous areas must be interconnected to the fire alarm system and comply with the Life Safety Code. Each partial system must 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.

 

§19.315 Portable Fire Extinguishers

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

(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 for water type or five pound 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.

 

§19.316 Subdivision of Building Spaces - Smoke Barriers

(a) Subdivision of building spaces must be as required by the Life Safety Code.
(b) The facility must maintain the integrity of smoke barrier walls, including those parts of walls in attics and other concealed spaces.
(c) The facility must maintain the integrity of smoke dampers in air ducts.
(d) Ducts with smoke dampers must have maintenance panels for inspection. The maintenance panels must be removable without tools. Means of access must also be provided in the ceiling or side wall to facilitate smoke damper inspection readily and without obstruction. Location of dampers must be identified on the wall or ceiling of the occupied area below.


§19.317 Elevators and Escalators

Elevators must comply with the provisions of the Life Safety Code and American National Standard Institute Safety Code for Elevators and Escalators (ANSI/ASME A17.1). Elevators are required for buildings having residents' 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 and escalators must be inspected by a qualified agent at least every six months. Freight elevators must be inspected every 12 months.

 

§19.318 Other Rooms and Areas

(a) Nurses' station.

(1) All resident bedroom corridors must be observable by direct line of sight or by mechanical means from a designated nurses' station or auxiliary station. There must be at least one nurses' station per floor in multi-storied buildings.
(2) If all resident bedroom corridors are observable by direct line of sight from inside the nurses' station or from within 24 inches of the counter or hall of the nurses' station, no auxiliary stations are required, even if resident bedrooms are more than 150 feet from the nurses' station.
(3) When resident bedrooms are more than 150 feet from the nurses' station and the adjacent corridors are not observable from the station by direct line of sight, an auxiliary station must be established and used.
(4) All corridors adjacent to resident bedrooms that are more than 150 feet from a designated nurses' station or auxiliary station must be observable by direct line of sight from the designated nurses' station or auxiliary station. Corridors located in the service area of an auxiliary station must be observable, as described in paragraphs (2) and (3) of this subsection, at the auxiliary station.
(5) The 150-foot limitation described in paragraphs (2)-(4) of this subsection may be increased to 165 feet in facilities or additions to facilities completed before August 10, 1983.
(6) In addition to the required normal and emergency illumination, the facility must keep on hand and readily available to night staff no less than one working flashlight at each nurses' station.

(b) Auxiliary station. Each auxiliary station must include a work area in which nursing personnel can document and maintain resident data, even if the facility's initial decision is to maintain clinical records at the nurses' station.

(1) Auxiliary stations must be staffed by nursing personnel during all shifts.
(2) More than one auxiliary station may be assigned to a designated nurses' station, regardless of the distance between stations. More than one corridor may be observed by mechanical means from a designated nurses' station or auxiliary station.
(3) A nurse call system for resident corridors monitored by an auxiliary station must register calls at the auxiliary station.
(4) Each auxiliary station must have an emergency electrical source adequate to power lights at the station.
(5) Medications and clinical records may be maintained at an auxiliary station.
(6) If a required auxiliary station does not already exist and the facility must establish a new auxiliary station, all applicable standards, particularly those pertaining to the physical plant and NFPA 101, must be observed. All renovations and structural changes require prior approval from HHSC.
(7) All new construction completed after August 10, 1983, must allow direct line-of-sight observation of all resident bedroom corridors from the nurses' station or auxiliary station.

(c) Mechanical means for resident observation.

(1) The nursing facility may use closed-circuit television or mirrors to observe residents in the facility.
(2) Closed-circuit television monitoring systems must meet the following criteria:

(A) The camera must be placed to view the entire corridor length, without any "blind spots."
(B) The camera must be capable of providing recognizable images, in minimum and maximum light levels, for the complete viewing area.
(C) The monitor must be installed and be clearly visible to persons in the nurses' station or auxiliary station who are assigned to the area monitored by the camera.
(D) The system must be supplied with emergency power that enables the system to function during electrical service failures.
(E) Each camera must have its own separate monitor.
(F) If the system performs the minimum basic functions specified in subparagraphs (A)-(D) of this paragraph, television monitoring systems installed before March 1984 may remain in service until the equipment is replaced or the system is expanded. Replacement systems or new component equipment must satisfy subparagraphs (A)-(E) of this paragraph.

(3) Mirrors must meet the following criteria:

(A) The mounting height of the mirror must be no less than six feet and eight inches from the floor to the bottom of the mirror.
(B) The mirror must not extend more than 3-1/2 inches from the face of the corridor wall, unless the bottom of the mirror is more than seven feet and six inches above the floor.
(C) The mirror image must be clear enough that individuals can be recognized, in minimum and maximum light levels, throughout the viewing area.

(4) The monitoring systems described in this section must not be used to deny privacy to staff or residents.

(d) Nurse call system. Each nurses' station must be equipped to register residents' calls through a communication system from resident areas.
(e) Medication storage area. A medication storage area must include a sufficient, lockable, enclosed medicine storage space, medicine room, or medication cart. The medication storage area must be furnished with a refrigerator. There must be sufficient space available for a medication preparation area equipped with a sink having hot and cold water. When not in use, the medication cart must be secured in a designated area. Only authorized personnel must have access to the lockable, enclosed medication storage area, medication room, or the medication cart. Medication storage areas and preparation areas must be adequately ventilated and temperature controlled.
(f) Clean utility room. A clean utility room must be provided and must contain a sink with hot and cold water. It must be part of a system for storage and distribution of clean and sterile supply materials and equipment.
(g) Soiled utility room. A soiled utility room must be provided and contain a flushing fixture and a sink with hot and cold water. It must be part of a system for collection and cleaning or disposal of soiled utensils or materials.
(h) Soiled linen room. A soiled linen room must be provided as needed commensurate with the type of laundry system used. In relation to adjacent areas, a negative air pressure must be provided with air exhausted through ducts to the exterior. Air must be exhausted continually whenever there are soiled linens in the room. A soiled linen room may be combined with a soiled utility room.
(i) Clean linen storage. Clean linen storage must be provided, conveniently located to resident bedroom areas.
(j) Kitchens.

(1) Nursing facility kitchens will be evaluated on the basis of their performance in the sanitary and efficient preparation and serving of meals. Consideration will 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. Evaluation will be based on the number of meals served.
(2) Kitchen temperature, at peak load, must not exceed a temperature of 85 degrees Fahrenheit measured over the room at the five foot level. Sufficient heating must be provided to maintain an average temperature of not less than 70 degrees Fahrenheit in winter (with exhausts operating) at the five-foot level.
(3) The kitchen must have operational equipment 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.
(4) The kitchen must have facilities for washing and sanitizing dishes and cooking utensils. These facilities must be adequate for the number of meals served and the method of serving, such as use of permanent or disposable dishes. The kitchen must contain a multi-compartment sink large enough to immerse pots and pans. In all facilities, a mechanical dishwasher is required for sanitizing dishes. The facility must maintain separation of soiled and clean dish areas including air flow and traffic flow.
(5) The kitchen must have an adequate supply of hot and cold water. Hot water for sanitizing purposes must 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. Hot water for general kitchen use must be 140 degrees Fahrenheit.
(6) A kitchen must have at least one hand-washing lavatory in the food-preparation area. The dish washing area must have ready access to a hand-washing lavatory or hand sanitizing device. Hand-washing lavatories must be provided with hot and cold running water, a sanitary soap dispenser, and paper towel dispenser or hot air dryer.
(7) Nonabsorbent smooth finishes or surfaces must be used on kitchen floors, walls, and ceilings. These surfaces must be capable of being routinely sanitized to maintain a healthful environment.
(8) A janitor's closet with service sink must be easily and readily accessible to the kitchen.
(9) The kitchen exhaust hood at cooking equipment and its attached automatic chemical extinguisher must comply with NFPA 96. HHSC may waive certain details of NFPA 96 for existing kitchen exhausts at cooking equipment provided that basic function and safety are not compromised.

(k) Food storage areas.

(1) Food storage areas must provide for storage of a seven-day minimum supply of nonperishable staple foods and a two-day supply of perishable foods at all times.
(2) Shelves and pallets must be moveable wire, metal, or sealed lumber, and walls must be finished with a nonabsorbent finish to provide a cleanable surface.
(3) Dry food storage must have a venting system to provide for reliable positive air circulation.
(4) The maximum room temperature for food storage must not exceed 85 degrees Fahrenheit. The measurement must be taken at the five-foot level.
(5) Foods must not be stored on the floor. Dunnage carts or pallets may be used to elevate foods not stored on shelving.
(6) Sealed containers must be provided for storing dry foods after the package seal has been broken.
(7) 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 usage.

(l) Auxiliary serving kitchens not contiguous to food preparation and serving areas.

(1) Where service areas other than the kitchen are used to dispense foods, the facility must designate these service areas as food service areas and must have equipment for maintaining required food temperatures while serving.
(2) Separate food service areas must have hand-washing facilities as a part of the food service area.
(3) Finishes of all surfaces except ceilings must be the same as those required for dietary kitchens.

(m) Administrative and public areas. Facilities must have administrative areas for normal business transactions and maintenance of records.
(n) Laundry.

(1) Laundry facilities must be located in areas separate from resident rooms. The laundry must be designed, constructed, and equipped and appropriate procedures must be utilized to assure that laundry is handled, cleaned, and stored in a sanitary manner.
(2) Laundry for general linen and clothing must be arranged so as to separate soiled and clean operations as they relate to traffic, handling, and air currents. Suitable exhaust and ventilation must be provided to prevent air flow from soiled to clean areas.
(3) Floors, walls, and ceilings must be nonabsorbing and easily cleanable.
(4) Soiled linen must be stored and/or transported in closed or covered containers. Soiled linen storage or holding rooms must have a negative air pressure in relation to adjacent areas with air exhausted through ducts to the exterior.
(5) Laundry areas must have air supply and ventilation to minimize mildew and odors. Doors must not remain open, for sanitation and safety reasons.
(6) Room size, and number and type of appliances must provide efficient, sanitary, and timely laundry processing to meet the needs of the facility.
(7) The laundry, if located in the facility, must meet NFPA 101 requirements for separation and construction for hazardous areas.

(o) Resident-use laundry. This service, if provided, must be limited to not more than one residential type washer and dryer per laundry room. This room must be classified as a hazardous area according to the NFPA 101.
(p) Personal grooming area. Space and equipment must be provided for the hair care and grooming needs of the residents. Hair care and grooming service will be provided in resident bedrooms or in designated areas which are not in a way of egress.
(q) Storage rooms. General and specific storage areas must be provided as needed and required for safe and efficient operation of the facility. Items must not be stored in inappropriate places such as corridors or rooms which are not equipped for special hazard protection.
(r) Janitor closets. In addition to the janitors' closet called for in certain departments, other janitors' closets must be provided throughout the facility to maintain a clean and sanitary environment. All janitor closets must have a negative air pressure in relation to adjacent areas with air exhausted through ducts to the exterior.
(s) Disposal facilities. A policy and procedure for the safe and sanitary disposal of special waste must be provided. Space and facilities must be provided for the sanitary storage and disposal of waste, not classified as special, by incineration, mechanical destruction, compaction, containerization, removal, or contract with outside resources, or by a combination of these techniques.
(t) Maintenance, engineering service, and equipment areas.

(1) The facility must provide storage for building equipment, supplies, tools, parts, and yard maintenance equipment.
(2) Volatile liquids and supplies must not be kept within the main building housing residents.
(3) All equipment requiring periodic maintenance, testing, and servicing must be reasonably accessible. Necessary equipment to conduct these services, such as ladders, specific tools, and keys, must be readily available on site.

(u) Oxygen.

(1) The facility must implement procedures that assure the safe and sanitary use and storage of oxygen. Such procedures must be in compliance with all applicable NFPA standards, including NFPA 99.
(2) Oxygen cylinders and containers must be in compliance with NFPA 99. Liquid oxygen containers must be certified by UL or another approved testing laboratory for compliance with NFPA 55 requirements. The storage, handling, assembly, and testing must be in compliance with all applicable NFPA standards, including NFPA 99 and NFPA 50 requirements. The facility is responsible for defining all potential hazards both graphically and verbally to all persons involved in the use of liquid oxygen and ensuring that the liquid-oxygen provider does also.

 

§19.319 Provisions for Persons with Disabilities

New facilities and additions must meet the requirements of the Texas Department of Licensing and Regulation, Elimination of Architectural Barriers Section. Existing facilities must meet the requirements of the Americans with Disabilities Act and must, at a minimum, comply with the following:

(1) The facility must provide and mark at least one parking space for persons with disabilities.
(2) The facility must provide wheelchair access into the building by use of ramps and curb breaks. Ramps must not slope more than 1:12 (one unit of rise to 12 units of run).
(3) Room identification signs or letters must be installed four feet six inches to five feet above finished floor and located on the corridor walls adjacent to the latch side of the door jamb. Letters or numbers on signs must be raised or recessed at least 1/32 inch minimum. Characters must be at least 5/8 inch in height and no higher than two inches.
(4) Grab bars at toilet and bathing units must be 1-1/4 inch to 1-1/2 inch in diameter.
(5) Toilet facilities must be available and of sufficient size to accommodate wheelchairs. There must be at least one public wheelchair-accessible restroom.
(6) Water closet seat height in toilet facilities for persons with disabilities must be 17 to 19 inches from floor.
(7) Mirrors and dispensers for persons with disabilities must be no higher than 40 inches above the floor.
(8) Drinking fountains or coolers must meet American National Standards Institute (ANSI) A117.1 (that is, up front spout and controls no more than 36 inches from floor maximum). Fountains existing at the time of this publication do not have to be altered.
(9) Public telephones, if provided, must meet ANSI A117.1. Mounting height must not exceed 48 inches to coin slot.

 

§19.320 Lighting and Illumination

Current recommendations of the Illumination Engineering Society of North America must be followed to achieve proper illumination characteristics and lighting levels throughout the facility. Minimum illumination must be ten foot candles in resident rooms and 20 foot candles in corridors, nurses stations, dining rooms, lobbies, toilets, bathing facilities, laundries, stairways, and elevators. 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 overbed reading lamps, medication preparation or storage areas, kitchens, and nurse's station desks must be 50 foot candles. Illumination requirements for these areas apply to the task performed and should be measured on the task.

 

§19.321 Heating, Ventilating, and Air-conditioning Systems (HVAC)

(a) The heating system must be capable of maintaining a temperature of not less than 71 degrees Fahrenheit at the resident level in all resident-use areas.

(1) Auxiliary heating devices permanently installed, such as heat strips in ducts, electric ceiling-mounted heating units, and electric baseboards, may be used to augment a central heating system as approved by the Texas Department of Human Services (DHS). See §19.705 of this title (relating to Environment).
(2) All gas heating systems must be checked annually for proper operation and safety by persons who are licensed or approved by the State of Texas to inspect such equipment. A record of this service must be maintained by the facility. Any unsatisfactory condition must be corrected promptly.

(b) The cooling system must be capable of maintaining a temperature suitable for the comfort of the residents in resident-use areas.
(c) Air flow must be directed or adjusted so that a resident is not in direct drafts that could be harmful to the health and comfort of the resident.
(d) Unvented heating units and portable heaters are prohibited.
(e) The facility must 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 must be provided with functioning mechanical ventilation to change the air on a basis commensurate with the room usage. Air systems must 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. When certain rooms or areas are dependent on a central air system for proper ventilation, including exhaust, that central air system fan must run continuously.
(f) Operable outside windows must be provided with insect screens. Outside doors must be self-closing to control entry of insects. All exterior doors must be effectively weather stripped.
(g) Heating and air conditioning systems must be provided with clean and effective air filters.
(h) Ducts and piping subject to surface condensation must be insulated to prevent condensation at least in areas which may affect sanitation or cause building deterioration.
(i) A comfortable temperature for residents when bathing must be provided.
(j) Heating, ventilating, and air conditioning systems must comply with the provisions of applicable National Fire Prevention Association (NFPA) standards. Ducts are to be of a Class A material (noncombustible). Combustion air for gas-fired equipment must be ducted from the exterior.
(k) Air flow must be designed to prevent cross contamination within any area where applicable, such as laundries and kitchens, as well as the system or facility as a whole.
(l) In relation to adjacent areas, a positive air pressure must be provided for clean utility rooms, clean linen rooms, and medication rooms. Conditioned supply air must be introduced into these rooms.
(m) In relation to adjacent areas, a negative air pressure must be provided for soiled utility rooms, soiled laundry rooms, bathrooms, toilets, and other odor-producing rooms. Air from these rooms must not be recirculated, but instead must be exhausted through ducts to the exterior by effective means.
(n) Facility temperature must be maintained for the comfort of residents.

 

§19.322 Plumbing

(a) If the municipality has a plumbing code, that code must be used as a basis for determining the correctness of plumbing installation. In the absence of a municipal code, a nationally recognized plumbing code must be used.
(b) 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 Resource Conservation Commission.
(c) Sewage must be discharged into a state-approved sewerage system or the sewage must be collected, treated, and disposed of in accordance with applicable Texas Natural Resource Conservation Commission rules and regulations.
(d) The wastewater drainage and sewage system must assure that sanitation is maintained for residents. Wastewater or sewage must not be discharged on the surface of the ground. Traps must not be allowed to lose their seal. Appliances must have air gaps as required for connections to the sewerage system. Venting must assure a rapid flow of wastewater in the sewage system.
(e) The interior cold water supply system and piping must be so placed or so insulated as to prevent condensation drip in habitable areas and in storage areas.
(f) Backflow preventers or vacuum breakers must be installed with any water supply fixture where the outlet or attachments may be submerged.
(g) Resident-use hot water must be reliably controlled, such as by thermostatic or mixing valves, to not exceed 110 degrees Fahrenheit and not less than 100 degrees Fahrenheit at each fixture.
(h) Hot water for other usages must be provided at the temperatures required for the appliance or fixture or for the operation involved, such as dishwashing and laundry.
(i) The supply quantity of hot water must be adequate for normal peak load usage. Facilities which continue to experience a shortage of hot water must remedy the situation by such means as adding storage tanks, adding or increasing the size of water heaters, or other approved means.
(j) Water heaters must be equipped with pressure temperature relief valves.

 

Division 3 Provisions Applicable To All Facilities

 

§19.323 Housekeeping Services

(a) The facility must provide sufficient housekeeping and maintenance personnel, equipment, and supplies to maintain the interior, exterior, and grounds of the facility in a safe, clean, orderly, and attractive manner. In a nursing facility, an employee must be designated as responsible for housekeeping services.
(b) Occupied resident rooms must be cleaned and put in order at least daily.
(c) Storage areas must be kept safe and free from accumulations of extraneous materials such as refuse, discarded furniture, and newspapers. Combustibles, such as cleaning rags and compounds, must be kept in closed metal containers and labeled.
(d) Attics, mechanical rooms, boiler rooms, and other similar areas must not be used for storage purposes.
(e) All bleaches, detergents, disinfectants, insecticides, and other poisonous substances must be kept in a safe place accessible only to employees. They must not be kept in containers previously containing food or medicine. Containers must be labeled.

 

§19.324 Pest Control

(a) An effective, safe, and continuing pest control system against insects, rodents, and vermin must be in operation in the facility. Pest control services must be provided by nursing facility personnel or by contract with a licensed pest control company. Care must be taken to use the least toxic and least flammable effective insecticides and rodenticides. These compounds must be stored in nonfood preparation and storage areas. Poisons must be under lock.
(b) The facility must protect against harborages and entrances for insects, rodents, and vermin. Outside doors must be self-closing to control entry of pests.
(c) Garbage and trash must be stored in enclosed containers, protected against leakage, contact with disease carriers, and access to animals. It must be stored in areas separate from those used for the preparation and storage of food and must be removed from the premises in conformity with state and local practices. Garbage and trash containers must be maintained free of accumulations and coatings of garbage. Garbage storage areas must be kept clean and in a state of good repair.

 

§19.325 Linen

(a) The nursing facility must have available at all times a quantity of linen essential for the proper care and comfort of residents. Linens must be handled, stored, and processed so as to control the spread of infection.
(b) Linen will be maintained in good repair.
(c) Linen must be washed, dried, stored, and transported in a manner which will produce hygienically clean linen. The washing process must have a mechanism for soil removal and bacteria kill.
(d) Clean linen must be stored in a clean linen area easily accessible to the personnel.
(e) Clean towels and washcloths must be provided to each resident as needed or desired. Towels and washcloths must be stored in a sanitary manner between uses by the resident and must not be used by more than one resident between launderings.
(f) Soiled linen and clothing must be stored separately from clean linen and clothing. Soiled linen and clothing must be stored in well ventilated areas, and must not be permitted to accumulate in the facility. Soiled linen and clothing must be transported in accordance with procedures consistent with universal precautions. Bags or containers must not be reused to transport or store clean items.
(g) Soiled linen must not be sorted, laundered, rinsed, or stored in bathrooms, resident rooms, corridors, kitchens, or food storage areas, except soiled linen and clothing which is not contaminated with blood may be rinsed in a resident's bathroom water closet.
(h) Resident's personal clothing that is not soiled with body wastes may be stored in a closed container in the resident's closet. The clothing must be collected and cleaned at least weekly.
(i) Facility staff must wash their hands both after handling soiled linen and before handling clean linen.

 

§19.326 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.

(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 fire alarm system components that require visual inspection are visually inspected in accordance with NFPA 72.
(4) The facility must ensure fire alarm system components that require testing are tested in accordance with NFPA 72.
(5) The facility must ensure fire alarm system components that require maintenance are maintained in accordance with NFPA 72.
(6) The facility must ensure smoke dampers are inspected and tested in accordance with NFPA 101.
(7) The facility must maintain onsite documentation of compliance with this subsection.

(b) A facility must have a program to inspect, test and maintain the sprinkler system and must execute the program at least once every three months.

(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 sprinkler system components that require visual inspection are visually inspected in accordance with NFPA 13 and 25.
(4) The facility must ensure sprinkler system components that require testing are tested in accordance with the NFPA 13 and 25.
(5) The facility must ensure sprinkler system components that require maintenance are maintained in accordance with NFPA 13 and 25.
(6) The facility must ensure that individual sprinkler heads are inspected and maintained in accordance with NFPA 13 and 25.
(7) The facility must maintain onsite documentation of compliance with this subsection.

(c) If facility staff verify or suspect a malfunction of the fire alarm, emergency electrical, or sprinkler system, the facility must immediately investigate and correct the condition. In addition, the facility must immediately report the failure of the fire alarm, emergency electrical, or sprinkler system to all facility staff and the local fire authority.
(d) If emergency generators are required or provided, a facility must have a program to maintain, operate, and test all emergency generators, including all appurtenant components, and must execute the program at least once every week.

(1) The facility must use a properly instructed person to oversee and execute the program.
(2) The facility must ensure generator components are inspected, tested, and maintained in accordance with NFPA 37, 70, 99, and 110.
(3) The facility must ensure all generators are operated, under load, for at least 30 minutes each week.
(4) The person who executes the program must maintain a signed and dated record or log of inspections, tests and maintenance performed.
(5) For each required operation of the generator under the program, the record or log must include the information necessary to verify:

(A) the total time taken to transfer the load to emergency power;
(B) the total time the generator operated under load;
(C) the total time the facility's emergency system remained on generator power after restoration of normal utility power; and
(D) the total time the generator operated (without load) after the facility's return to normal utility power.

(6) The facility must ensure the condition and proper operation of all emergency lighting is inspected and tested at least once every week.
(7) The facility must maintain onsite documentation of compliance with this subsection.

(e) Duplex receptacles powered through the emergency electrical system must be installed at each resident bed location where resident-care-related electrical appliances are in use, unless a facility can demonstrate that it can provide the diagnostic, therapeutic, or monitoring benefits of the resident-care-related electrical appliances through acceptable alternative means in the event of a power outage.
(f) A facility must conduct a functional test on every required battery emergency lighting system at 30-day intervals for a minimum of 30 seconds. The facility must also conduct an annual test for a minimum of 1 1/2 hours. The lighting system must be fully operational for the duration of the testing. The facility must maintain an onsite written record of all tests performed and make those records available to the authority having jurisdiction during an inspection.
(g) A facility must ensure that a person licensed by the State Fire Marshal's office inspects and services automatic fixed fire extinguishment systems mounted in kitchen range hoods at least once every six months in accordance with NFPA 96. The facility must maintain, onsite, a written and signed report of the inspection and service performed. The facility must keep the hood, exhaust ducts, and filters clean and free of accumulated grease.
(h) A facility must inspect and maintain portable fire extinguishers.

(1) Facility staff must visually inspect portable fire extinguishers monthly. Facility staff conducting the monthly visual inspection must ensure portable extinguishers are protected from damage, kept on their mounting brackets or in cabinets at all times, and kept in the proper condition and working order.
(2) A facility must ensure that a person licensed by the State Fire Marshal's office inspects and maintains portable fire extinguishers at least once every 12 months in accordance with NFPA 10.
(3) The facility must maintain, onsite, a record of all fire extinguisher inspections and maintenance performed.

(i) A facility using gas must have the gas piping lines between from the meter and appliances tested for leaks annually by a person licensed with the State Board of Plumbing Examiners. The facility must maintain, onsite, a written and signed report of these tests. The facility must note and correct any unsatisfactory conditions immediately.
(j) A facility must formulate, adopt, and enforce policies regarding smoking, smoking areas, and smoking safety that also take into account non-smoking residents.

(1) The facility's policies must comply with all applicable federal, state, and local laws and regulations.
(2) The facility is responsible for informing residents, staff, visitors, and other affected parties of smoking policies through the distribution and posting of policies.
(3) A facility must prohibit smoking in any room, ward, or compartment where flammable liquids, combustible gas, or oxygen are used or stored and in any other hazardous locations. These areas must be posted with "No Smoking" signs.
(4) A facility must provide ashtrays of noncombustible material and safe design in all areas where smoking is permitted.
(5) A 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.

(k) A facility must not allow storage of combustible products in facility rooms with gas-fired equipment.
(l) A facility must not allow storage of volatile or flammable liquids or materials anywhere within the facility building.
(m) A facility may install alcohol-based hand rub dispensers if the dispensers are:

(1) installed in a manner that:

(A) does not conflict with any state or local codes that prohibit or otherwise restrict the placement of alcohol-based hand rub dispensers in health care facilities;
(B) minimizes leaks and spills that could lead to falls;
(C) adequately protects against access by vulnerable populations; and
(D) complies with NFPA 101; and

(2) maintained in accordance with dispenser manufacturer guidelines.

(n) A facility must not store or leave unattended medical equipment, carts, wheelchairs, tables, furniture, dispensing machines, or similar physical objects in corridors or other ways of egress, except as permitted by NFPA 101.
(o) A facility must keep smoke doors, fire doors, and doors to hazardous rooms in the facility closed and not prop or wedge a door open. The facility may use only approved devices to hold open a door, such as alarm-activated electromagnetic hold-open devices, as permitted by NFPA 101.
(p) The facility must post building evacuation routes at prominent locations throughout the facility.
(q) A facility must provide approved electrical receptacles in quantity and location for the normal use of appliances in the facility.
(r) A facility must not use electrical extension cords or multi-receptacle plug-in adaptors as a substitute for approved wiring methods in the facility.
(s) A facility may use a listed and approved surge-protection device for equipment for which the manufacturer recommends surge protection, but in no case may the facility use a surge-protection device to increase the number of existing electrical outlets in a room.
(t) A facility must remove all abandoned utilities, such as electrical wiring, ducts, and pipes from the facility when no longer in use. The facility may, however, leave an existing damper that is no longer required by NFPA 101 in-place and inoperable, if the damper is in a duct penetration of a smoke barrier in a fully ducted heating, ventilating, and air conditioning system; the damper is permanently secured in the open position; and quick-response sprinklers have been provided for the smoke compartments on both sides of the smoke barrier.
(u) In operations where there is a chance of cross-contamination, clean and soiled operations must be separated to lessen the chance of cross-contamination by facility employees, residents, and others. This separation must be in relation to traffic flow, air currents, air exhaust, water flow, vapors, and other conditions.
(v) A facility must have and implement as necessary a fire safety plan that:

(1) includes the provisions described in the Operating Features section of the NFPA 101, Chapter 18, New Health Care Occupancies, and Chapter 19, Existing Health Care Occupancies, and 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) includes procedures for:

(A) conducting a fire drill on each work shift at least once per quarter with at least one fire drill conducted each month; and
(B) completing the most current version of the required HHSC form titled, "Fire Drill Report" available on the HHSC website for each fire drill conducted.

(w) Floors, walls, and ceilings.

(1) Floors of the facility must be level, smooth, and free of any irregularities that might affect safety.
(2) Walls and ceilings not specifically described elsewhere in this chapter must be cleanable, maintained attractively, and in good repair.
(3) 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 that might harbor insects, rodents, or vermin.

 

Division 4 Construction and Initial Survey

 

§19.330 Construction Procedures and Initial Survey of Completed Construction

(a) Construction phase.

(1) Prior to the start of construction of a new facility or of building rehabilitation other than that classified as repair in §19.350 of this subchapter (relating to Building Rehabilitation), a facility must notify HHSC in Austin, Texas, in writing.
(2) All construction must be done in accordance to the minimum licensing requirements in this subchapter. It is the facility's responsibility to employ qualified personnel to prepare the contract documents for construction of a new facility or rehabilitation of an existing facility. Contract documents for additions and rehabilitation other than that classified as repair or renovation in §19.350 of this subchapter 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 contract documents, including final plans, designs, and specifications, must bear the seal of a licensed professional engineer approved by the Texas Board of Professional Engineers to operate in Texas or, as permitted by subsections (b)(12) and (15) of this section, signed by a Responsible Managing Employee or Alarm Planning Superintendent licensed by the State Fire Marshal's Office. These certain parts include sheets and sections covering structural, electrical, mechanical, sanitary, and civil engineering.

(b) Contract documents.

(1) Site plan documents must include grade contours; streets with names; a north arrow; fire hydrant locations; fire lanes; utilities, public or private; fences; unusual site conditions, such as ditches, low water levels, and other buildings on-site; and indications of buildings located five feet or less beyond site property lines. Site plan documents for nursing facilities may include the developed landscaping plan for resident use.
(2) Foundation plan documents must include general foundation design and details.
(3) Floor plan documents must include room names, numbers, and usages; resident care areas; numbered doors, including swing; windows; a legend or clarification of wall types; dimensions; fixed equipment; plumbing fixtures; kitchen basic layout; and identification of all smoke barrier walls and fire walls, outside wall to outside wall.
(4) For both new construction, additions to or rehabilitation of an existing building, an overall plan of the entire building must be drawn or reduced to fit on an 8-1/2 inch by 11 inch sheet.
(5) Schedules must include door materials, sizes, and types; window materials, sizes, and types; room finishes; and special hardware.
(6) Elevations must include exterior elevations with material note indications, and interior elevations, where needed for special conditions.
(7) Roof plans must include any roof top equipment, roof slopes, drain locations, and gas piping.
(8) 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.
(9) Building structure documents must include structural framing layout and details, primarily for column, beam, joist, and structural frames; 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 ensure adequate structural design.
(10) 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 signs and emergency egress lighting; emergency electrical provisions, such as generators and panelboards; fire alarms and similar systems, such as control panels, devices, and alarms; staff communication systems, including a nurse call system; and sizes and details sufficient to ensure safe and properly operating systems.
(11) 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.
(12) Heating, ventilation, and air-conditioning (HVAC) documents must include sufficient details of HVAC systems and components to ensure 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, duct smoke detectors; fire dampers; and equipment types, sizes, and locations.
(13) Fire sprinkler system plans and hydraulic calculations, must be designed in accordance with the applicable sections of the NFPA 13, and signed by a Responsible Managing Employee, licensed by the State Fire Marshal's Office, or sealed by a licensed professional engineer.
(14) Other layouts, plans, or details that are necessary to convey a clear understanding of the design and scope of the project; including plans covering private water or sewer systems, which must be reviewed by the local health or wastewater authority having jurisdiction.
(15) Specifications must include installation techniques, quality standards, manufacturers, references to specific codes and standards, design criteria, special equipment, hardware, finishes, and any other information needed to amplify drawings and notes.
(16) Fire detection and alarm system working plans must be designed in accordance with the applicable sections of the NFPA 72, and the NFPA 70, and signed by an Alarm Planning Superintendent licensed by the State Fire Marshal's Office or sealed by a licensed professional engineer.

(c) Initial survey of completed construction.

(1) Upon completion of construction of a new facility, or building rehabilitation other than that classified as repair or renovation in §19.350 of this subchapter, a final construction inspection of the facility, including grounds, basic equipment and furnishings, must be performed by HHSC prior to occupancy. The completed construction must have the written approval of the local authorities having jurisdiction, including the fire marshal and building official. When construction or building rehabilitation does not alter the licensed capacity of a facility, based on submitted documentation and the scope of the performed building rehabilitation, HHSC may permit a facility to use the rehabilitated portion of a facility pending a final construction inspection or may determine a final construction inspection is not required.
(2) An applicant may obtain the inspection described in paragraph (1) of this subsection on an expedited basis. An applicant may obtain a Life Safety Code inspection within 15 business days after HHSC receives a written request if the applicant submits:

(A) a complete application as required in §19.201(b) of this chapter (relating to Criteria for Licensing) and §19.204 of this chapter (relating to Application Requirements); and
(B) the appropriate Life Safety Code fee listed in §19.220 of this chapter (relating to Expedited Life Safety Code and Physical Plant Inspection Fees).

(3) After the completed construction is surveyed and found acceptable by HHSC, this information is conveyed to the licensing officer as part of the information needed to issue a license to the facility. Additions to or rehabilitation of existing facilities may require a revision or modification to an existing license. The building, including basic furnishings and operational needs, grades, drives, parking, and grounds must be essentially 100% complete at the time of this initial survey visit for HHSC to approve occupancy and licensing. A facility may accept up to three residents between the time it receives initial approval from HHSC and the time the license is issued.
(4) A copy of the following documents must be provided to HHSC at the time of the survey of the completed building. HHSC may request some or all of these documents prior to scheduling the initial survey:

(A) written approval of local authorities as called for in paragraph (1) of this subsection;
(B) record drawings of the fire detection and alarm system as installed, signed by an Alarm Planning Superintendent licensed by the State Fire Marshal's Office or sealed by a licensed professional engineer, including a sequence of operation, the owner's manuals and the manufacturer's published instructions covering all system equipment, a signed copy of the State Fire Marshal's Office, Fire Alarm Installation Certificate, and, for software-based systems, a record copy of the site-specific software, excluding the system executive software or external programmer software, in a non-volatile, non-erasable, non-rewritable memory;
(C) documentation of materials used in the building that are required to have a specific limited fire resistant or flame spread rating including special wall finishes or floor coverings; flame retardant curtains, including cubicle curtains; and fire resistance-rated ceilings. This documentation must include a signed letter from the installer verifying the material installed, such as carpeting, is the same material named in the documented fire test;
(D) record drawings of the fire sprinkler system as installed, signed by a Responsible Managing Employee licensed by the State Fire Marshal's Office, or sealed by a licensed professional engineer, including the hydraulic calculations, alarm configuration, Contractor's Material and Test Certificates for Aboveground and Underground Piping, and all literature and instructions provided by the manufacturer describing the proper operation and maintenance of all equipment and devices with NFPA 25;
(E) service contracts for maintenance and testing of systems, including alarm systems and sprinkler systems;
(F) a copy of gas pressure test results of the facility's gas lines from the meter to gas-fired equipment and appliances;
(G) a written statement from an architect or engineer certifying the building was constructed to meet NFPA 101, all locally applicable codes, and that the facility substantially conforms to the 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 survey of completed construction, the surveyor finds certain basic requirements not met, HHSC will not license the facility or approve it for occupancy. Such basic items may include the following:

(A) construction that does not meet minimum code or licensure standards for basic requirements such as 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 minimum dimensions, and other similar features which would disrupt or otherwise adversely affect the residents and staff if corrected after occupancy;
(B) absence of written approval by local authorities;
(C) fire protection systems that are not completely installed or not functioning properly including fire alarm systems, emergency power and lighting, and sprinkler systems;
(D) required exits are not all usable according to NFPA 101 requirements;
(E) telephones that are not installed or not properly working;
(F) sufficient basic furnishings, essential appliances and equipment that are not installed or are not functioning; and
(G) any other basic operational or safety feature that the surveyor, as the authority having jurisdiction, encounters that in his 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) A facility must submit copies of reduced size floor plan on 8-1/2 inch by 11 inch sheets to HHSC for record and file use and for the facility to use in evacuation planning and fire alarm zone identification. Plans must contain basic legible information such as overall dimensions, room usage names, actual bedroom numbers, doors, windows, and any other pertinent information.

 

Division 5 Facilities Licensed on or After September 11, 2013, and Before April 2, 2018

 

§19.331 Construction Standards

(a) This section applies to a facility constructed or licensed on or after September 11, 2003, but before April 2, 2018. The requirements of NFPA 101 and other applicable NFPA codes and standards referenced in NFPA 101 will apply unless otherwise noted or modified in this section:

(1) Buildings that were constructed or that received design approval or building permits before July 5, 2016, must comply with the Existing Health Care Occupancies chapter of NFPA 101. All other buildings covered by this section must comply with the New Health Care Occupancies chapter of NFPA 101.
(2) In addition to NFPA 101 and the standards referenced therein, a facility covered by this division is subject to the codes, standards, and requirements established by the following: UL; ASHRAE; and ASTM.

(b) All applicable local, state, or national codes and ordinances must be met as determined by the authority having jurisdiction for those codes and ordinances by HHSC. Any conflicts must be made known to HHSC for appropriate resolution.
(c) The design of structural systems must be done by or under the direction of a professional engineer who is currently licensed by the Texas State Board of Professional Engineers.
(d) Nothing in this division may be construed as prohibiting a better type of building or construction, more space, services, features, or greater degree of safety than the minimum requirements.

 

§19.332 Location and Site

(a) Any conditions considered to be a fire, safety, or health hazard will be grounds for disapproval of the site by HHSC. New facilities may not be built in an area designated as a floodplain of 100 years or less.
(b) Site grades must provide for positive surface water drainage so that there will be no ponding or standing water on the designated site. This does not apply to local government requirements for engineered controlled run-off holding ponds.
(c) Exit doors from the building must not open directly onto a drive for vehicular traffic, but must be set back at least six feet from the edge of the drive, measured from the end of the building wall in the case of a recessed door, to prevent accidents due to lack of visual warning.
(d) Walks must be provided as required from all exits and must be of non-slip surfaces free of hazards. Walks must be at least 48 inches wide except as otherwise approved. Ramps should be used in lieu of steps where possible for individuals with a disability and to facilitate bed or wheelchair removal in an emergency.
(e) Outdoor activity, recreational, and sitting spaces must be provided and appropriately designed, landscaped, and equipped. Some shaded or covered outside areas are needed. These areas must be designed to accommodate residents in wheelchairs.
(f) Each facility must have parking space to satisfy the needs of residents, employees, staff, and visitors. In the absence of a formal parking study, each facility must provide for a ratio of at least one parking space for every four beds in the facility. This ratio may be reduced slightly in areas convenient to public parking facilities. Space must be provided for emergency and delivery vehicles. No parking space may block or inhibit egress from the outside exit doors. Parking spaces and drives must be at least ten feet away from windows in bedrooms, dining, and living areas.
(g) Barriers must be provided for resident safety from traffic or other site hazards by the use of appropriate methods such as fences, hedges, retaining walls, railings, or other landscaping. These barriers must not inhibit the free emergency egress to a safe distance away from the building.
(h) Auxiliary buildings located within 20 feet of the main building must meet the applicable NFPA 101 requirements for separation and construction.
(i) Other buildings on the site must meet the appropriate occupancy section or separation requirements of NFPA 101.
(j) Fire service and access must be as follows:

(1) The facility must be served by a paid or volunteer fire department. The fire department must provide written assurance to HHSC that the fire department can respond to an emergency at the facility within an appropriately prompt time for the travel conditions involved.
(2) The facility must be served by an adequate water supply that is satisfactory and accessible for fire department use as determined by the fire department serving the facility and by HHSC.
(3) There must be at least one readily accessible fire hydrant located within 300 feet of the building. The hydrant must be on a minimum six inch service line, or else there must be an approved equivalent, such as a storage tank. The hydrant, its location, and service line, or equivalent must be as approved by the local fire department and HHSC.
(4) The building must have suitable all-weather fire lanes for access as required by local fire authorities and HHSC. As a minimum, there must be access to two sides of the building by an all-weather lane.

(k) Enclosed exterior spaces, such as fenced areas, that are in a means of egress to a public way must meet the requirements of §19.2208(a)(6) of this chapter (relating to Standards for Certified Alzheimer's Facilities).

 

§19.333 General Considerations

(a) Services. Nursing facilities must either contain the elements described in this section or the facility must indicate the manner in which the needed services are to be made available. Appropriate modifications or deletions in space requirements may be made when services are shared or purchased.
(b) Sizes. The sizes of the various departments will depend upon program requirements and organization of services within the facility. Some functions requiring separate spaces or rooms in these minimum requirements may be combined provided that the resulting plan will not compromise the best standards of safety and of medical and nursing practices.
(c) Shared or combined services. Nursing facilities may be operated together with hospitals and may share administration, food service, recreation, janitor service, and physical therapy facilities, but must have clearly identifiable physical separations such as a separate wing or floor. Nursing facilities with different levels of care will require identifiable physical separations. Combined attendant or nurses’ stations and medication room areas will require some separating construction features.
(d) Exterior finishes. Unless otherwise approved by HHSC, the exterior finish material of buildings classified as fire resistive or protected noncombustible construction, per NFPA 220, must have a flame spread index no greater than 25 and a smoke developed index no greater than 450, when tested in accordance with ASTM E84 or UL 723. All other exterior materials must have a flame spread index no greater than 75 and a smoke developed index no greater than 450. Items of trim may be of combustible material subject to approval by HHSC. Roof covering assemblies must have a Class A or Class B rating, when tested in accordance with ASTM E108 or UL 790.
(e) Accessibility for individuals with disabilities. The facility must comply with accessibility requirements for individuals with disabilities in the revised regulations for Title II and III of the Americans with Disabilities Act at CFR Part 35 and Part 36, also known as the 2010 ADA Standards for Accessible Design and the TAS adopted by the Texas Department of Licensing and Regulation (TDLR) rules at 16 TAC Chapter 68. A facility must register plans for new construction, substantial renovations, modifications, and alterations with TDLR, Attn: Elimination of Architectural Barriers Program, and comply with TAS.

 

§19.334 Architectural Space Planning and Utilization

(a) Resident bedrooms. Each resident bedroom must meet the following requirements:

(1) The maximum room capacity must be four residents.
(2) No more than 25% of the total licensed beds may be in bedrooms with more than two beds each.
(3) Minimum bedroom area, excluding toilet rooms, closets, lockers, wardrobes, alcoves, or vestibules, must be 100 square feet in single occupancy rooms and 80 square feet per bed in multi-bed rooms.
(4) The minimum allowable room dimension is 10 feet. The room must be designed to provide at least 36 inches between beds and 24 inches between any bed and the adjacent wall.
(5) Each room must have at least one operable outside window arranged and located so that it can be easily opened from the inside without the use of tools or keys. The maximum allowable sill height must not exceed 36 inches above the floor. All operable windows must have insect screens. The minimum area of a window in each bedroom must equal at least 16 square feet or 8.0% of the room area, whichever is larger. Operable window sections may be restricted to not more than six nor less than four inches for security or safety reasons.
(6) Each room must have general lighting, wall-mounted bed reading lights, and night lighting. The night light must be switched just inside the entrance to each resident room with a silent type switch unless otherwise approved by HHSC. The light providing general illumination must be switchable at the door of the resident room for use of staff and residents. A durable non-glare reading light with an opaque front panel securely anchored to the wall, integrally wired, must be provided for each resident bed. The switch must be within reach of a resident in the bed.
(7) Two duplex or a fourplex grounding type receptacles must be provided beside the head of each bed. Other walls must have duplex receptacles as needed for TV, radio, razors, hairdryers, clocks, and as required by NFPA 70.
(8) Each resident must have access to a toilet room without entering the general corridor area. One toilet room must serve no more than two resident rooms. The toilet room must contain a water closet and a lavatory. The lavatory may be omitted from a toilet room which serves two bedrooms if each resident room contains a lavatory.
(9) Each resident must have a bed with a comfortable mattress, a bedside stand with at least two enclosed storage spaces, a dresser, and closet or wardrobe space providing privacy for clothing and personal belongings. Clothes storage space must provide at least 22 inches of lineal hanging space per bed and have closable doors. Chairs and space must be provided for use by residents and visitors.
(10) Each room must open onto an exit corridor and must be arranged for convenient resident access to dining, living, and bathing areas.
(11) Visual privacy such as cubicle curtains must be available for each resident in multi-bed rooms. Design for privacy must not restrict resident access to entry, lavatory, or toilet, nor may it restrict bed evacuation or obstruct sprinkler flow coverage.
(12) At least one noncombustible wastebasket must be provided in each bedroom.
(13) See the requirements in §19.341(d)(4) of this title (relating to Electrical Requirements) for nurse call systems.
(14) Bedrooms must be identified with a raised or recessed unique number placed on or near the door. Refer to §19.333(g) of this subchapter (relating to General Considerations).
(15) Locks on bedroom doors are permitted when they meet definite resident needs.

(A) Situations in which locking may be necessary include the following:

(i) married couples whose rights of privacy could be infringed upon unless bedroom door locks are permitted; and
(ii) residents for whom the attending physician wants bedroom door locks to enhance the residents’ sense of security.

(B) In situations such as those listed in subparagraph (A) of this paragraph, the following guidelines must be met:

(i) bedroom door locks must be of the type which the occupant can unlock at will from inside the room;
(ii) all bedroom door locks must be of the type which can be unlocked from the corridor side;
(iii) attendants must carry keys which will permit ready access to the locked bedrooms when entrance becomes necessary; and
(iv) locking of bedroom doors by residents for privacy or security will not be permitted except when specifically included in the attending physician's written orders or authorized by the nursing facility administrator.

(16) Vacant bedrooms must not be used for hazardous activities or hazardous storage, unless specifically approved by HHSC in writing.

(b) Nursing service areas. The service areas described in this subsection must be located in or readily available to each nursing unit. The size and disposition of each service area will depend upon the number and types of beds to be served. Each service area may be arranged and located to serve more than one nursing unit, but at least one service area must be provided on each nursing floor. The maximum allowable distance from a resident room door to a nurses’ station is 150 feet. The following requirements are applicable to services areas:

(1) Nurses’ stations must be provided with space for nurses' charting, doctors' charting, and storage for administrative supplies. Nurses’ stations must be located to provide a direct view of resident corridors. A direct view of resident corridors is acceptable if a person can see down the corridors from a point within 24 inches of the outside of the nurses’ station counter or wall. When a nurses’ station does not provide a direct view of resident corridors, an auxiliary station complying with the following guidelines must be provided.

(A) The auxiliary station must be staffed by nursing personnel during all shifts.

(i) More than one auxiliary station may be assigned to a designated nurses’ station, regardless of the distance between stations.
(ii) The nurse call system for resident corridors monitored by the auxiliary station must report to the auxiliary station.
(iii) Each auxiliary station must meet the emergency electrical requirements for a nurses’ station, including electrical receptacles and emergency lighting.
(iv) If a required auxiliary station does not already exist and the facility must establish a new auxiliary station, all applicable standards, particularly those pertaining to the physical plant and NFPA 101, must be observed.

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

(2) Lounge and toilet room must be provided for nursing staff.
(3) Lockers or security compartments must be provided for the safekeeping of personal effects of staff. These must be located convenient to the duty station of personnel or in a central location.
(4) Clean utility room must contain a work counter, sink with high-neck faucet with lever controls, and storage facilities and must be part of a system for storage and distribution of clean and sterile supply materials.
(5) Soiled utility room must contain a water closet or equivalent flushing rim fixture, a sink large enough to submerge a bedpan with spray hose and high-neck faucet with lever controls, work counter, waste receptacle, and linen receptacle. These utility rooms must be part of a system for collection and cleaning or disposal of soiled utensils or materials. A separate hand-wash sink must be provided if the bedpan disinfecting sink cannot normally be used for hand-washing.
(6) Provision must be made for convenient and prompt 24-hour distribution of medication to residents. The medication preparation room must be under the nursing staff's visual control and contain a work counter, refrigerator, sink with hot and cold water, and locked storage for biologicals and drugs and must have a minimum area of 50 square feet. The minimum dimension allowed is five feet six inches. An appropriate air supply must be provided to maintain adequate temperature and ventilation for safe storage of medications. For purposes of storage of unrefrigerated medications, the room temperature must be maintained between 59 degrees and 86 degrees Fahrenheit.
(7) Provision must be made for separate closets or room for clean linens. Corridors must not be used for folding or cart storage. Storage rooms must be located and distributed in the building for efficient access to bedrooms.
(8) Soiled linen rooms must be provided as required in subsection (l) of this section.
(9) Nourishment stations are usually required in all but the smaller facilities and must contain a sink equipped for hand-washing, equipment for serving nourishment between scheduled meals, refrigerator, and storage cabinets. Ice for residents' service and treatment must be provided only by icemaker units. This station may be furnished in a clean utility room.
(10) An equipment storage room must be provided for equipment such as intravenous stands, inhalators, air mattresses, and walkers.
(11) Parking spaces for stretchers and wheelchairs must be located out of the path of normal traffic.

(c) Residents' bathing and toilet facilities. The following requirements are applicable to bathing and toilet facilities:

(1) Bathtubs or showers must be provided at the rate of one for each 20 beds which are not otherwise served by bathing facilities within residents' rooms. At least one bathing unit must be provided in each nursing unit. Each tub or shower must be in an individual room or enclosure which provides space for the private use of the bathing fixture, for drying and dressing, and for a wheelchair and an attendant. Each general-use bathing room must be provided with at least one water closet, in a stall, room, or area for privacy, and one lavatory. A bathing room must be located conveniently to the bedroom area it serves and must not be more than 100 feet from the farthest bedroom. See requirements in subsection (a)(8) of this section for resident toilets at bedrooms.
(2) At least 50% of bathrooms and toilet rooms, fixtures, and accessories must be designed and provided to meet criteria under the Americans with Disabilities Act for individuals with disabilities unless otherwise approved by HHSC.
(3) All rooms containing bathtubs, sitz baths, showers, and water closets, subject to occupancy by residents, must be equipped with swinging doors and hardware which will permit access from the outside in any emergency.
(4) Bathing areas must be provided with safe and effective auxiliary or supplementary heating. Bathing areas must be free of drafts and must have adequate exhaust ducted to the outside to minimize excess moisture retention and resulting mold and mildew problems.
(5) Tubs and showers must be provided with slip-proof bottoms.
(6) Lavatories and hand-washing facilities must be securely anchored to withstand an applied downward load of not less than 250 pounds on the front of the fixtures.
(7) Provision must be made for sanitary hand drying and toothbrush storage at lavatories. There must be paper towel dispensers or separate towel racks and separate toothbrush holders.
(8) Mirrors must be arranged for convenient use by residents in wheelchairs as well as by residents in a standing position, and the minimum size must be 15 inches in width by 30 inches in height, or tilt type.
(9) Rooms with toilets must be provided with effective forced air exhaust ducted to the exterior to help remove odors. Ducted manifold systems are recommended for some multiple-type installations.
(10) Floors, walls, and ceilings must have nonabsorbent surfaces, be smooth, and easily cleanable.

(d) Disposal facilities. A policy and procedure for the safe and sanitary disposal of special waste must be provided. Space and facilities must be provided for the sanitary storage of waste by incineration, mechanical destruction, compaction, containerization, removal, or by a combination of these techniques.
(e) Resident living areas. The following requirements are applicable to resident living areas:

(1) Social-diversional spaces such as living rooms, dayrooms, lounges, sunrooms, must be provided on a sliding scale as follows:

Number of Beds Area Per Bed Minimum
4-15 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 (Example: 100 beds = 1,000 square feet)

 

(2) Where a required way of exit or a service way is through a living or dining area, a pathway equal to the corridor width will normally be deducted for calculation purposes and discounted from that area. These exit pathways must be kept clear of obstructions.
(3) Each resident living room and dining room must have at least one outside window. The window area must be equal to at least 8.0% of the total room floor area. Sky-lighting may be used to fulfill one-half of the 8.0% minimum area.
(4) Open or enclosed seating space must be provided within view of the main nurse station that will allow furniture or wheelchair parking that does not obstruct the corridor way of egress.

(f) Dining space. Dining space must be adequate for the number of residents served, but not less than 10 square feet per resident bed.
(g) Dietary facilities. The following requirements are applicable to dietary facilities:

(1) Main or dietary kitchens must be as follows:

(A) Kitchens will be evaluated on the basis of their performance in the sanitary and efficient preparation and serving of meals to residents. Consideration will 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 must include a large-scale detailed kitchen layout designed by a registered or licensed dietitian or architect having knowledge in the design of food service operations.
(B) Kitchens must be designed so that room temperature at summertime peak load will not exceed a temperature of 85 degrees Fahrenheit measured over the room at the five-foot level. The amount of supply air must take into account the large quantities of air that may be exhausted at the range hood and dishwashing area.
(C) Operational equipment must be provided as planned and scheduled by the facility consultants for preparing and serving meals and for refrigerating and freezing of perishable foods, as well as equipment in, or adjacent to, the kitchen or dining area for producing ice.
(D) Facilities for washing and sanitizing dishes and cooking utensils must be provided. These facilities must be designed based on the number of meals served and the method of serving, that is, use of permanent or disposable dishes. As a minimum, the kitchen must contain a multi-compartment sink large enough to immerse pots and pans. In all facilities, a mechanical dishwasher is required for washing and sanitizing dishes. Separation of soiled and clean dish areas must be maintained, including air flow.
(E) A vegetable preparation sink must be provided, and it must be separate from the pot sinks.
(F) A supply of hot and cold water must be provided. Hot water for sanitizing purposes must be 180 degrees Fahrenheit or the manufacturer's suggested temperature for chemical sanitizers. For mechanical dishwashers the temperature measurement is at the manifold.
(G) A kitchen must be provided with a hand-washing lavatory in the food preparation area with hot and cold water, soap, paper towel dispenser, and waste receptacle. The dish room area must have ready access to a handwashing lavatory.
(H) Staff rest room facilities with lavatory must be directly accessible to kitchen staff without traversing resident use areas. The rest room door must not open directly into the kitchen, that is, provide a vestibule.
(I) Janitorial facilities must be provided exclusively for the kitchen and must be located in the kitchen area.
(J) Nonabsorbent smooth finishes or surfaces must be used on kitchen floors, walls, and ceilings. These surfaces must be capable of being routinely cleaned and sanitized to maintain a healthful environment. Counter and cabinet surfaces, inside and outside, must also have smooth, cleanable, relatively nonporous finishes.
(K) Operable windows must have insect screens provided.
(L) Doors between kitchen and dining or serving areas must have a safety glass view panel.
(M) A garbage can or cart washing area with drain and hot water must be provided.
(N) Floor drains must be provided in the kitchen and dishwashing areas.
(O) Vapor removal from cooking equipment must be designed and installed in accordance with NFPA 96.
(P) Grease traps must be provided in compliance with local plumbing code or other nationally recognized plumbing code.

(2) Food storage areas must be as follows:

(A) Food storage areas must provide for storage of a seven-day minimum supply of nonperishable foods at all times.
(B) Shelves must be adjustable wire type. Walls and floors must have a nonabsorbent finish to provide a cleanable surface. No foods may be stored on the floor; dollies, racks, or pallets may be used to elevate foods not stored on shelving.
(C) Dry foods storage must have an effective venting system to provide for positive air circulation.
(D) The maximum room temperature for food storage must not exceed 85 degrees F at any time. The measurement must be taken at the highest food storage level but not less than five feet from the floor.
(E) 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 usage.

(3) Auxiliary serving kitchens not contiguous to food preparation or serving area must be as follows:

(A) Where service areas other than the kitchen are used to dispense foods, these must be designated as food service areas and must have equipment for maintaining required food temperatures while serving.
(B) Separate food service areas must have hand-washing facilities as a part of the food service area.
(C) Finishes of all surfaces, except ceilings, must be the same as those required for dietary kitchens or comparable areas. See subsection (g)(1)(J) of this subsection.

(h) Administrative and public areas.

(1) The following elements must be provided in the public area:

(A) The entrance must be at grade level, sheltered from the weather, and able to accommodate wheelchairs. A drive-under canopy must be provided for the protection of residents or visitors entering or leaving a vehicle. The latter may be a secondary entrance.
(B) The lobby must include:

(i) storage space for wheelchairs if more than one is kept available;
(ii) a reception or information area, which may be adjacent to the lobby if location is obvious;
(iii) waiting space;
(iv) public toilet facilities for individuals with disabilities, which may be adjacent to lobby;
(v) at least one public access telephone, installed to meet standards under the Americans with Disabilities Act; and
(vi) drinking fountains. These may be provided in a common public area and at least one must be installed to meet standards under the Americans with Disabilities Act; and

(C) A lobby may also be use-designed to satisfy a portion of the minimum area required for resident living room space.

(2) The following must be provided in the administrative area:

(A) General or individual offices for business transactions, medical and financial records, administrative and professional staff, and for private interviews relating to social service, credit, and admissions.
(B) A multipurpose room for conferences, meetings, and health education purposes including facilities for showing visual aids.
(C) Storage and work area for office equipment and supplies must be provided and accessible to the staff using such items.

(3) Toilet facilities for the disabled must be available in the building.

(i) Physical therapy facilities.

(1) Physical therapy facilities must be provided if required by the treatment program. The facilities stated in subparagraph (B) of this paragraph and paragraph (2)(C)-(E) of this subsection may be planned and arranged for shared use by occupational therapy residents and staff if the treatment program reflects this sharing concept. Physical therapy facilities must include the following:

(A) Provision for privacy at each individual treatment area.
(B) Hand-washing facilities and one lavatory or sink may serve more than one cubicle.
(C) Facilities for the collection of soiled linen and other material that may be used in the therapy.
(D) Residents' dressing areas, showers, lockers, and toilet rooms, if the therapy is such that these would be needed at the area.

(2) Physical therapy facilities may also include the following:

(A) treatment areas with space and equipment for therapies provided;
(B) an exercise area;
(C) storage for clean linen, supplies, and equipment used in therapy;
(D) service sink located near therapy area; and
(E) wheelchair and stretcher storage.

(j) Occupational therapy. Occupational therapy facilities must be provided if required by the treatment program.

(1) An activities area with a sink or lavatory and facilities for collection of waste products prior to disposal must be provided.
(2) Storage for supplies and equipment used in the therapy must be provided.

(k) Personal grooming area, such as a barber or beauty shop. A separate room with appropriate equipment must be provided for hair care and grooming needs of residents in facilities with over 60 beds.
(l) Laundry and linen services.

(1) On-site processing must be as follows:

(A) Because of the high incidence of fires in laundries, it is highly recommended that the laundry be in a separate building 20 feet or more from the main building. If the laundry is located within the main building it must be separated by minimum one-hour fire construction to structure above, and sprinklered, and must be located in a remote area away from resident sleeping areas. Access doors must be from an interior nonresident use area, such as a service corridor, that is separated from the resident area, or from the exterior.
(B) If linen is to be processed on the site, the following must be provided:

(i) A soiled linen receiving, holding, and sorting room with a rinse sink. This area must have a floor drain and forced exhaust to the exterior which must operate at all times there is soiled linen being held in the area.
(ii) A laundry processing room with equipment which can process seven days needs within a regularly scheduled work week. Hand-washing facilities must be provided. The washer area must have:
(I) a floor drain;
(II) storage for laundry supplies;
(III) a clean linen inspection and mending room or area and a folding area;
(IV) a clean linen storage, issuing, or holding room or area;
(V) a janitors' closet containing a floor receptor or service sink and storage space for housekeeping equipment and supplies; and
(VI) sanitizing and washing facilities and a storage area for carts.

(C) Soiled and clean operations must be planned to maintain sanitary flow of functions as well as air flow. If carts containing soiled linens from resident rooms are not taken directly to the laundry area, intermediate holding rooms must be provided and located convenient to resident bedroom areas.
(D) Laundry areas must have adequate air supply and ventilation for staff comfort without having to rely on opening a door that is part of the fire wall separation.
(E) Provisions must be made to exhaust heat from dryers and to separate dryer make-up air from the habitable work areas of the laundry.

(2) For off-site linen processing, the following must be provided on the premises:

(A) a soiled linen holding room provided with adequate forced exhaust ducted to the exterior;
(B) clean linen receiving, holding, inspection, sorting or folding, and storage rooms; and
(C) sanitizing facilities and storage area for carts.

(3) Resident-use laundry, if provided, must be limited to not more than one residential type washer and dryer per laundry room. This room must be classified as a hazardous area according to NFPA 101.

(m) General storage. The following requirements are applicable to general storage facilities:

(1) A general storage room must be provided as needed to accommodate the facility's needs. It is recommended that a general storage area provide at least two square feet per resident bed. This area would be for items such as extra beds, mattresses, appliances, and other furnishing and supplies.
(2) Storage space with provisions for locking and security control should be provided for residents' personal effects which are not kept in their rooms.

(n) Janitors' closet. In addition to the janitors' closet called for in certain departments, a sufficient number of janitors' closets must be provided throughout the facility to maintain a clean and sanitary environment. These must contain a floor receptor or service sink and storage space for housekeeping equipment and supplies.
(o) Maintenance, engineering service, and equipment areas. Space and facilities for adequate preventive maintenance and repair service must be provided. The following spaces are needed and it is suggested that these be part of a separate laundry building or area:

(1) A storage area for building and equipment maintenance supplies, tools, and parts must be provided.
(2) A space for storage of yard maintenance equipment and supplies, including flammable liquids bulk storage, must be provided separate from the resident-occupied facility.
(3) A maintenance and repair workshop of at least 120 square feet and equipment to support usual functions is recommended.
(4) A suitable office or desk space for the maintenance staff is recommended, possibly located within the repair shop area, with space for catalogs, files, and records.

(p) Oxygen. The storage and use of oxygen and equipment must meet applicable NFPA standards for oxygen, including NFPA 99.

 

§19.335 Exit Provisions

Exit provisions, including doors, corridors, stairways, and other exit-ways, locks, and other applicable items must conform to the requirements of NFPA 101 concerning means of egress and of this section in order to ensure that residents can be rapidly and easily evacuated from the building at all times, or from one part of the building to a safe area of refuge in another part of the building. Exit provisions are as follows:

(1) Bedroom space arrangement and doors and corridors must be designed for evacuation of bedfast residents by means of rolling the bed to a safe place in the building or to the outside.
(2) Public assembly, common living rooms, dining rooms, and other rooms with a capacity of 50 or more persons or greater than 1,000 square feet must have two means of exit remote from each other. Out-swinging doors with panic hardware must be provided for these exits.
(3) Exit doors and ways of egress must be maintained clear and free for use at all times, except as permitted my NFPA 101. Furnishings, equipment, carts, and other obstacles must not be left to block egress at any time.
(4) Steps in interior ways of egress are prohibited. If changes of elevation are necessary within ways of egress, approved ramps with maximum slope of one unit of rise to 12 units of run must be used.
(5) Doors in means of egress must be as follows:

(A) Locking hardware or devices which are capable of preventing or inhibiting immediate egress must not be used in any room or area that can be occupied.
(B) A latch or other fastening device on an exit door must be provided with a knob, handle, panic bar, or similar releasing device. The method of operation must be obvious in the dark, without use of a key, and operable by a well known one-action operation that will easily operate with normal pressure applied to the door or to the device toward the exterior. Locking hardware which prevents unauthorized entry from the outside is permissible. Self-closing devices and permanently mounted hold-open devices to expedite emergency egress and prevent accidental lock-out must be provided for exterior exit doors.
(C) No screen or storm door may swing against the direction of exit travel where main doors are required to swing out.
(D) To aid in control of wandering residents, buzzers or other sounding devices may be used to announce the unauthorized use of an exit door. Other methods include approved emergency exit door locks or fencing with a gate outside of exit doors which enclose a space large enough to allow the space to be an exterior area of egress and refuge away from the building.
(E) Inactive leaves of double doors may have easily accessible and easily operable bolts if the active leaf is 44 inches wide, where permitted by NFPA 101. Center mullions are prohibited.
(F) Resident baths or toilets having privacy locks will require that keys or devices for opening the doors are kept readily available to the staff.
(G) Folding doors must not be used in exit corridors or exit-ways. Sliding doors, where permitted by NFPA 101, may be used as secondary doors from residents' bedrooms to grade or to a balcony, or in certain other areas, where permitted by NFPA 101. Corridor doors to rooms must swing into the room or be recessed so as not to extend into the corridor when open; however, doors ordinarily kept closed may be excepted.

(6) Horizontal exits, if provided, must be according to NFPA 101.
(7) Areas outside of exterior exit doors must be as follows:

(A) Provision must be made to accommodate and facilitate continuation of emergency egress away from a building for a reasonable distance beyond the outside exit door, especially for movement of non-ambulatory residents in wheelchairs and beds. Any condition which may retard or halt free movement and progress outside the exit doors will not be allowed. Ramps must be used outside the exit doors in lieu of steps whenever possible.
(B) The landing outside of each exit door must be essentially the same elevation as the interior floor and level for a distance equal to the door width plus at least four feet. Generally, the difference in floor elevation at an exterior door must not be over 1/2 inch with the outside slope not to exceed 1/4 inch per foot sloping away from the door for drainage on the exterior. In locations north of the +20 Fahrenheit Isothermal Line as defined in the ASHRAE Handbook of Fundamentals, the landing outside of all exit doors must be protected from ice build-up which would prohibit the door from opening and be a slip hazard.
(C) Emergency egress lighting immediately outside of exit doors is required as a part of the building emergency lighting system. Photocell devices may be used to turn lights off during daylight hours.

(8) The requirements of an emergency lighting system must be in accordance with §19.341 of this title (relating to Electrical Requirements).

 

§19.336 Smoke Compartmentation (Subdivision of Building Spaces)

(a) Smoke compartmentation must be as described in the Life Safety Code and in this section.
(b) An exit sign must be provided on each side of corridor smoke doors unless otherwise directed by the Texas Department of Human Services (DHS).
(c) The metal frames for the wire glass view panels in smoke doors must be steel, unless otherwise approved by DHS. The bottom of the view panel must not be higher than 54 inches above the floor. Pairs of opposite (double egress) swinging smoke doors in corridors must have push/pull hardware. The door leaves must align in the closed position.
(d) Smoke barrier walls in concealed spaces such as attics, must have prominent signs on each side that read: "Warning: Smoke/fire barrier. Properly seal all openings."
(e) Provisions must be made for reasonable access to concealed smoke barrier walls for maintaining smoke dampers and so that walls and dampers can be visually checked periodically for conformance by facility staff, service persons, and inspectors. Access must provide for visual inspection of both sides of the wall, and of all parts (end-to-end and top-to-bottom). Ceiling access panels must be prefabricated metal panel, or its equivalent, and be at least 20 inches by 20 inches with no obstructions above (such as ducts) to hamper entrance, and it must be fire rated if required to maintain ceiling-roof or ceiling-floor fire rating. Access must be provided for both sides of the wall.
(f) Air systems should be designed to avoid having ducts which penetrate smoke barrier walls, thus eliminating the need for smoke dampers which are often a problem to maintain in proper working condition.

 

§19.337 Fire Protection Systems

(a) Fire protection systems include detection, alarm, and communication systems; fixed automatic extinguishment systems; and portable extinguishers. These systems must meet the requirements of the Life Safety Code, and of this section. Components must be compatible and laboratory listed for the use intended.
(b) Fire protection systems must meet the requirements of all applicable National Fire Protection Association (NFPA) standards, such as NFPA 72 for alarm systems, as referenced in the Life Safety Code. Wiring and circuitry for alarm systems must meet the applicable requirements of NFPA standards including the NFPA 70 for these systems.
(c) Requirements of emergency electrical systems must be in accordance with §19.341 of this title (relating to Electrical Requirements). Requirements for sprinkler systems must be in accordance with §19.340(4) of this title (relating to Mechanical Requirements).
(d) Partial sprinkler systems (those provided only for hazardous areas) must be interconnected with the fire alarm and comply with the Life Safety Code. Each partial system must have a valve with a supervisory switch to sound a trouble signal, water flow switch to activate the fire alarm, and an end-of-line test drain.
(e) Fire alarm systems must be installed, maintained, and repaired by an agent having a current certificate of registration with the State Fire Marshal's office of the Texas Commission on Fire Protection, in accordance with state law. A fire alarm installation certificate must be provided as required by the Office of the State Fire Marshal.
(f) The fire alarm system must be designed so that whenever the general alarm is sounded by activation of any device (such as manual pull, smoke sensor, sprinkler, or kitchen range hood extinguisher), the following must occur automatically:

(1) smoke and fire doors which are held open by approved devices must be released to close;
(2) air handlers (air conditioning and/or heating distribution fans) serving three or more rooms or any means of egress must shut down immediately;
(3) smoke dampers must close; and
(4) the alarm-initiating-device location must be clearly indicated on the fire alarm control panel(s) and all auxiliary panels.

(g) Fire alarm bells or horns must be located throughout the building for audible coverage. Flashing alarm lights (visual alarms) must be installed to be visible in corridors and public areas including dining rooms and living rooms in a manner that will identify exit routes.
(h) A master control panel indicating the location of all alarm, trouble, and supervisory signals, by zone or device, must be visible at the main nurse station. Fire alarm system components must be laboratory-listed as compatible. Alarm and trouble zoning must be by smoke compartments and by floors in multi-story facilities.
(i) Remote annunciator panels, indicating location of alarm initiation, by zone or device, and trouble indication, must be located at auxiliary or secondary nurse stations on each floor, and will indicate the alarm condition of adjacent zones and the alarm conditions at all other nurse stations.
(j) Manual pull stations must be provided at all exits, living rooms, dining rooms, and at or near the nurse stations.
(k) The sprinkler system must be monitored for flow and tamper conditions by the fire alarm system.
(l) The kitchen range hood extinguisher must 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.
(m) Portable fire extinguishers must be provided throughout the facility as required by NFPA Standard 10 and as determined by the local fire department and the Texas Department of Human Services. The following requirements are applicable to fire 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 for water type or 5 pound for ABC type.
(2) Extinguishers must be installed on hangers or brackets supplied or mounted in approved cabinets. Recessed cabinets are required for extinguishers located in corridors.
(3) Extinguishers installed under conditions where they are subject to physical damage must be protected from impact 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 having a gross weight greater than 40 pounds must be installed so that the top of the extinguisher is not more than 3-1/2 feet above the floor. In no case may the clearance between the bottom of the extinguisher and the floor be less than four inches.
(5) Portable extinguishers provided in hazardous rooms should be located as close as possible to the exit door opening and nearest the latch (knob) side.

 

§19.338 Hazardous Areas

(a) Protection from hazardous areas must be as required in NFPA 101, except as required or modified in this section. Gas-fired equipment must not be located in attic spaces, except under the following conditions:

(1) the area around the units must be constructed to be one-hour fire rated;
(2) the enclosure must have sprinkler protection; and
(3) combustion and venting air must be ducted from the exterior in properly sized metal ducts.

(b) Laboratories must be protected according to NFPA 99.
(c) Cooking equipment must be protected according to NFPA 101.
(d) Doors to hazardous areas must have closers and be kept closed unless provided with an approved hold-open device such as an alarm activated magnetic hold-open device, as permitted by NFPA 101. Doors must be single-swing type with positive latching hardware. View panels at laundry entrances must be provided and be of materials adequate to maintain the integrity of the door as allowed by NFPA 101.

 

§19.339 Structural Requirements

(a) Every building and every portion thereof must be designed and constructed to sustain all dead and live loads in accordance with accepted engineering practices and standards.
(b) Special provisions must be made in the design of buildings in regions where local experience shows loss of life or extensive damage to buildings resulting from hurricanes, tornadoes, earthquakes, or floods.
(c) The sponsor is responsible for employing qualified personnel in the preparation of plan designs and engineering and in the construction of the facility to assure that all structural components are adequate, safe, and meet the applicable construction requirements.
(d) The design of the structural system must be done by or under the direction of a professional structural engineer who is currently registered by the Texas State Board of Registration for Professional Engineers in accordance with state law.
(e) The parts of the plans, details, and specifications covering the structural design must bear the legible seal of the engineer on the original drawings from which the prints are made.
(f) If the municipality has a building code, that code must govern the building requirements for the construction involved. The Life Safety Code must be used for fire safety requirements. Should discrepancies between the codes arise, they must be called to the attention of the Texas Department of Human Services for resolution.
(g) In the absence of a local building code, a nationally recognized building code must be used with regard to the construction integrity of the building. The Life Safety Code must be used for fire safety requirements.
(h) Each building must be classified as to building construction type for fire resistance rating purposes in accordance with the National Fire Protection Association (NFPA) 220 and the Life Safety Code.
(i) Enclosures of vertical openings between floors must meet the Life Safety Code.
(j) All interior walls, partitions, and roof structure in buildings of fire resistive and noncombustible construction must be of noncombustible or limited combustible materials.
(k) Building insulation materials, unless sealed on all sides and edges in an approved manner, must have a flame spread rating of 25 or less when tested in accordance with NFPA 255 and NFPA 258.

 

§19.340 Mechanical Requirements

The design of the mechanical systems must be done by or under the direction of a registered professional (mechanical) engineer approved by the Texas State Board of Registration for Professional Engineers to operate in Texas, and the parts of the plans and specifications covering mechanical design must bear the legible seal of the engineer. Building services pertaining to utilities; heating, ventilating, and air-conditioning systems; vertical conveyors; and chutes must be in accordance with the Life Safety Code. Required plumbing fixtures must be in accordance with the Life Safety Code and §19.334 of this title (relating to Architectural Space Planning and Utilization) in specific use areas.

(1) Plumbing.

(A) All plumbing systems must be designed and installed in accordance with the requirements of the plumbing code of the municipality. In the absence of a municipal code, a nationally recognized plumbing code must be used. Any discrepancy between an applicable code and these requirements must be called to the attention of the Texas Department of Human Services (DHS) for resolution.
(B) Supply systems must assure an adequacy of hot and cold water. An average rule-of-thumb design for hot water for resident usage (at 110 degrees Fahrenheit) is to provide 6-1/2 gallons per hour per resident in addition to kitchen and laundry use.
(C) Water supply must be from a system approved by the Water Utility Division, Texas Natural Resources Conservation Commission, or from a system regulated by an entity responsible for water quality in that jurisdiction as approved by the Water Utility Division, Texas Natural Resources Conservation Commission.
(D) The sewage system must connect to a system permitted by the Watershed Management Division, Texas Natural Resources Conservation Commission, or to a system regulated by an entity responsible for water quality in that jurisdiction as approved by the Water Utility Division, Texas Natural Resources Conservation Commission.
(E) The minimum ratio of fixtures to residents shall be as required in §19.334(c) of this title (relating to Architectural Space Planning and Utilization).
(F) For design calculation purposes, resident-use hot water must not exceed 110 degrees Fahrenheit at the fixture. For purposes of conforming to licensure requirements, an operating system providing water from 100 degrees Fahrenheit to 115 degrees Fahrenheit is acceptable. Hot water for laundry and kitchen use must be normally 140 degrees Fahrenheit except that dish sanitizing, if done by hot water, must be 180 degrees Fahrenheit.
(G) Water closets raised to provide a seat height 17 inches to 19 inches from the floor is required for persons with disabilities.
(H) Showers for wheelchair residents must not have curbs. Tub and shower bottoms must have a slip-resistant surface. Shower and tub enclosures, other than curtains, must be of tempered glass, plastic, and other safe materials.
(I) Drinking fountains must not extend into exit corridors.
(J) Fixture controls easily operable by residents must be provided (such as lever type).
(K) Plumbing fixtures for residents must be vitreous china or porcelain finished cast iron or steel unless otherwise approved by DHS. Bathing units constructed of class B fire rated fiberglass are acceptable for use.
(L) Hand-washing sinks for staff use are required in many areas throughout the facility in accordance with §19.334 of this title (relating to Architectural Space Planning and Utilization). Lavatories are required to be provided adjacent to water closets in each area.
(M) The soiled utility room must be provided with a flushing device such as a water closet with bedpan lugs, a spray hose with a siphon breaker or similar device, such as a high neck faucet with lever controls and a deep sink that is large enough to submerse a bedpan. A sterilizer for sanitizing may be used in place of a deep sink.
(N) Siphon breakers or back-flow preventers must be installed with any water supply fixture where the outlet or attachments may be submerged.
(O) Clean-outs for waste piping lines must be provided and located so that there is the least physical and sanitary hazard to residents. Where possible, clean-outs must open to the exterior or areas which would not spread contamination during clean-out procedures.
(P) All boilers not exempted by the Texas Health and Safety Code §755.022 must be inspected and certified for operation by The Texas Department of Licensing and Regulation.

(2) Heating, ventilating, and air-conditioning systems.

(A) Heating, ventilating, and air-conditioning systems must be designed and installed in accordance with the Heating, Ventilating, and Air-Conditioning Guide of the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE), except as may be modified by this section.
(B) Heating, ventilating, and air-conditioning systems must meet the requirements of the Life Safety Code and the National Fire Protection Association (NFPA) 90A. The plans must have a statement verifying that the systems are designed to conform to NFPA 90A. Requirements for conditions related to smoke compartmentation must be in accordance with §19.336 of this title (relating to Smoke Compartmentation (Subdivision of Building Spaces)).
(C) Systems using liquefied petroleum gas fuel must meet the requirements of the Railroad Commission of Texas and NFPA 58 Liquefied Petroleum Gases.
(D) The heating system must be designed, installed, and functioning to be able to maintain a temperature of at least 75 degrees Fahrenheit for all areas occupied by residents. For all other occupied areas, the indoor design temperature must be at least 72 degrees Fahrenheit. The cooling system must be designed, installed, and functioning to be able to maintain a temperature of not more than 78 degrees Fahrenheit. A facility constructed or licensed after January 1, 2004, must have a central air conditioning system, or a substantially similar air conditioning system, that is capable of maintaining a temperature suitable for resident comfort within areas used by residents. Occupied areas generating high heat, such as kitchens, must be provided with a sufficient cool air supply to maintain a temperature not exceeding 85 degrees Fahrenheit at the five-foot level. Supply air volume must be approximately equal to the air volume exhausted to the exterior for these areas.
(E) Air systems must provide for mixing at least 10% outside air for the supply distribution. Blowers for central heating and cooling systems must be designed so that they may run continuously.
(F) Floor furnaces, unvented space heaters, and portable heating units must not be used. Heating devices or appliances must not be a burn hazard (to touch) to residents.
(G) A combustion fresh air inlet must be provided to all gas or fossil fuel operated equipment in steel ducts or passages from outside the building in accordance with NFPA 54. Rooms must also be vented to the exterior to exhaust heated ambient air in the room. Combustion air will require one vent within 12 inches of the floor and one vent within 12 inches of the ceiling.
(H) The location and design of air diffusers, registers, and return air grilles, must ensure that residents are not in harmful or excessive drafts in their normal usage of the room.
(I) In areas requiring control of sanitation, the air flow must be from the clean area to the dirty area. Air supply to food preparation areas must not be from air which has circulated places such as resident bedrooms and baths.
(J) Air from unsanitary areas such as janitors' closets, soiled linen areas, utility areas, and soiled area of laundry rooms, must not be returned and recirculated to other areas.
(K) Intakes for fresh outside air must be located sufficiently distant from exhaust outlets or other areas or conditions which may contaminate or otherwise pollute the incoming fresh air. Fresh air inlets must be appropriately screened to prevent entry of debris, rodents, and animals. Provision must be made for access to such screens for periodic inspection and cleaning to eliminate clogging or air stoppage (see paragraph (3)(C)(i) of this subsection).
(L) Systems must be designed as much as possible to avoid having ducts passing through fire walls or smoke barrier walls. All openings or duct penetrations in these walls must be provided with approved automatic dampers. Smoke dampers at smoke partitions must close automatically upon activation of the fire alarm system to prevent the flow of air or smoke in either direction.
(M) Ducts with smoke dampers must have maintenance panels for inspections. The maintenance panels must be removable without tools. Means of access must also be provided in the ceiling or side wall to facilitate smoke damper inspection readily and without obstruction. Location of dampers must be identified on the wall or ceiling of the occupied area below.
(N) Fusible links are not approved for smoke dampers.
(O) Central air supply systems and/or systems serving means of egress must automatically and immediately shut down upon activation of the fire alarm system. (An exception must be approved, engineered smoke-removal systems.)
(P) Ducts must be of metal or other approved noncombustible material. Cooling ducts must be insulated against condensation drip.

(3) Ventilating and exhaust.

(A) General ventilating systems must be in accordance with paragraph (2) of this subsection.
(B) Provisions for natural ventilation using windows or louvers must be incorporated into the building design where possible and practical. These windows or louvers must have insect screens.
(C) All air-supply and air-exhaust systems must be mechanically-operated. The ventilation rates shown in the table in clause (xi) of this subparagraph must be considered as minimum acceptable rates and must not be construed as precluding the use of higher ventilation rates.

(i) Outdoor air intakes must be located as far as practical (but normally not less than 10 feet) from exhaust outlets or ventilating systems, combustion equipment stacks, medical vacuum systems, plumbing vent stacks, or from areas which may collect vehicular exhaust and other noxious fumes.
(ii) The ventilation systems must be designed and balanced to provide the pressure relationship as shown in the table in clause (xi) of this subparagraph. A final engineered system air balance report will be required for the completed system to be furnished and certified by the installer.
(iii) The bottoms of ventilation openings must be not less than three inches above the floor of any room.
(iv) Doors protecting corridors or ways of egress must not have air transfer grilles or louvers. Corridors must not be used to supply air to or exhaust air from any room except that air from corridors may be used as make-up air to ventilate small toilet rooms, janitor's closets, and small electrical or telephone closets opening directly on corridors, provided that the ventilation can be accomplished by door undercuts not exceeding 3/4 inches.
(v) All exhausts must be continuously ducted to the exterior. Exhausting air into attics or other spaces is not permitted. Duct material must be metal.
(vi) All central ventilation or air-conditioning systems must be equipped with filters of sufficient efficiency to minimize dust and lint accumulations throughout the system and building including supply and return plenums and ductwork. Filters with efficiency rating of 80% or greater (based on ASHRAE) are recommended. Filters for individual room units must be as recommended by the equipment manufacturer. Filters must be easily accessible for routine changing or cleaning.
(vii) Static pressures of systems must be within limits recommended by ASHRAE and the equipment manufacturer (upstream and downstream).
(viii) In geographic locations or interior room areas where extreme humidity levels are likely to occur for extended periods of time, apparatus for controlling humidity levels (preferably between 40-60%) are recommended to be installed as a part of central systems and with automatic humidistat controls.
(ix) Exhaust hoods, ducts, and automatic extinguishers for kitchen cooking equipment must be in accordance with NFPA 96.
(x) Forced air exhaust must be provided in laundries, kitchens, and dishwashing areas to remove excess heat and moisture and to maintain air flow in the direction of clean to soiled areas.
(xi) Ventilation requirements for nursing areas must be according to the following table:

Attached Graphic:

Figure: 40 TAC §19.340(3)(C)(ix)
Area Designation Air Movement In Relation To Adjacent Area Minimum Total Air Changes Per Hour All Air Exhausted To Outside Design Temperature
Resident Room -- 2 -- 75/78
Examination and Treatment room -- 4 No 75/78
Physical Therapy In 4 No 75/78
Occupational Therapy -- 4 No 75/78
Soiled Work or Holding Room In 6 Yes --
Clean Work or Holding Room Out 4 No --
Toilet Rooms In 10 Yes --
Bath and Shower Rooms -- 10 No 75/78
Janitors' Closets In 10 Yes --

 

(xii) With relationship to adjacent areas, a positive air pressure must be provided for clean utility rooms, clean linen rooms, and medication rooms. Conditioned supply air must be introduced into these rooms.

(4) Sprinkler systems. The following requirements are applicable to sprinkler systems:

(A) Sprinkler systems must be in accordance with NFPA 13 and this subchapter.
(B) The design and installation of sprinkler systems must meet any applicable state laws pertaining to these systems and one of the following criteria:

(i) The sprinkler system must be designed by a qualified registered professional engineer approved by the Texas State Board of Registration for Professional Engineers to operate in Texas. The engineer must supervise the installation and provide written approval of the completed installation.
(ii) The sprinkler system must be planned and installed in accordance with NFPA 13 by firms with certificates of registration issued by the office of the state fire marshal that have at least one full-time licensed responsible managing employee (RME). The RME's license number and signature must be included on the prepared sprinkler drawings.

(C) The approved sprinkler plans must be submitted to DHS, Architectural Section, Austin, Texas.
(D) Particular attention should be paid to adequate, safe, and reasonable freeze protection for all piping. The design of freeze protection should minimize the need for dependence on staff action or intervention to provide protection.

 

§19.341 Electrical Requirements

(a) The design of the electrical systems must be done by or under the direction of a licensed professional electrical engineer approved by the Texas State Board of Professional Engineers to operate in Texas, and the parts of the plans and specifications covering electrical design must bear the legible seal of the engineer. Utilities; heating, ventilating, and air-conditioning systems; vertical conveyors, and chutes must meet the requirements of NFPA 101, Chapter 9, Building Service and Fire Protection Equipment.
(b) Fire protection systems must meet the requirements of §19.337 of this division (relating to Fire Protection Systems).
(c) Electrical systems must meet the requirements of NFPA 70.
(d) Specific requirements for lighting and outlets at resident bedrooms must meet the requirements of §19.334 of this division (relating to Architectural Space Planning and Utilization).

(1) Emergency electrical service.

(A) To provide electricity during an interruption of the normal electric supply, an emergency source of electricity must be provided and connected to certain circuits for lighting and power. Facilities that were constructed or received design approval or building permits before July 5, 2016, may comply with the emergency electrical system requirements for existing health care facilities in NFPA 99. All other facilities covered by this section must comply with the emergency electrical system requirements for new health care facilities in NFPA 99.
(B) Emergency electrical connection service must be provided to the distribution systems as required by NFPA 101 and NFPA 99. Rehabilitation or modernization of an existing emergency power system must be based on the assessed risk category and according to the requirements of NFPA 99 for new health care facilities.

(i) The following systems must be arranged for automatic connection to the alternate power source, without delay:
(I) illumination for means of egress, nurses’ stations, medication rooms, dining and living rooms, group bathing rooms not directly connected to resident bedrooms, and areas immediately outside of exit doors;
(II) exit signs and exit directional signs as required by NFPA 101;
(III) alarm systems including fire alarms activated by manual stations, water flow alarm devices of sprinkler systems, fire and smoke detecting systems, and alarms required for nonflammable medical gas systems if installed;
(IV) task illumination and selected receptacles at the generator set location;
(V) selected duplex receptacles including such areas as resident corridors, each bed location where patient care-related electrical appliances are utilized, nurse stations, and medication rooms including biologicals refrigerator;
(VI) nurse call systems;
(VII) resident room night lights;
(VIII) a light and receptacle in an electrical room or a boiler room;
(IX) elevator cab lighting, control, and communication systems;
(X) all facility telephone equipment; and
(XI) paging or speaker systems if intended for communication during emergency. Radio transceivers where installed for emergency use must be capable of operating for at least one hour upon total failure of both normal and emergency power.

(ii) The following systems must be arranged for delayed automatic or manual connections to the alternate power source:
(I) Heating equipment must provide heating for general resident rooms. This will not be required if:

(-a-) the outside design temperature is higher than 20 degrees Fahrenheit (-6 degrees Celsius);
(-b-) the outside design temperature is lower than 20 degrees Fahrenheit (-6 degrees Celsius) and where selected rooms are provided for the needs of all confined residents, then only those rooms need to be heated; or
(-c-) the facility is served by a dual source of normal power.

(II) In instances when interruptions of power would result in elevators stopping between floors, throw-over facilities must be provided to allow the temporary operation of any elevator for the release of passengers.

(C) The emergency lighting must be automatically in operation within ten seconds after the interruption of normal electric power supply. Emergency egress lighting must not be switched.
(D) Emergency service to receptacles and equipment may be delayed automatic or manually connected. Receptacles connected to emergency power must have red face plates.
(E) The design and installation of emergency motor generators must be in accordance with NFPA 37, NFPA 99, and NFPA 110.

(i) Generators must be located a minimum of three feet from a combustible exterior building finish and a minimum of five feet from a building opening, if located on the exterior of the building.
(ii) Generators located on the exterior of the building must be provided with a noncombustible protective cover or be protected as per manufacturer's recommendations.
(iii) Motor generators fueled by public utility natural gas must have the capability to be switched to an alternate fuel source in accordance with NFPA 70.
(iv) Stored fuel capacity must be sufficient for not less than four hours of required generator operation.

(F) The normal wiring circuits for the emergency system must be kept entirely independent of all other wiring and must not enter the same race-ways, boxes, or cabinets in accordance with NFPA 70.

(2) General Lighting Requirements. General lighting requirements are as follows:

(A) All spaces occupied by people, machinery, equipment, approaches to buildings, and parking lots must have lighting.
(B) All quality, intensity, and type of lighting must be adequate and appropriate to the space and all functions within the space.
(C) Minimum lighting levels can be found in the Illuminating Engineering Society (IES) Lighting Handbook, latest edition. Minimum illumination must be 20-foot candles in resident rooms, corridors, nurses' stations, dining rooms, lobbies, toilets, bathing facilities, laundries, stairways, and elevators. 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 over-bed reading lamps, medication-preparation or storage area, kitchens, and nurse's station desks must be 50 foot candles. Illumination requirements for these areas apply to the task performed and are measured on the task.
(D) Nursing unit corridors must have general illumination with provisions for reduction of light levels at night.
(E) Exposed incandescent light bulbs or other high heat generating lamps in closets or other similar spaces must be provided with basket wire guards or other suitable shield to prevent contact of combustible materials with the hot bulb and to help prevent breakage.
(F) Exposed incandescent or fluorescent bulbs will not be permitted in food service or other areas where glass fragments from breakage may get into food, medications, linens, or utensils. All fluorescent bulbs will be protected with a shield or catcher to prevent bulb drop-out.

(3) Receptacles or convenience outlets.

(A) Receptacles at bedrooms must be in accordance with §19.334(a)(7) of this division (relating to Architectural Space Planning and Utilization).
(B) Duplex receptacles for general use must be installed in corridors spaced not more than 50 feet apart and within 25 feet of ends of corridors. At least one duplex receptacle in each resident corridor must be provided with emergency electrical service.
(C) Receptacles must be provided for essential needs such as medication refrigerators and systems or equipment whose failure is likely to cause major injury or death to a resident. All receptacles on emergency circuits must be clearly, distinctly, and permanently identified, such as using a red faceplate or a small label that says "Emergency."
(D) Receptacles in the remainder of the building must be sufficient to serve the present and future needs of the residents and equipment.
(E) Location of receptacles, horizontally and vertically, should be carefully planned and coordinated with the expected designed use of furnishings and equipment to maximize their accessibility and to minimize conditions such as beds or chests being jammed against plugs used in the outlets.
(F) Exterior receptacles must be approved waterproof type.
(G) Ground fault interruption protection must be provided at appropriate locations such as at whirlpools and other wet areas according to the NFPA 70.

(4) Nurse call systems.

(A) A nurse call system consists of power units, annunciator control units, corridor dome stations, emergency call stations, bedside call stations, and activating devices. The units must be compatible and listed by a nationally recognized laboratory for the system and use intended.
(B) Each resident bedroom must be served by at least one call station and each bed must be provided with a call switch. Two call switches serving adjacent beds may be served by one calling station. Each call entered into the system must activate a corridor dome light above the bedroom, bathroom, or toilet corridor door, a visual signal at the nurses’ station which indicates the room from which the call was placed, and a continuous or intermittent continuous audible signal of sufficient amplitude to be clearly heard by nursing staff. The amplitude or pitch of the audible signal must not be such that it is irritating to residents or visitors. The system must be designed so that calls entered into the system may be canceled only at the calling station. Intercom-type systems which meet this requirement are acceptable.
(C) A nurse call system that provides two-way voice communication must be equipped with an indicating light at each call station which lights and remains lighted as long as the voice circuit is operating.
(D) A nurse call emergency switch must be provided for resident use at each resident's toilet, bath, and shower. These switches must be usable by residents using the fixtures and by a collapsed resident lying on the floor.

 

§19.342 Miscellaneous Details

(a) Safety related details. A high degree of safety for the occupants is needed to minimize accidents more apt to occur with the elderly and/or infirm residents in a nursing facility. Consideration must be given to the fact that many have impaired vision, hearing, spatial perception, and ambulation.

(1) Hazards such as sharp corners and edges and unexpected steps must be avoided.
(2) Items such as drinking fountains, telephone booths, vending machines, and portable equipment must be located so as not to restrict corridor traffic or reduce corridor width.
(3) Windows must be designed to prevent residents from accidentally falling through the windows.
(4) Doors that normally stay open or are frequently used must not swing out into the corridor unless otherwise needed or required. Alcoves may be provided for doors that must swing outward toward a corridor or way of egress.
(5) The proper use of safety glass must be adhered to in applicable locations and conditions.
(6) Thresholds and expansion joint covers must be made essentially flush with the floor surface to facilitate use of wheelchairs and carts. See §19.340(a)(8) of this title (relating to Mechanical Requirements) for requirements for such items as shower curbs, surfaces, and doors.
(7) Grab bars must be provided at all residents' toilets, showers, tubs, and sitz baths. The bars must be 1-1/4 to 1-1/2 inches in diameter and must have 1-1/2 inch clearance to walls. Bars must have sufficient strength and anchorage to sustain a concentrated load of 250 pounds. Grab bar standards must comply with standards adopted under the Americans with Disabilities Act of 1990.
(8) Handrails must be provided on both sides of corridors used by residents. A clear distance of 1-1/2 inches must be provided between the handrail and the wall. Handrails must be securely mounted to withstand downward forces of 250 pounds. Handrails may be omitted on wall segments less than 18 inches. Handrails must be mounted 33 inches to 36 inches above the floor, and must comply with standards adopted under the Americans with Disabilities Act and the Texas Accessibility Standards.
(9) Ends of handrails and grab bars must be constructed to prevent snagging the clothes of residents (that is, return ends to wall).
(10) Ceiling fan blades must be at least seven feet above the floor and be located so as not to interfere with the operation of any ceiling-mounted smoke detectors.

(b) General details.

(1) Concrete floors, whether finished by sealant, or similar product, must not be used as the finished floor unless specifically approved in writing by the Texas Department of Human Services. An exception is mechanical equipment rooms and maintenance or similar areas.
(2) Sound separation must be provided in corridor walls and resident room party walls; Minimum Sound Transmission Coefficient 30 per American Society for Testing Material E-90.
(3) Illumination and a safe platform in the attic must be provided at all attic access panels.
(4) Attic access must be provided for building maintenance. Access panels must be prime coated steel flush panels where required to maintain fire rating of ceiling-roof/ceiling-floor assemblies.

 

§19.343 Elevators

All buildings having residents' facilities (such as bedrooms, dining rooms, or recreation areas) or resident services (such as diagnostic or therapy) located on other than the main entrance floor must have at least one electric or electrohydraulic elevator and must comply with standards adopted under the American National Standards Institute (ANSI) Code, §A17.1.

(1) Number of elevators.

(A) At least one hospital-type elevator must be installed where one to 60 resident beds are located on any floor other than the main entrance floor.
(B) At least two (one of which must be hospital-type) elevators must be installed where 61 to 200 resident beds are located on floors other than the main entrance floor, or where the major inpatient services are located on a floor other than those containing resident beds. Elevator service may be reduced for those floors which provide only partial inpatient services.
(C) At least three (one of which must be hospital-type) elevators must be installed where 201 to 350 resident beds are located on floors other than the main entrance floor or where the major inpatient services are located on a floor other than those containing resident beds. Elevator service may be reduced for those floors which provide only partial inpatient services.
(D) For facilities with more than 350 resident beds, the number of elevators must be determined from a study of the facility plan and the estimated vertical transportation requirements.

(2) Cars and platforms. Cars of hospital-type elevators must have inside dimensions that will accommodate a resident bed and attendants and must be at least five feet wide by seven feet six inches deep. The car door must have a clear opening of not less than three feet eight inches.
(3) Leveling. Elevators must be equipped with an automatic leveling device of the two-way automatic maintaining type with an accuracy of 1/2 inch.
(4) Operation. Elevators, except freight elevators, must be equipped with a two-way special service switch to permit cars to bypass all landing button calls and be dispatched directly to any floor.
(5) Accessibility provisions. Elevator controls, alarm buttons, and telephones, must be accessible to and usable by individuals with disabilities as required under the Americans with Disabilities Act of 1990.
(6) Protection from fire. Elevator call buttons, controls, and door safety stops must be of a type that will not be activated by heat or smoke. Door openings must meet the requirements of the Life Safety Code for protection of vertical openings.
(7) Field inspection and tests. Inspections and tests must be made and the owner must be furnished written certification that the installation meets the requirements set forth in this section and all applicable safety regulations and codes.

 

Division 6 Plan Review

 

§19.344 Plans Review

At the option of the applicant, HHSC will review plans for a new building, an addition to a building, a conversion of a building not licensed by HHSC, or rehabilitation of an existing licensed facility. HHSC will, within 30 days, inform the applicant in writing of the results of the review. If the plans comply with HHSC’s architectural requirements, HHSC 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. HHSC 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 contract documents described in paragraph (2) of this subsection before construction begins. Documents must be in sufficient detail to demonstrate compliance with this subchapter and ensure 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 include 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 licensed professional engineer approved by the Texas Board of Professional Engineers to operate in Texas. Contract documents for additions, rehabilitation of, or construction of an entirely new facility must be prepared by an architect licensed by the Texas Board of Architectural Examiners. Drawings must bear the seal of the architect.
(C) A final plan for a major addition to a facility must include a basic layout to scale of the entire building onto which the addition will connect. North direction must be shown. The entire basic layout may 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 the conversion of a building not licensed by HHSC or rehabilitation of an existing building must be complete for all parts and features involved.
(E) The facility is responsible for employing qualified personnel to prepare the contract documents for construction. If the contract documents contain errors or omissions to the extent that conformance with standards cannot be reasonably ensured or determined, HHSC may request a revised set of documents for review.
(F) The review of plans and specifications by HHSC is based on general utility, the minimum licensing standards, and conformance with NFPA 101. This review must not be construed as all-inclusive approval of the structural, electrical, or mechanical components, nor does it constitute the review of required building plans for compliance with the TAS as administered and enforced by the Texas Department of Licensing and Regulation.
(G) Fees for plan review will be required in accordance with §19.219 of this chapter (relating to Plan Review Fees).

(2) Contract documents.

(A) Code compliance documents must include:

(i) A life safety floor plan that includes the following information:

(I) a building layout, depicted at an identified drawing scale;
(II) the location of any changes in construction type;
(III) occupant loads, according to NFPA 101;
(IV) egress capacity, according to NFPA 101;
(V) egress routes from spaces in the building to the public way, including travel distances;
(VI) areas in buildings which use provisions for suites, per NFPA 101;
(VII) provisions for the protection of vertical openings;
(VIII) the locations of doors that use special locking arrangements;
(IX) the relationship of the subject building to any adjacent buildings on the same property, including dimensions between buildings;
(X) the size and location of smoke compartments, and the tested fire resistance-rated assemblies proposed for the construction of smoke barriers defining the compartments;
(XI) the location of any fire barriers or fire walls, and the tested fire resistance-rated assemblies proposed for the construction of those barriers or walls; and
(XII) the location of egress signage.

(ii) documentation, published by a nationally recognized testing laboratory, describing any proposed fire resistance-rated assemblies, including the following:

(I) fire resistance-rated wall assemblies;
(II) fire resistance-rated floor-ceiling assemblies;
(III) fire resistance-rated roof-ceiling assemblies;
(IV) fire resistance-rated joint systems;
(V) fire resistance-rated systems for protection of penetrations into or through other fire resistance-rated construction and assemblies; and
(VI) fire resistance-rated assemblies for protection of structural columns and beams.

(iii) for projects involving building rehabilitation, provide a diagram outlining each area undergoing rehabilitation identifying the classification of the rehabilitation work according to §19.350 of this subchapter (relating to Building Rehabilitation), and identifying the total floor area of each rehabilitation work area by rehabilitation classification.

(B) Site plan documents must include:

(i) grade contours;
(ii) streets (with names);
(iii) a north arrow;
(iv) fire hydrant locations;
(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.

(C) Foundation plan documents must include the general foundation design and details.
(D) Floor plan documents must include:

(i) room names, numbers, and usages;
(ii) numbered doors, 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 and fire walls, outside wall to outside wall.

(E) For new construction, additions to or rehabilitation of an existing building, an overall plan of the entire building must be drawn or reduced to fit on an 8 1/2-inch by 11-inch sheet.
(F) Schedules must include:

(i) door materials, sizes, and types;
(ii) window materials, sizes, and types;
(iii) room finishes; and
(iv) special hardware.

(G) Elevations must include:

(i) exterior elevations with material note; and
(ii) interior elevations, where needed for special conditions.

(H) Roof plans must include:

(i) any roof top equipment;
(ii) roof slopes;
(iii) drain locations; and
(iv) gas pipes.

(I) Details must include:

(i) wall sections as needed, especially for special conditions;
(ii) cabinets and built-in work, basic design only;
(iii) cross sections through buildings as needed; and
(iv) miscellaneous details and enlargements as needed.

(J) Building structure documents must include:

(i) structural framing layouts and details;
(ii) roof framing layout, when this cannot be adequately shown on cross section;
(iii) cross sections in quantity and detail to show adequate structural design; and
(iv) structural details as necessary to assure adequate structural design.

(K) 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 signs and emergency egress lighting;
(iv) emergency electrical provisions, such as generators and panelboards;
(v) staff communication systems, including a nurse call system;
(vi) fire alarm and similar systems, such as control panels, devices, and alarms; and
(vii) sizes and details sufficient to ensure safe and properly operating systems.

(L) Plumbing documents must include:

(i) plumbing layout with pipe sizes and details sufficient to ensure 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.

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

(i) sufficient details of HVAC systems and components to ensure a safe and properly operating installation, including heating, ventilating, and air-conditioning layout; ducts; protection of duct inlets and outlets; combustion air; piping; exhausts; duct smoke detectors; and fire dampers; and
(ii) equipment types, sizes, and locations.

(N) Sprinkler system documents must include:

(i) plans and details of systems designed according to NFPA 13; and
(ii) electrical devices interconnected to the alarm system.

(O) Specifications must include:

(i) installation techniques;
(ii) quality standards;
(iii) manufacturers;
(iv) references to specific codes and standards;
(v) design criteria;
(vi) special equipment;
(vii) hardware;
(viii) finishes; and
(ix) any other information as needed to amplify drawings and notes.

(P) Other layouts, plans, or details that are necessary to convey a clear understanding of the design and scope of the project, including plans covering private water or sewer systems, which must be reviewed by the local health or wastewater authority having jurisdiction.

 

Division 7 Small House and Household Facilities

 

§19.345 Small House and Household Facilities

(a) This section applies to a small house or household facility that is designed to provide a non-institutional environment to promote resident-centered care. New construction of a small house or household facility, including a conversion to an existing facility, an addition to an existing facility, or rehabilitation of an existing facility, must meet the requirements of this section.
(b) A small house or household facility must comply with this chapter, except it is not required to comply with a requirement in division 9 of this subchapter (relating to Facilities Licensed on or After April 2, 2018) if HHSC waives the requirement in accordance with subsection (c) of this section or if the requirement is modified by subsection (g) of this section.
(c) HHSC may waive a requirement in division 9 of this subchapter if HHSC determines a waiver of the requirement would facilitate the implementation of resident-centered care. To request a waiver of a requirement, a facility must submit plans to HHSC according to §19.344 of this subchapter (relating to Plan Review). The plans must include a statement from an architect identifying which requirements the facility is requesting to be waived and explaining how the waiver would contribute to the goals of resident-centered care.
(d) A small house or household facility must be designed and equipped to provide a homelike environment that promotes resident-centered care.
(e) A small house or a household within a facility must:

(1) have no more than 16 bedrooms as described in subsection (g)(3) of this section;
(2) have living, dining, social, and staffing areas exclusively within and for the house or household; and
(3) have a kitchen that meets the requirements in §19.354(g)(1) of this subchapter (relating to Architectural Space Planning and Utilization for New Facilities) or a food service area that meets the requirements of an auxiliary serving kitchen in §19.354(g)(3) of this subchapter, exclusively within and for the house or household.

(f) A small house or household facility must be:

(1) a single small house model, which is a single licensed building having no more than 16 residents that meets the licensing requirements for architectural spaces provided within the same licensed building;
(2) a multiple small house model, which is a single licensed group of two or more small houses located in close proximity to each other on a single contiguous property that meets the licensing requirements for architectural spaces in each house and that may include a stand-alone central building that provides social-diversional space, a treatment area, or an administrative area; or
(3) a household model, which is a single licensed building that contains one or more households having no more than 16 residents each; that may include a central area that provides social-diversional space, a treatment area, or an administrative area; and that must be arranged to avoid travel through the household by persons who are not residing in, visiting, or providing services for the household.

(g) A small house or household facility must comply with the requirements in this section and is not required to request a waiver for an exception described in this subsection.

(1) The outdoor activity, recreational, and sitting spaces required in §19.532(f) of this subchapter (relating to Location and Site for New Facilities) must include a porch area under a roof with suitable furniture for sitting and space for wheelchairs.
(2) The resident bedroom requirements in §19.354(a) of this subchapter must be met, except:

(A) a bedroom must be occupied:

(i) by only one resident; or
(ii) by two residents, if they are members of the same family and the bedroom size, furniture, and headboard wall requirements for double occupancy are met;

(B) the toilet requirements in §19.354(a)(7) of this subchapter must be met, except a bathroom must serve no more than one resident room and must include a lavatory, toilet, and a shower or bathing unit;
(C) the night lighting requirement in §19.354(a)(5) of this subchapter must be met, except it must be a recessed wall mounted fixture just inside the entry door to the room and must not be obstructed by the door or furniture; and
(D) the electrical receptacle requirements in §19.354(a)(6) of this subchapter must be met and additional receptacles must be provided to meet the requirements for Dwelling Unit Receptacle Outlets in NFPA 70.

(3) The nursing service area requirements in §19.354(b) of this subchapter must be met, except:

(A) a nursing staff lounge is not required in a small house facility;
(B) the nursing staff toilet room may also be a toilet room for:

(i) kitchen staff;
(ii) the public; or
(iii) a general bathing room, if the toilet room opens into the general bathing room and common areas; and

(C) the nourishment station may be part of the residential kitchen area.

(4) Resident bathing and toilet facility requirements in §19.354(c) of this subchapter must be met, except the door between a bathroom and a resident bedroom:

(A) is not required to be a side-hinged swinging door;
(B) may be an externally mounted by-pass door;
(C) must have substantial hardware;
(D) must not be equipped with a bottom door track that is a tripping hazard; and
(E) if it swings open into the bedroom, must not interfere with the swing of any other door that opens into the bedroom.

(5) The living area requirements in §19.354(e) of this subchapter and dining room requirements in §19.354(f) of this subchapter must be met, except the distance between the floor and the window sill of a window in the living or dining room must not exceed 36 inches, to allow a view to the outside from a seated position.
(6) The dietary facility requirements in §19.354(g) of this subchapter must be met, except a kitchen serving 16 or fewer non-employees per meal:

(A) may be open to the facility in compliance with NFPA 101;
(B) must meet the general food service needs of the residents;
(C) must provide for the storage, refrigeration, preparation, and serving of food; for dish and utensil cleaning; and for refuse storage and removal;
(D) must contain a multi-compartment sink, vegetable sink, and hand washing sink;
(E) must provide a supply of hot water that, if used for sanitizing purposes is 180 degrees Fahrenheit or at the manufacturer's suggested temperature for chemical sanitizers;
(F) must provide a supply of cold water;
(G) must have janitorial facilities exclusively for the kitchen and located in close proximity to the kitchen;
(H) must have kitchen floors, walls, and ceilings with nonabsorbent smooth finishes or surfaces that are capable of being routinely cleaned and sanitized to maintain a healthful environment;
(I) must have counter and cabinet surfaces, inside and outside, with smooth, cleanable, relatively nonporous finishes; and
(J) must have a toilet for the kitchen staff that is in close proximity to the kitchen and that may also be a toilet room for the public or the general bathing room.

(7) The exit requirements in §19.355(3) of this subchapter must be met except for fixed furniture and wheeled equipment as permitted by NFPA 101.

 

Division 8 Building Rehabilitation
 

§19.350 Building Rehabilitation

(a) This section applies to facilities undergoing rehabilitation.
(b) Rehabilitation work is classified as follows:

(1) The patching, restoration, or painting of materials, elements, equipment, or fixtures for the purpose of maintaining such materials, elements, equipment, or fixtures in good or sound condition must be classified as repair and must meet the following requirements:

(A) A repair must meet the applicable requirements of §19.300(d) of this subchapter (relating to General Requirements);
(B) A repair must be done using like materials, unless such materials are prohibited by NFPA 101; and
(C) A repair must not make a building less conforming with NFPA 101 or the applicable sections of this subchapter, or with any alternative arrangements previously approved by HHSC, than it was before the repair was undertaken, unless approved by HHSC.

(2) The replacement in kind, strengthening, or upgrading of building elements, materials, equipment, or fixtures, that does not result in a reconfiguration of the building spaces within, must be classified as renovation and must meet the following requirements:

(A) Any new work that is part of a renovation must comply with the applicable requirements of §19.300(d) of this subchapter;
(B) Any new interior or exterior finishes must meet the requirements of division 9 of this subchapter (relating to Facilities Licensed On or After April 2, 2018);
(C) A renovation must not make a building less conforming with NFPA 101 or the applicable sections of this subchapter, or with any alternative arrangements previously approved by HHSC, than it was before the renovation was undertaken, unless approved by HHSC; and
(D) The reconfiguration or extension of any system, or the installation of any additional equipment, must be classified as modification according to paragraph (3) of this subsection.

(3) The reconfiguration of any space; the addition, relocation, or elimination of any door or window; the addition or elimination of load-bearing elements; the reconfiguration or extension of any system; or the installation of any additional equipment, must be classified as modification and must meet the following requirements:

(A) A newly constructed element, component, or system must comply with division 9 of this subchapter;
(B) All other work in a modification must meet, at a minimum, the requirements for a renovation according to paragraph (2) of this subsection; and
(C) If the total rehabilitation work area classified as modification exceeds 50 percent of the total building area, the work must be classified as reconstruction according to paragraph (4) of this subsection.

(4) The reconfiguration of a space that affects an exit or a corridor shared by more than one occupant space; or the reconfiguration of a space such that the rehabilitation work area is not permitted to be occupied because existing means of egress and fire protection systems, or their equivalent, are not in place or continuously maintained, must be classified as reconstruction and must meet the following requirements:

(A) Any reconstruction of components of the means of egress must comply with the applicable requirements of §19.300(d) of this subchapter, except for the following components, which must comply with division 9 of this subchapter.

(i) illumination of means of egress;
(ii) emergency lighting of means of egress; or
(iii) marking of means of egress, including exit signs.

(B) If the total rehabilitation work area classified as reconstruction on any one floor exceeds 50 percent of the total area of the floor, all means of egress components on that floor identified in paragraph (4)(A)(i)-(iii) of this subsection must comply with division 9 of this subchapter.
(C) If the total rehabilitation work area classified as reconstruction exceeds 50 percent of the total building area, all means of egress components in the building identified in paragraph (4)(A)(i)-(iii) of this subsection must comply with division 9 of this subchapter.
(D) All other work classified as reconstruction must meet, at a minimum, the requirements for modification according to paragraph (3) of this subsection and renovation according to paragraph (2) of this subsection.

(5) A change in the purpose or level of activity within a facility that involves a change in application of the requirements of this subchapter must be classified as a change of use and must comply with division 9 of this subchapter.
(6) A change in the use of a structure or portion of a structure must comply with division 9 of this subchapter.
(7) An increase in the building area, aggregate floor area, building height, or number of stories of a structure must be classified as an addition and must comply with division 9 of this subchapter.

(c) If an existing licensed facility plans a building rehabilitation that includes a change in the facility capacity, HHSC must reevaluate the ratio of bathing units to meet minimum standards and the square footage of dining and living areas to meet a minimum of 19 square feet per bed. Conversion of existing living, dining, or activity areas to resident bedrooms must not reduce these functions to a total area of less than 19 square feet per bed. The facility's registered or licensed dietitian or architect having knowledge in the design of food service operations must reevaluate the dietary department. This reevaluation must be provided to HHSC.
(d) A rehabilitation to an occupied building that involves exit-ways or exit doors must be accomplished without compromising the exits or creating a dead end situation at any time. HHSC may approve temporary exits, or the facility must relocate residents until construction blocking the exit is completed. The facility must maintain other basic safety features such as fire alarms, sprinkler systems, and emergency power.

 

Division 9 Facilities Licensed on or After April 2, 2018
 

§19.351 Construction Standards for New Nursing Facilities

(a) This section applies to a facility licensed on or after April 2, 2018. The requirements of NFPA 101 and other applicable NFPA codes and standards referenced in NFPA 101 will apply unless otherwise noted or modified in this section:

(1) Buildings covered by this section must comply with the New Health Care Occupancies chapter of NFPA 101.
(2) In addition to NFPA 101 and the standards referenced therein, a facility covered by this division is subject to the codes, standards, and requirements established by the following: UL; ASHRAE; and ASTM.

(b) All applicable local, state, or national codes and ordinances must be met as determined by the authority having jurisdiction for those codes and ordinances and by HHSC. Any conflicts must be made known to HHSC for appropriate resolution.
(c) The design of structural systems must be done by or under the direction of a professional engineer who is currently licensed by the Texas Board of Professional Engineers.
(d) Nothing in this division may be construed as prohibiting a better type of building or construction, more space, services, features, or greater degree of safety than the minimum requirements.
 

§19.352 Location and Site for New Facilities


(a) Any conditions considered to be a fire, safety, or health hazard will be grounds for disapproval of a site by HHSC. A new facility may not be built in an area designated as a floodplain of 100 years or less.
(b) Site grades must provide for positive surface water drainage so that there will be no ponding or standing water on the designated site. This does not apply to local government requirements for engineered controlled run-off holding ponds.
(c) A new building or addition must be set back at least 10 feet from the property lines except as otherwise approved by HHSC.
(d) Exit doors from the building must not open directly onto a drive for vehicular traffic, but must be set back at least six feet from the edge of the drive, measured from the end of the building wall in the case of a recessed door, to prevent accidents due to lack of visual warning.
(e) Walks must be provided as required from all exits and must be of non-slip surfaces free of hazards. Walks must be at least 48 inches wide except as otherwise approved. Ramps must be used in lieu of steps where possible for the individuals with a disability and to facilitate bed or wheelchair removal in an emergency.
(f) Outdoor activity, recreational, and sitting spaces must be provided and appropriately designed, landscaped, and equipped. Some shaded or covered outside areas are needed. These areas must be designed to accommodate residents in wheelchairs.
(g) Each facility must have parking space to satisfy the needs of residents, employees, staff, and visitors. In the absence of a formal parking study, each facility must provide for a ratio of at least one parking space for every four beds in the facility. This ratio may be reduced slightly in areas convenient to public parking facilities. Space must be provided for emergency and delivery vehicles. A parking space must not block or inhibit egress from the outside exit doors. Parking spaces and drives must be at least ten feet away from windows in bedrooms, dining areas, and living areas.
(h) Barriers must be provided for resident safety from traffic or other site hazards by the use of appropriate methods such as fences, hedges, retaining walls, railings, or other landscaping. These barriers must not inhibit emergency egress to a safe distance away from the building.
(i) Open or enclosed courts with resident rooms or living areas opening upon them must not be less than 20 feet in the smallest dimension unless otherwise approved by HHSC. Nonparallel wings forming an acute angle may have a maximum of two windows in each wing that are separated by a distance less than 20 feet, but not less than ten feet, when measured between the nearest edges of the opposing openings. 
(j) Auxiliary buildings located within 20 feet of the main building must meet the applicable requirements in NFPA 101 for separation and construction.
(k) Other buildings on the site must meet the appropriate occupancy section or separation requirements in NFPA 101.
(l) Fire service and access must be as follows:

(1) The facility must be served by a paid or volunteer fire department. The fire department must provide written assurance to HHSC that the fire department can respond to an emergency at the facility within an appropriately prompt time for the travel conditions involved.
(2) The facility must be served by an adequate water supply that is satisfactory and accessible for fire department use as determined by the fire department serving the facility and by HHSC.
(3) There must be at least one readily accessible fire hydrant located within 300 feet of the building. The hydrant must be on a minimum six inch service line. The hydrant, its location, and service line, or equivalent must be as approved by the local fire department and HHSC.
(4) The building must have suitable all-weather fire lanes as required by local fire authorities or, if no local fire authority has jurisdiction, by HHSC. As a minimum, the fire department must be able to access two sides of the building.

(m) Enclosed exterior spaces, such as fenced areas, that are in a means of egress to a public way must meet the requirements of §19.2208(a)(6) of this chapter (relating to Standards for Certified Alzheimer's Facilities).

 

§19.353  General Considerations for New Facilities

(a) Services. A nursing facility must either contain the elements described in this section or the facility must indicate the manner in which the needed services are to be made available.
(b) Sizes. The sizes of the various departments will depend upon program requirements and the organization of services within the facility. Some functions requiring separate spaces or rooms in these minimum requirements may be combined, provided that the resulting plan will not compromise the best standards of safety and of medical and nursing practices.
(c) Shared or combined services. A nursing facility may be operated together with a hospital and may share administration, food service, recreation, janitor service, and physical therapy facilities, but must have clearly identifiable physical separations, such as a separate wing or floor. A nursing facility with different levels of care will require identifiable physical separations. Combined attendant or nurses’ stations and medication room areas will require some separating construction features. An assisted living facility may be operated together with a nursing facility and may share food and laundry service, but must have clearly identifiable physical separations such as a separate wing, or floor, and each facility must independently meet all other requirements within their licensed areas.
(d) Exterior finishes. Unless otherwise approved by HHSC, the exterior finish material of a building classified as fire resistive or protected noncombustible construction, per NFPA 220, must have a flame spread index no greater than 25 and a smoke developed index no greater than 450, when tested according to ASTM E84 or UL 723. All others exterior materials must have a flame spread index no greater than 75 and a smoke developed index no greater than 450. Items of trim may be of combustible material subject to approval by HHSC. Roof covering assemblies must have a Class A or Class B rating, when tested according to ASTM E108 or UL 790.
(e) Accessibility requirements. The facility must comply with accessibility requirements for individuals with disabilities in the revised regulations for Title II and III of the Americans with Disabilities Act of 1990 at 28 CFR Part 35 and Part 36, also known as the 2010 ADA Standards for Accessible Design, and the TAS adopted by the Texas Department of Licensing and Regulation (TDLR) at 16 TAC Chapter 68. A facility must register plans for new construction, substantial renovations, modifications, and alterations with TDLR, Attn: Elimination of Architectural Barriers Program, and comply with the TAS.

 

§19.354  Architectural Space Planning and Utilization for New Facilities

(a) Resident bedrooms. Each resident bedroom must meet the following requirements:

(1) The maximum room capacity must be two residents.
(2) Minimum bedroom area, excluding toilet rooms, closets, lockers, wardrobes, alcoves, or vestibules, must be 100 square feet in single occupancy rooms and 80 square feet per bed in multi-bed rooms.
(3) The minimum allowable room dimension is ten feet. The room must be designed to provide at least 36 inches between beds and 24 inches between any bed and the adjacent wall.
(4) Each room must have at least one operable outside window arranged and located so that it can be easily opened from the inside without the use of tools or keys. The maximum allowable sill height must not exceed 36 inches above the floor. All operable windows must have insect screens. The minimum area of window in each bedroom must equal at least 16 square feet or 8.0% of the gross floor area of the room, whichever is larger. Operable window sections may be restricted to not more than six nor less than four inches for security or safety reasons.
(5) Each room must have general lighting, wall-mounted bed reading lights, and night lighting. The night light must be switched just inside the entrance to each resident room with a silent type switch, must be a recessed wall mounted fixture just inside the entry door to the room and must not be obstructed by the door or furniture, unless otherwise approved by HHSC. The light providing general illumination must be switchable at the door of the resident room for use of staff and residents. A durable non-glare reading light with an opaque front panel securely anchored to the wall, integrally wired, must be provided above each resident bed. The switch for this reading light must be within reach of a resident in the bed.
(6) The minimum number of power receptacles at a resident bed location shall be determined based on the risk assessment required by NFPA 99 and §19.300(i) of this subchapter (relating to General Requirements), as follows:

(A) All receptacles must be listed and identified as “hospital grade”;
(B) Four of the required receptacles must be provided beside the head of each bed;
(C) No fewer than eight receptacles must be provided within the patient care vicinity, as defined in NFPA 99;
(D) If the failure of patient-care-related electrical equipment is likely to cause major injury or death to a resident, no fewer than fourteen receptacles must be provided within the patient care vicinity; and
(E) Additional receptacles, beyond the minimum quantities above, must be provided to ensure the electrical needs of all residents living in the bedroom are met, including power for TV, radio, razors, hairdryers, clocks, or as required by NFPA 99 and NFPA 70.

(7) Each resident bedroom must have direct access to a bathroom without entering the general corridor area. The bathroom must serve no more than one resident room and must include, at least, a lavatory and toilet.
(8) Each resident must have a bed with a comfortable mattress, a bedside stand with at least two enclosed storage spaces, a dresser, and closet or wardrobe space providing privacy for clothing and personal belongings. Private clothes storage space must provide at least 22 inches of lineal hanging space per bed and have closable doors. Chairs and space must be provided for use by residents and visitors.
(9) Each room must open onto an exit corridor and must be arranged for convenient resident access to dining, living, and bathing areas. To ensure a direct view from nurses’ stations, resident room doors must not be recessed into the corridor wall more than four feet. Alcoves must meet applicable accessibility standards for a front approach to the door, and handrails must be provided in the alcove. If an alcove exceeds four feet in depth, it is a corridor and must meet all requirements for corridors, including direct view from a nurses’ station, minimum width of the corridor, and provisions for handrails.
(10) Visual privacy, such as cubicle curtains, must be available for each resident in multi-bed bedrooms. Design for privacy must not restrict resident access to the entry, lavatory, or toilet, nor may it restrict bed evacuation or obstruct sprinkler flow coverage.
(11) At least one noncombustible wastebasket must be provided in each bedroom.
(12) See the requirements in §19.361(d)(4) of this subchapter (relating to Electrical Requirements for New Facilities) for nurse call systems.
(13) Bedrooms must be identified with a raised or recessed unique number placed on or near the door. Refer to TAS for information about signs.
(14) Locks on bedroom doors are permitted when they meet definite resident needs.

(A) Situations in which locks may be necessary include the following:

(i) married couples whose rights of privacy could be infringed upon unless bedroom door locks are permitted; and
(ii) residents for whom the attending physician wants bedroom door locks to enhance the residents’ sense of security.

(B) In situations such as those listed in subparagraph (A) of this paragraph, the following guidelines must be met:

(i) bedroom door locks must be of the type which the occupant can unlock at will from inside the room;
(ii) all bedroom door locks must be of the type which can be unlocked from the corridor side;
(iii) attendants must carry keys which will permit ready access to the locked bedrooms when entrance becomes necessary; and
(iv) locking of bedroom doors by residents for privacy or security will not be permitted except when specifically included in the attending physician's written orders or authorized by the nursing facility administrator.

(15) Vacant bedrooms must not be used for hazardous activities or hazardous storage, unless specifically approved by HHSC in writing.

(b) Nursing service areas. A nursing service area includes a nurses’ station and other areas described in this subsection and must be located in or readily available to each nursing unit. The size and disposition of each service area will depend upon the number and types of beds to be served. Each service area may be arranged and located to serve more than one nursing unit, but at least one service area must be provided on each nursing floor. The maximum allowable distance from a resident room door to a nurses' station is 150 feet. The following requirements are applicable to services areas:

(1) Nurses' stations must be provided with space for nurses' charting, doctors' charting, and storage for administrative supplies. Nurses’ stations must be located to provide a direct view of resident corridors. A nurses’ station has a direct view of a resident corridor if a person can see down the corridor from a point within 24 inches of the outside of the nurses’ station counter or wall. When a nurses’ station does not provide a direct view of a resident corridor, an auxiliary station complying with the following guidelines must be provided.

(A) The auxiliary station must be staffed by nursing personnel during all shifts.

(i) More than one auxiliary station may be assigned to a designated nurses’ station, regardless of the distance between stations.
(ii) The nurse call system for resident corridors monitored by the auxiliary station must report to the auxiliary station.
(iii) Each auxiliary station must meet the emergency electrical requirements for a nurse’s station, including electrical receptacles and emergency lighting.
(iv) If a required auxiliary station does not already exist and the facility must establish a new auxiliary station, all applicable standards, particularly those pertaining to the physical plant and NFPA 101, must be observed.

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

(2) Lounge and toilet room must be provided for nursing staff.
(3) Lockers or security compartments must be provided for the safekeeping of personal effects of staff. These must be located convenient to the duty station of personnel or in a central location.
(4) A clean utility room must contain a work counter, sink with high-neck faucet with lever controls, and storage facilities and must be part of a system for storage and distribution of clean and sterile supply materials.
(5) A soiled utility room must contain a water closet or equivalent flushing rim fixture, a sink large enough to submerge a bedpan with spray hose and high-neck faucet with lever controls, work counter, waste receptacle, and linen receptacle. A soiled utility room must be part of a system for collection and cleaning or disposal of soiled utensils or materials. A separate hand-washing sink must be provided if the bedpan disinfecting sink cannot normally be used for hand-washing.
(6) Provision must be made for convenient and prompt 24-hour distribution of medication to residents. The medication preparation room must be under the nursing staff's visual control and contain a work counter, refrigerator, sink with hot and cold water, and locked storage for biologicals and drugs and must have a minimum area of 50 square feet. The minimum dimension allowed is five feet six inches. An appropriate air supply must be provided to maintain adequate temperature and ventilation for safe storage of medications. For purposes of storage of unrefrigerated medications, the room temperature must be maintained between 59 degrees and 86 degrees Fahrenheit.
(7) Provision must be made for separate closets or room for clean linens. Corridors must not be used for folding or cart storage. Storage rooms must be located and distributed in the building for efficient access to bedrooms.
(8) A soiled linen rooms must meet the requirements in subsection (l)(2)(A) of this section.
(9) A nourishment station is required and must contain a sink equipped for hand-washing, equipment for serving nourishment between scheduled meals, refrigerator, and storage cabinets. Ice for residents' service and treatment must be provided only by icemaker units. This station may be furnished in a clean utility room.
(10) An equipment storage room must be provided for equipment such as intravenous stands, inhalators, air mattresses, and walkers.
(11) Parking spaces for stretchers and wheelchairs must be located out of the path of normal traffic.

(c) Residents' bathing and toilet facilities. The following requirements are applicable to bathing and toilet facilities:

(1) Bathtubs or showers must be provided at the rate of one for each 20 beds which are not otherwise served by bathing facilities within residents' rooms. At least one bathing unit must be provided in each nursing unit. Each tub or shower must be in an individual room or enclosure which provides space for the private use of the bathing fixture, for drying and dressing, including an accessible dressing bench, and for a wheelchair and an attendant. Each general-use bathing room must be provided with at least one water closet in a stall, room, or area for privacy, and one lavatory. A bathing room must be located conveniently to the bedroom area it serves and must not be more than 100 feet from the farthest bedroom.
(2) At least 50% of bathrooms and toilet rooms, fixtures, and accessories must be designed and provided to meet criteria under the Americans with Disabilities Act for individuals with disabilities, unless otherwise approved by HHSC.
(3) All rooms containing bathtubs, sitz baths, showers, and water closets, used by residents must be equipped with doors and hardware that permits access from the outside in any emergency.
(4) Bathing areas must be provided with safe and effective auxiliary or supplementary heating. Bathing areas must be free of drafts and must have adequate exhaust ducted to the outside to minimize excess moisture retention and resulting mold and mildew problems.
(5) Tubs and showers must be provided with slip-proof bottoms.
(6) Lavatories and hand-washing facilities must be securely anchored to withstand an applied downward load of not less than 250 pounds on the front of the fixtures.
(7) Provision must be made for sanitary hand drying and toothbrush storage at lavatories. There must be paper towel dispensers or separate towel racks and separate toothbrush holders.
(8) Mirrors must be arranged for convenient use by residents in wheelchairs as well as by residents in a standing position, and the minimum size must be 15 inches in width by 30 inches in height, or tilt type.
(9) Rooms with toilets must be provided with effective forced air exhaust ducted to the exterior to remove odors. Ducted manifold systems are recommended.
(10) Floors, walls, and ceilings must have nonabsorbent surfaces, be smooth, and be easily cleanable.

(d) Disposal facilities. A policy and procedure for the safe and sanitary disposal of special waste must be provided. Space and facilities must be provided for the sanitary storage of waste by incineration, mechanical destruction, compaction, containerization, removal, or by a combination of these techniques.
(e) Resident living areas. The following requirements are applicable to resident living areas:

(1) Social-diversional spaces such as living rooms, dayrooms, lounges, and sunrooms, must be provided on a sliding scale as follows:


Number of Beds

Area Per Bed Minimum

4-8

A minimum of 144 square feet regardless of the number of beds.

9-15

18 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 (Example: 100 beds = 1,000 square feet)

 

(2) If a required way of exit, or a service way, is through a living or dining area, a pathway equal to the corridor width must be deducted for calculation purposes and discounted from that area. These exit pathways must be kept clear of obstructions.
(3) Each resident living room and dining room must have at least one outside window. The window area must be equal to at least 8.0% of the total room floor area. Sky-lighting may be used to fulfill one-half of the 8.0% minimum area.
(4) Open or enclosed seating space must be provided within view of the main nurses’ station that will allow furniture or wheelchair parking that does not obstruct the corridor way of egress.

(f) Dining space. Dining space must be adequate for the number of residents served, but no less than ten square feet per resident bed.
(g) Dietary facilities. The following requirements are applicable to dietary facilities:

(1) A main or dietary kitchen must be as follows:

(A) A kitchen will be evaluated on the basis of its performance in the sanitary and efficient preparation and serving of meals to residents. Consideration will be given to planning for the type of meals served, the overall building design, the food service equipment, the arrangement, and the work flow involved in the preparation and delivery of food. Plans must include a large-scale detailed kitchen layout designed by a registered or licensed dietitian or architect having knowledge in the design of food service operations.
(B) Kitchens must be designed so that room temperature at summertime peak load will not exceed a temperature of 85 degrees Fahrenheit measured at the five-foot level. The amount of supply air must take into account the large quantities of air that may be exhausted at the range hood and dishwashing area.
(C) Operational equipment must be provided as planned and scheduled by the facility consultants for preparing and serving meals and for refrigerating and freezing of perishable foods, as well as equipment in, or adjacent to, the kitchen or dining area for producing ice.
(D) Facilities for washing and sanitizing dishes and cooking utensils must be provided. These facilities must be designed based on the number of meals served and the method of serving, that is, use of permanent or disposable dishes. The kitchen must contain a multi-compartment sink large enough to immerse pots and pans. A mechanical dishwasher is required for washing and sanitizing dishes. Separation of soiled and clean dish areas must be maintained, including air flow.
(E) A vegetable preparation sink must be provided, and it must be separate from the pot sinks.
(F) A supply of hot and cold water must be provided. Hot water for sanitizing purposes must be 180 degrees Fahrenheit or the manufacturer's suggested temperature for chemical sanitizers. For mechanical dishwashers, the temperature measurement is at the manifold.
(G) A kitchen must be provided with a hand-washing lavatory in the food preparation area with hot and cold water, soap, paper towel dispenser, and waste receptacle. The dish room area must have ready access to a hand-washing lavatory.
(H) Staff rest room facilities with lavatory must be directly accessible to kitchen staff without traversing resident use areas. A facility must provide a vestibule so the rest room door does not open directly into the kitchen.
(I) Janitorial facilities must be provided exclusively for the kitchen and must be located in the kitchen area.
(J) Nonabsorbent smooth finishes or surfaces must be used on kitchen floors, walls, and ceilings. These surfaces must be capable of being routinely cleaned and sanitized to maintain a healthful environment. Counter and cabinet surfaces, inside and outside, must also have smooth, cleanable, relatively nonporous finishes.
(K) Operable windows must have insect screens provided.
(L) Doors between kitchen and dining or serving areas must have a safety glass view panel.
(M) A garbage can or cart washing area with drain and hot water must be provided.
(N) Floor drains must be provided in the kitchen and dishwashing areas.
(O) Vapor removal from cooking equipment must be designed and installed in accordance with NFPA 101.
(P) Grease traps must be provided in compliance with local plumbing code or other nationally recognized plumbing code.

(2) Food storage areas must be as follows:

(A) Food storage areas must provide for storage of a seven-day minimum supply of nonperishable foods at all times.
(B) Shelves must be adjustable wire type. Walls and floors must have a nonabsorbent finish to provide a cleanable surface. No foods may be stored on the floor; dollies, racks, or pallets may be used to elevate foods not stored on shelving.
(C) Dry food storage must have an effective venting system to provide for positive air circulation.
(D) The maximum room temperature for food storage must not exceed 85 degrees Fahrenheit at any time. The measurement must be taken at the highest food storage level but not less than five feet from the floor.
(E) 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 usage.

(3) An auxiliary serving kitchen not contiguous to a food preparation or serving area must be as follows:

(A) If a service area other than the kitchen is used to dispense food, it must be designated as a food service area and must have equipment for maintaining required food temperatures while serving.
(B) Separate food service areas must have hand-washing facilities as a part of the food service area.
(C) Finishes of all surfaces, except ceilings, must be the same as those required for dietary kitchens or comparable areas. See paragraph (1)(J) of this subsection.

(h) Administrative and public areas.

(1) The following elements must be provided in the public area:

(A) The entrance must be at grade level, sheltered from the weather, and able to accommodate wheelchairs. A drive-under canopy must be provided for the protection of residents or visitors entering or leaving a vehicle. The drive-under canopy may be a secondary entrance.
(B) The lobby, which may also be designed to satisfy a portion of the minimum area required for resident living room space, must include:

(i) storage space for wheelchairs if more than one is kept available;
(ii) a reception or information area, which may be adjacent to the lobby if the location is obvious;
(iii) waiting space;
(iv) public toilet facilities for individuals with disabilities, which may be adjacent to the lobby;
(v) at least one public access telephone, installed to meet standards under the Americans with Disabilities Act; and
(vi) a drinking fountain, which may be provided in a common public area and at least one of which must be installed to meet standards under the Americans with Disabilities Act.

(2) The following must be provided in the administrative area:

(A) General or individual offices must be provided for business transactions, medical and financial records, administrative and professional staff, and for private interviews relating to social service, credit, and admissions.
(B) A multipurpose room must be provided for conferences, meetings, and health education purposes including facilities for showing visual aids.
(C) Storage and work area for office equipment and supplies must be provided and accessible to the staff using such items.

(3) Toilet facilities for the disabled must be available in the building.

(i) Physical therapy facilities.

(1) Physical therapy facilities must be provided if required by the treatment program. The facilities stated in subparagraph (B) of this paragraph and paragraph (2)(C)-(E) of this subsection may be planned and arranged for shared use by occupational therapy residents and staff if the treatment program reflects this sharing concept. Physical therapy facilities must include the following:

(A) Provision for privacy at each individual treatment area; hand-washing facilities, one lavatory or sink may serve more than one cubicle; and facilities for the collection of soiled linen and other material that may be used in the therapy.
(B) Residents' dressing areas with accessible benches, showers, lockers, and toilet rooms if the therapy is such that these would be needed at the area.

(2) Physical therapy facilities may also include the following:

(A) treatment areas with space and equipment for the therapies provided;
(B) an exercise area;
(C) storage for clean linen, supplies, and equipment used in therapy;
(D) service sink located near therapy area; and
(E) wheelchair and stretcher storage.

(j) Occupational therapy facilities. Occupational therapy facilities must be provided if required by the treatment program.

(1) An activities area with a sink or lavatory and facilities for collection of waste products prior to disposal must be provided.
(2) Storage for supplies and equipment used in the therapy must be provided.

(k) Personal grooming area, such as a barber or beauty shop. A separate room with appropriate equipment must be provided for hair care and grooming needs of residents in facilities with over 60 beds.
(l) Laundry and linen services.

(1) On-site processing must be as follows:

(A) Because of the high incidence of fires in laundries, it is highly recommended that the laundry be in a separate building 20 feet or more from the main building. If the laundry is located within the main building it must be separated by minimum one-hour fire resistance-rated construction to structure above, and sprinklered, and must be located in a remote area away from resident sleeping areas. Access doors must be from the exterior or interior nonresident use area, such as a service corridor, that is separated from the resident area.
(B) If linen is to be processed on the site, the following must be provided:

(i) A soiled linen receiving, holding, and sorting room with a rinse sink. This area must have a floor drain and forced exhaust to the exterior which must operate at all times there is soiled linen being held in the area.
(ii) A laundry processing room with equipment which can process seven days' worth of laundry within a regularly scheduled work week. Hand-washing facilities must be provided. The washer area must have:
(I) a floor drain;
(II) storage for laundry supplies;
(III) a clean linen inspection and mending room or area and a folding area;
(IV) a clean linen storage, issuing, or holding room or area;
(V) a janitors' closet containing a floor receptor or service sink and storage space for housekeeping equipment and supplies; and
(VI) sanitizing and washing facilities and a storage area for carts.

(C) Soiled and clean operations must be planned to maintain sanitary flow of functions as well as air flow. If carts containing soiled linens from resident rooms are not taken directly to the laundry area, intermediate holding rooms must be provided and located convenient to resident bedroom areas.
(D) Laundry areas must have adequate air supply and ventilation for staff comfort without having to rely on opening a door that is part of the fire wall separation.
(E) Provisions must be made to exhaust heat from dryers and to separate dryer make-up air from the habitable work areas of the laundry.

(2) For off-site linen processing, the following must be provided on the premises:

(A) a soiled linen holding room with adequate forced exhaust ducted to the exterior;
(B) clean linen receiving, holding, inspection, sorting or folding, and storage rooms; and
(C) sanitizing facilities and storage area for carts.

(3) Resident-use laundry, if provided, must be limited to not more than one residential type washer and dryer per laundry room. This room must be classified as a hazardous area according to NFPA 101.

(m) General storage. The following requirements are applicable to general storage facilities:

(1) A general storage room must be provided as needed to accommodate the facility's needs. It is recommended that a general storage area provide at least two square feet per resident bed. This area would be for items such as extra beds, mattresses, appliances, and other furnishing and supplies.
(2) Storage space with provisions for locking and security control must be provided for residents' personal effects which are not kept in their rooms.

(n) Janitors' closet. In addition to the janitors' closet called for in certain departments, a sufficient number of janitors' closets must be provided throughout the facility to maintain a clean and sanitary environment. These must contain a floor receptor or service sink and storage space for housekeeping equipment and supplies.
(o) Maintenance, engineering service, and equipment areas. Space and facilities for adequate preventive maintenance and repair service must be provided. The following spaces are needed and it is suggested that these be part of a separate laundry building or area:

(1) A storage area for building and equipment maintenance supplies, tools, and parts must be provided.
(2) A space for storage of yard maintenance equipment and supplies, including flammable liquids bulk storage, must be provided separate from the resident-occupied facility.
(3) A maintenance and repair workshop of at least 120 square feet and equipment to support usual functions is recommended.
(4) A suitable office or desk space for the maintenance staff is recommended. This space may be located within the repair shop area with space for catalogs, files, and records.

(p) Oxygen. The storage and use of oxygen and oxygen equipment must meet applicable NFPA standards for gas equipment, including NFPA 99. Piped medical gas and vacuum systems must comply with §19.360(e) of this subchapter (relating to Mechanical Requirements for New Facilities).
 

§19.355  Exit Provisions for New Facilities

Exit provisions, including doors, corridors, stairways, other exit-ways, locks, and other applicable items must conform to the requirements of NFPA 101 concerning means of egress and to this section to ensure that residents can be rapidly and easily evacuated from the building at all times, or from one part of the building to a safe area of refuge in another part of the building. Exit provisions are as follows:

(1) Bedroom space arrangement and doors and corridors must be designed for evacuation of bedfast residents by means of rolling the bed to a safe place in the building or to the outside.
(2) Public assembly rooms, common living rooms, dining rooms, and other rooms with a capacity of 50 or more persons or greater than 1,000 square feet in area must have two means of egress remote from each other. Out-swinging doors with panic hardware must be provided for these egress doors.
(3) Exit doors and ways of egress must be maintained clear and free for use at all times, except as permitted by NFPA 101. Furnishings, equipment, carts, and other obstacles must not be left to block egress at any time, except as permitted by NFPA 101.
(4) Steps in interior ways of egress are prohibited. If changes of elevation are necessary within ways of egress, approved ramps with a maximum slope of one unit of rise to 12 units of run must be provided.
(5) Doors in means of egress must be as follows:

(A) Locking hardware or devices which are capable of preventing or inhibiting immediate egress must not be used in any room or area that can be occupied.
(B) A latch or other fastening device on an exit door must be provided with a knob, handle, panic bar, or similar releasing device. The method of operation must be obvious in the dark, without use of a key, and operable by a well-known, one-action operation that will easily operate with normal pressure applied to the door or to the device toward the exterior. Locking hardware which prevents unauthorized entry from the outside is permissible. Self-closing devices and permanently mounted hold-open devices to expedite emergency egress and prevent accidental lock-out must be provided for exterior exit doors.
(C) No screen or storm door may swing against the direction of exit travel when main doors are required to swing out.
(D) To aid in control of wandering residents, buzzers or other sounding devices may be used to announce the unauthorized use of an exit door. Other methods include approved emergency exit door locks or fencing with a gate outside of exit doors which enclose a space large enough to allow the space to be an exterior area of egress and refuge away from the building.
(E) Inactive leaves of double doors may have easily accessible and easily operable bolts if the active leaf is 44 inches wide, where permitted by NFPA 101. Center mullions are prohibited.
(F) Resident baths or toilets having privacy locks will require that keys or devices for opening the doors are kept readily available to the staff.
(G) Folding doors must not be used in exit corridors or other means of egress. Sliding doors, when permitted by NFPA 101, may be used as secondary doors from residents' bedrooms to grade or to a balcony, or in certain other areas, when permitted by NFPA 101. Corridor doors to rooms must swing into the room or be recessed so as not to extend into the corridor when open; however, doors ordinarily kept closed may be excepted.

(6) Horizontal exits, if provided, must be according to NFPA 101.
(7) Areas outside of exterior exit or discharge doors must be as follows:

(A) Provision must be made to facilitate continuation of emergency egress away from a building for a reasonable distance beyond the outside exit door, especially for movement of non-ambulatory residents in wheelchairs and beds. Any condition which may retard or halt free movement and progress outside the exit doors will not be allowed. Ramps must be used outside the exit doors in lieu of steps whenever possible.
(B) The landing outside of each exit door must be essentially the same elevation as the interior floor and level for a distance equal to the door width plus at least four feet. Generally, the difference in floor elevation at an exterior door must not be over 1/2 inch with the outside slope not to exceed 1/4 inch per foot sloping away from the door for drainage on the exterior. In locations north of the +20 Fahrenheit Isothermal Line as defined in the ASHRAE Handbook of Fundamentals, the landing outside of all exit doors must be protected from ice build-up which would prohibit the door from opening or would be a slip hazard.
(C) Emergency egress lighting immediately outside of exit doors is required as a part of the building emergency lighting system. Photocell devices may be used to turn lights off during daylight hours.

(8) The requirements of an emergency lighting system must be in accordance with §19.361 of this division (relating to Electrical Requirements for New Facilities).

 

§19.356  Smoke Compartments (Subdivision of Building Spaces) for New Facilities

(a) Smoke compartments must be as described in NFPA 101 and in this section.
(b) A facility must provide an exit sign on each side of corridor smoke barrier doors, unless otherwise directed by HHSC.
(c) The metal frame for a vision panel in a smoke barrier door must be steel, unless otherwise approved by HHSC. The bottom of a vision panel must be located no more than 43 inches above the floor. A facility must provide push or pull hardware on pairs of opposite swinging, double egress smoke barrier doors in corridors. Door leaves must align in the closed position.
(d) A facility must provide prominent signs on each side of smoke barrier walls in concealed spaces such as attics. The signs must state: "Warning: Smoke/fire barrier. Properly seal all openings."
(e) A facility must provide reasonable access to concealed smoke barrier walls for maintaining smoke dampers, where provided, so that walls and dampers can periodically be visually checked for conformance by facility staff, service personnel, and inspectors. A facility must provide access to both sides of the wall, and to all parts, end-to-end and top-to-bottom. A facility must provide prefabricated metal ceiling access panels, or their equivalent, that are at least 20 inches wide by 20 inches long. Ceiling access panels must be fire resistance-rated if required to maintain the fire resistance rating of a roof-ceiling or floor-ceiling assembly.
(f) A facility should design air systems to avoid ducts that penetrate smoke barrier walls, thus eliminating the need for smoke dampers which are often a problem to maintain in proper working condition.

 

§19.357  Fire Protection Systems for New Facilities

(a) Fire protection systems include detection, alarm, and communication systems; fixed automatic extinguishment systems; and portable extinguishers. These systems must meet the requirements of NFPA 101, and of this section. Components must be compatible and listed by a nationally recognized testing laboratory for the intended use.
(b) Fire protection systems must meet the requirements of all applicable NFPA standards, such as NFPA 72 for alarm systems, as referenced in NFPA 101. Wiring and circuitry for alarm systems must meet the applicable requirements of NFPA standards, including NFPA 70.
(c) Emergency electrical systems must meet the requirements of this division.
(d) A fire alarm system must be installed, maintained, and repaired by an agent having a current certificate of registration from the State Fire Marshal's Office, according to state law. The agent must provide a Fire Alarm Installation Certificate to the facility as required by the State Fire Marshal’s Office.
(e) A fire alarm system must be designed so that whenever a general alarm is sounded by activation of any device, such as a manual pull, smoke detector, fire sprinkler, or kitchen range hood extinguisher, the following must occur automatically:

(1) smoke and fire doors which are held open by approved devices must be released to close;
(2) air conditioning or heating distribution fans serving three or more rooms, or any means of egress, must shut down immediately;
(3) smoke dampers must close; and
(4) the location of an alarm-initiating device must be clearly indicated on the fire alarm control panel and all auxiliary panels.

(f) Fire alarm bells or horns must be located throughout the building for audible coverage. Flashing visual alarm lights must be installed to be visible in corridors and public areas, including dining rooms and living rooms, in a manner that will identify exit routes.
(g) A master control panel, or a fire alarm annunciator panel providing annunciation of all fire alarm signals, that annunciates the location of all alarm, trouble, and supervisory signals, by zone or device, must be visible at the main nurses’ station. Fire alarm system components must be listed as compatible by a nationally recognized testing laboratory. In a zone-based fire alarm system alarm and trouble zones must align with smoke compartments and with floors in multi-story buildings.
(h) A remote annunciator panel, indicating location of alarm initiation and trouble indication, by zone or device, must be located at auxiliary or secondary nurses’ stations on each floor, and must indicate the alarm condition of adjacent zones and the alarm conditions at all other nurses' stations.
(i) A manual pull station must be provided at all exits, in living rooms and dining rooms, and at or near a nurses’ station.
(j) The flow and tamper conditions of a sprinkler system must be monitored by the fire alarm system.
(k) A kitchen range hood extinguisher, if required by NFPA 101 and this subchapter, must be interconnected with the fire alarm system. This interconnection may report as a separate zone on the fire alarm control panel or may be combined with other initiating devices located in the same zone as the range hood is located.
(l) Portable fire extinguishers must be provided throughout the facility as required by NFPA 10 and as determined by the local fire department and HHSC. The following requirements are applicable to fire extinguishers:

(1) Extinguishers in resident corridors must be located so the travel distance from any point to an extinguisher does not exceed 75 feet. Water-type extinguishers must have a capacity of at least 2 1/2 gallons. Dry chemical-type extinguishers must be at least 5 pound ABC extinguishers.
(2) An extinguisher must be installed on a hanger or bracket supplied with the extinguisher or mounted in an approved cabinet. A recessed cabinet is required for an extinguisher located in a corridor.
(3) An extinguisher must be protected from impact or dislodgement.
(4) An extinguisher having a gross weight not exceeding 40 pounds must be installed so the top of the extinguisher is located no more than five feet above the floor. An extinguisher having a gross weight greater than 40 pounds must be installed so the top of the extinguisher is located no more than 3-1/2 feet above the floor. In no case may the clearance between the bottom of an extinguisher and the floor be less than four inches.
(5) A portable extinguisher provided in a hazardous room must be located as close as possible to the exit door opening and on the latch side.
 

§19.358  Hazardous Areas for New Facilities

(a) Protection from hazardous areas must be as required in NFPA 101, except as required or modified in this section. Gas-fired equipment must not be located in attic spaces, except under the following conditions:

(1) the area around the units must have a one-hour fire resistance rating;
(2) the enclosure must have sprinkler protection; and
(3) combustion and venting air must be ducted from the exterior in properly sized metal ducts.

(b) Laboratories must be protected according to NFPA 99.
(c) Cooking equipment must be protected according to NFPA 101.
(d) Doors to hazardous areas must have closers and must be kept closed unless provided with an approved hold-open device such as an alarm activated magnetic hold-open device, as permitted by NFPA 101. Doors must be single-swing type with positive latching hardware. View panels at laundry entrances must be provided and be of materials adequate to maintain the integrity of the door as allowed by NFPA 101.

 

§19.359  Structural Requirements for New Facilities

(a) Every building and portion of a building must be capable of sustaining all dead and live loads in accordance with accepted engineering practices and standards.
(b) Special provisions must be made in the design of buildings in regions where local experience shows loss of life or extensive damage to buildings resulting from hurricanes, tornadoes, earthquakes, or floods.
(c) The facility is responsible for employing qualified personnel in the preparation of plan designs and engineering and in the construction of the facility to ensure that all structural components are adequate, safe, and meet the applicable construction requirements.
(d) The design of the structural system must be done by or under the direction of a professional structural engineer who is currently licensed by the Texas Board of Professional Engineers according to state law.
(e) The parts of the plans, details, and specifications covering the structural design must bear the legible seal of the engineer on the original drawings from which the prints are made.
(f) A building must be constructed according to the locally adopted building code. NFPA 101 must be used for fire safety requirements. Discrepancies between the codes must be called to the attention of HHSC for resolution.
(g) In the absence of a locally-adopted building code, a building must meet the requirements of a nationally recognized model building code. NFPA 101 must be used for fire safety requirements.
(h) Each building must be classified as to building construction type for fire resistance rating purposes according to NFPA 220 and NFPA 101.
(i) Enclosures of vertical openings between floors must meet NFPA 101.
(j) All interior walls, partitions, and roof structure in buildings of fire resistive and noncombustible construction must be according to NFPA 101.
(k) Building insulation materials, unless sealed on all sides and edges in an approved manner, must have a flame spread rating of 25 or less when tested according to ASTM E84 or UL 723.

 

§19.360  Mechanical Requirements for New Facilities

(a) The design of the mechanical systems must be done by or under the direction of a licensed professional mechanical engineer approved by the Texas Board of Professional Engineers to operate in Texas, and the parts of the plans and specifications covering mechanical design must bear the legible seal of the engineer.

(1) Building services pertaining to utilities; heating, ventilating, and air-conditioning systems; vertical conveyors; and chutes must be according to NFPA 101.
(2) Required plumbing fixtures must be according to NFPA 101 and §19.354 of this division (relating to Architectural Space Planning and Utilization for New Facilities) in specific use areas.

(b) Plumbing.

(1) All plumbing systems must be designed and installed according to the requirements of the locally adopted plumbing code. In the absence of a locally-adopted plumbing code, a nationally recognized model plumbing code must be used. Any discrepancy between an applicable code and the requirements of this section must be called to the attention of HHSC for resolution.
(2) Supply systems must ensure adequate hot and cold water. In addition to hot water for kitchen and laundry use, a rule-of-thumb for hot water for resident use at 110 degrees Fahrenheit is to provide 6-1/2 gallons per hour per resident.
(3) Water must be supplied from a system approved by the Water Supply Division of TCEQ, or from a system regulated by an entity responsible for water quality in that jurisdiction as approved by the Water Supply Division of TCEQ.
(4) The sewage system must connect to a system permitted by the Water Quality Division of TCEQ, or to a system regulated by an entity responsible for water quality in that jurisdiction as approved by the Water Quality Division of TCEQ.
(5) The minimum ratio of fixtures to residents shall be as required in §19.354(c) of this division.
(6) For design calculation purposes, resident-use hot water must not exceed 110 degrees Fahrenheit at the fixture. For purposes of conforming to licensure requirements, an operating system providing water from 100 degrees Fahrenheit to 115 degrees Fahrenheit is acceptable. Hot water for laundry and kitchen use must be normally 140 degrees Fahrenheit. Hot water for dish sanitizing must be 180 degrees Fahrenheit.
(7) A facility must provide water closets with a seat height 17 inches to 19 inches from the floor for persons with disabilities.
(8) Showers for wheelchair residents must not have curbs. Tub and shower bottoms must have a slip-resistant surface. Shower and tub enclosures, other than curtains, must be of tempered glass, plastic, or other safe material.
(9) Drinking fountains must not extend into exit corridors.
(10) A facility must provide fixture controls easily operable by residents, such as lever-type controls.
(11) Plumbing fixtures for residents must be vitreous china or porcelain finished cast iron or steel unless otherwise approved by HHSC. Fiberglass bathing units are acceptable if they have a Class B flame spread rating when tested according to ASTM E84.
(12) Hand-washing sinks for staff use must be according to §19.354 of this division. A facility must provide lavatories adjacent to all water closets.
(13) A soiled utility room must be provided with a flushing device, such as a water closet with bedpan lugs; a spray hose with a siphon breaker or similar device, such as a high neck faucet with lever controls; and a deep sink that is large enough to submerse a bedpan. A sterilizer may be used for sanitizing in place of a deep sink.
(14) A facility must install a siphon breaker or back-flow preventer with any water supply fixture if the outlet or attachments may be submerged.
(15) A facility must provide clean-outs for waste piping lines located so there is the least physical and sanitary hazard to residents. To avoid contamination, clean-outs must open to the exterior, where possible.
(16) A facility with a boiler must meet all applicable requirements of Texas Health and Safety Code Chapter 755.

(c) Heating, Ventilating, and Air-Conditioning (HVAC) and Exhaust Systems

(1) General Requirements.

(A) HVAC systems must be designed and installed in accordance with ASHRAE standards, except as may be modified by this section.
(B) HVAC systems serving spaces or providing health functions covered by NFPA 99 must be commissioned as required by NFPA 99.
(C) HVAC systems must meet the requirements of NFPA 90A and NFPA 99.
(D) Mechanical plans must bear a statement verifying that the systems are designed according to NFPA 90A and NFPA 99.
(E) All air-supply and air-exhaust systems must be mechanically-operated.
(F) Ducts must be of metal or other approved noncombustible material. Cooling ducts must be insulated against condensation.
(G) Static pressures of systems must be within limits recommended by ASHRAE and the equipment manufacturer, both upstream and downstream.

(2) Heating and Cooling.

(A) A facility must provide heating and cooling by a central air conditioning system, or a substantially similar air conditioning system. Air conditioning systems must be designed, installed and functioning to maintain temperatures suitable for resident comfort within all areas used by residents.
(B) Design temperatures for heating and cooling must be as required by NFPA 99.
(C) A heating system must be able to maintain a temperature of at least 75 degrees Fahrenheit for all areas occupied by residents. For all other occupied areas, a heating system must be able to maintain a temperature of at least 72 degrees Fahrenheit.
(D) A cooling system must be able to maintain a temperature of not more than 78 degrees Fahrenheit.
(E) Occupied areas generating high heat, such as kitchens, must be provided with a sufficient cool air supply to maintain a temperature not exceeding 85 degrees Fahrenheit at the five-foot level. Supply air volume must be approximately equal to the air volume exhausted to the exterior for these areas.
(F) The location and design of air diffusers, registers, and return air grilles must ensure that residents are not in harmful or excessive drafts in their normal usage of the room.
(G) In geographic locations or interior room areas where extreme humidity levels are likely to occur for extended periods of time, apparatus for controlling humidity levels with automatic humidistat controls, preferably at 40-60% relative humidity, are recommended as part of central systems.
(H) Unvented space heaters and portable heating units must not be used. Heating devices or appliances must not be a burn hazard to residents.
(I) Gas-fired Heating Equipment.

(i) Systems using liquefied petroleum gas fuel must meet the requirements of the Railroad Commission of Texas and NFPA 58.
(ii) A combustion fresh air inlet must be provided to all gas or fossil fuel operated equipment in steel ducts or passages from outside the building according to NFPA 54. Combustion air must be provided through two permanent openings, one commencing within 12 inches of the floor and one commencing within 12 inches of the ceiling.
(iii) A room where gas-fired heating equipment is located must be vented to the exterior to exhaust heated ambient air in the room.

(3) Ventilation.

(A) Air systems must provide for mixing at least 10% outside air for the supply distribution. Blowers for central heating and cooling systems must be designed so that they may run continuously.
(B) A facility must locate an outdoor air intake according to NFPA 99 and as far as practical, but not less than 10 feet, from exhaust outlets or ventilating systems, combustion equipment stacks, medical vacuum systems, plumbing vent stacks, or areas which may collect vehicular exhaust and other noxious fumes.
(C) Fresh air inlets must be appropriately screened to prevent entry of debris, rodents, and animals. A facility must provide access to such screens for periodic inspection and cleaning to eliminate clogging or air stoppage.
(D) A facility must incorporate natural ventilation using windows or louvers, if possible and practical. Windows or louvers must have insect screens.
(E) The design of ventilation systems must provide air movement that is from clean to less clean areas. The ventilation systems must be designed and balanced to provide the pressure relationships to adjacent spaces as required by NFPA 99. The installer must furnish and certify a final engineered system air balance report for the completed system. The report must demonstrate the pressure relationships required by NFPA 99.
(F) Air supply to food preparation areas must not be from air that has circulated through places such as resident bedrooms and baths.
(G) Ventilation rates for all areas of a facility must be as required by NFPA 99. These rates are the minimum acceptable rates, but do not preclude the use of higher ventilation rates.
(H) The bottoms of ventilation openings must be at least three inches above the floor of any room.
(I) A door protecting a corridor or way of egress must not include an air transfer grille or louver. A corridor must not be used to supply air to or exhaust air from any room except that air from a corridor may be used as make-up air to ventilate a small toilet room, a janitor's closet, or a small electrical or telephone closet opening directly on a corridor, provided the ventilation can be accomplished by door undercuts not exceeding 3/4 inches.

(4) Exhaust.

(A) A facility must provide forced air exhaust of all room air directly to the outdoors according to NFPA 99.

(i) Areas such as laundries, kitchens, and dishwashing areas must exhaust all room air to the outdoors to remove excess heat and moisture and to maintain air flow in the direction of clean to soiled areas.
(ii) Unsanitary areas, including janitor’s closets, soiled linen areas, soiled workroom and utility areas, and soiled areas of laundry rooms, must exhaust all room air outdoors.

(B) All exhaust must be continuously ducted to the exterior. Exhausting air into attics or other spaces is not permitted. Exhaust duct material must be metal.
(C) Exhaust hoods, ducts, and automatic extinguishers for kitchen cooking equipment must be according to NFPA 96, when required by NFPA 101.

(5) Integration with Building Construction.

(A) Smoke compartmentation must meet the requirements of §19.356 of this division (relating to Smoke Compartments (Subdivision of Building Spaces) for New Facilities).
(B) An air system must be designed as much as possible to avoid having ducts passing through fire walls or smoke barrier walls. All openings or duct penetrations in these walls must be according to NFPA 101.
(C) A smoke damper at a smoke barrier must close automatically upon activation of the fire alarm system to prevent the flow of air or smoke in either direction, when required by NFPA 101.
(D) A duct with a smoke damper must have maintenance panels for inspection. A maintenance panel must be removable without tools. A facility must provide access in the ceiling or side wall to facilitate smoke damper inspection. A facility must identify the location of dampers on the wall or ceiling of the occupied area below.
(E) A central air supply system or a system serving a means of egress must automatically and immediately shut down upon activation of the fire alarm system, except when such a system is part of an engineered smoke-removal system approved by HHSC.

(6) All ventilation or air-conditioning systems must be equipped with filters as required by NFPA 99. Filters must be of sufficient efficiency to minimize dust and lint accumulations throughout the system and building, including in supply and return plenums and ductwork. Filters must be easily accessible for routine changing or cleaning.

(d) Sprinkler systems. The following requirements are applicable to sprinkler systems:

(1) Sprinkler systems must be according to NFPA 13 and this subchapter.
(2) The design and installation of sprinkler systems must meet any applicable state laws pertaining to these systems and one of the following criteria:

(A) A sprinkler system must be designed by a qualified licensed professional engineer approved by the Texas Board of Professional Engineers to operate in Texas. The engineer must supervise the installation and provide written approval of the completed installation.
(B) A sprinkler system must be planned and installed according to NFPA 13 by a firm with a certificate of registration issued by the State Fire Marshal’s Office. The RME's license number and signature must be included on the prepared sprinkler drawings.

(3) A facility must ensure all sprinkler piping is protected against freezing. The design of freeze protection must minimize the need for dependence on staff action or intervention to provide protection.

(e) Piped gas and vacuum systems. A piped medical gas or medical vacuum system, including a piped oxygen system, a vacuum system, or a drive gas system such as a compressed air system, must be designed, installed, operated and managed according to the requirements of NFPA 99 for new health care facilities, and based on the risk category determined by the assessment required by §19.300(i) of this subchapter (relating to General Requirements).

 

§19.361  Electrical Requirements for New Facilities

(a) The design of the electrical systems must be done by or under the direction of a licensed professional electrical engineer approved by the Texas Board of Professional Engineers to operate in Texas, and the parts of the plans and specifications covering electrical design must bear the legible seal of the engineer.

(1) Utilities; heating, ventilating, and air-conditioning systems; vertical conveyors; and chutes must meet the requirements of NFPA 101, Chapter 9, Building Service and Fire Protection Equipment.
(2) Fire protection systems, including fire alarms, must meet the requirements of §19.357 of this division (relating to Fire Protection Systems for New Facilities).
(3) Lighting and outlets at resident bedrooms must meet the requirements of §19.354 of this division (relating to Architectural Space Planning and Utilization for New Facilities).

(b) Electrical systems.

(1) Electrical systems must meet the installation requirements of NFPA 70.
(2) Electrical systems must meet the performance requirements of NFPA 99.
(3) Branch circuits serving resident bedrooms must meet the requirements of NFPA 99.
(4) Essential Electrical System (EES).

(A) To provide electricity during an interruption of the normal electric supply, an emergency source of electricity must be provided and connected to certain circuits for lighting and power. All facilities covered by this section must comply with the EES requirements for new health care facilities in NFPA 99, based on the risk category determined by the assessment required by §19.300(i) of this subchapter (relating to General Requirements).

(i) If the determined risk category is Category 2, as defined in NFPA 99, the EES must meet the requirements for a Type II EES according to NFPA 99.
(ii) If the determined risk category is Category 1, as defined in NFPA 99, the EES must meet the requirements for a Type I EES according to NFPA 99.
(iii) A Type I EES serving a portion of a facility categorized as Category 1 risk is permitted to also serve a portion of the same facility categorized as Category 2 risk.
(iv) Distribution requirements for Type I or Type II EES must be according to NFPA 99.

(B) In addition to systems and devices required for the type of EES installed, the following systems and devices must be connected to the appropriate branches of the EES, according to NFPA 99:

(i) illumination for the following areas:

(I) means of egress, including areas immediately outside of exit doors;
(II) nurses’ stations;
(III) medication rooms;
(IV) dining, living, and recreation rooms, including activity rooms;
(V) bathing rooms not directly connected to resident bedrooms;

(ii) exit signs and exit directional signs as required by NFPA 101;
(iii) alarm systems, including fire alarms and alarms required for nonflammable medical gas systems, if installed;
(iv) task illumination and selected receptacles at the generator set location;
(v) selected duplex receptacles including receptacles in such areas in resident corridors, at each resident bed location, in nurses’ stations, and in medication rooms, including biologicals refrigerator;
(vi) nurse call systems;
(vii) resident room night lights;
(viii) a light and receptacle in an electrical room or a boiler room;
(ix) elevator cab lighting, control, and communication systems;
(x) all facility telephone equipment;
(xi) paging or speaker systems, if intended for communication during an emergency. Radio transceivers installed for emergency use must be capable of operating for at least one hour upon total failure of both normal and emergency power.
(xii) Heating Equipment to Provide Heating for Resident Bedrooms. A facility must provide heating in resident bedrooms during disruption of the normal power source unless one of the following conditions applies:

(I) The outside design temperature is higher than 20 degrees Fahrenheit (-6.7 degrees Celsius);
(II) The outside design temperature is lower than 20 degrees Fahrenheit (-6.7 degrees Celsius) and, when selected rooms are provided for the needs of all residents, then only such rooms need be heated.
(III) The facility is served by a dual source of normal power.

(xiii) A facility must provide throw-over facilities to allow the temporary operation of any elevator for the release of passengers in instances when an interruption of power would result in elevators stopping between floors.

(C) The emergency lighting must be automatically in operation within ten seconds after the interruption of the normal power supply. Emergency egress lighting must not be switched.
(D) Receptacles and switches connected to emergency power must have red faceplates.
(E) The design and installation of emergency motor generators must be according to NFPA 37, NFPA 99, and NFPA 110.

(i) Nursing facilities and contiguous or same-site facilities, such as hospitals and assisted living facilities, may be served by the same generating equipment so long as the integrity of the individual facilities’ emergency or back-up power systems is not compromised. This permission applies only to the generating equipment and not to automatic or manual transfer switches or to distribution systems.
(ii) Generators must be located a minimum of three feet from a combustible exterior building finish and a minimum of five feet from a building opening, if located on the exterior of the building.
(iii) A facility must provide a noncombustible protective cover or the protection recommended by the manufacturer when a generator is located on the exterior of the building.
(iv) Stored fuel capacity must be sufficient for not less than four hours of required generator operation.
(v) Motor generators fueled by public utility natural gas must have the capability to be switched to an alternate fuel source according to NFPA 70.

(F) The wiring circuits for the EES must be kept entirely independent of all other wiring and must not enter the same race-ways, boxes, or cabinets according to NFPA 70.
(G) A facility must meet the requirements for the administration of the EES, including maintenance and testing of the EES, according to the requirements of NFPA 99 for the type of EES installed, and the requirements of §19.326(d) of this subchapter.

(5) General Lighting Requirements. General lighting requirements are as follows:

(A) All spaces occupied by people, machinery, equipment, approaches to buildings, and parking lots must have lighting.
(B) All quality, intensity, and type of lighting must be adequate and appropriate to the space and all functions within the space.
(C) Minimum lighting levels can be found in the Illuminating Engineering Society Lighting Handbook, latest edition, but must not be lower than the following.

(i) Minimum illumination must be 20-foot candles in resident rooms, corridors, nurses' stations, dining rooms, lobbies, toilets, bathing facilities, laundries, stairways, and elevators. Illumination requirements for these areas apply to lighting throughout the space and are measured at approximately 30 inches above the floor anywhere in the room.
(ii) Minimum illumination for over-bed reading lamps, medication-preparation or storage area, kitchens, and nurses’ station desks must be 50 foot candles. Illumination requirements for these areas apply to the task performed and are measured on the task.

(D) A facility must provide general illumination, with provisions for reduction of light levels at night, in a nursing unit corridor. 
(E) A facility must provide a basket wire guard or other suitable shield to prevent breakage or contact between combustible materials and exposed incandescent light bulbs, or other high-heat generating lamps, in closets or other similar spaces.
(F) Exposed incandescent or fluorescent bulbs are not permitted in food service or other areas where glass fragments from breakage may get into food, medications, linens, or utensils. A facility must protect all fluorescent bulbs with a shield or catcher to prevent bulb drop-out.

(6) Receptacles or convenience outlets.

(A) Receptacles in bedrooms must meet the requirements in §19.354(a)(7) of this division (relating to Architectural Space Planning and Utilization for New Facilities).
(B) Duplex receptacles for general use must be installed in corridors spaced not more than 50 feet apart and within 25 feet of ends of corridors. A facility must provide at least one duplex receptacle with emergency electrical service in each resident corridor.
(C) Receptacles must be provided with emergency electrical service for essential needs such as medication refrigerators and systems or equipment whose failure is likely to result in major injury or death to a resident. 
(D) Receptacles in the remainder of the building must be sufficient to serve the present and future needs of residents and equipment.
(E) Location of receptacles, horizontally and vertically, should be carefully planned and coordinated with the expected designed use of furnishings and equipment to maximize their accessibility and to minimize conditions such as beds or furniture being jammed against plugs used in the outlets.
(F) Exterior receptacles must be an approved waterproof type.
(G) A facility must provide ground fault interruption protection at appropriate locations such as at whirlpools and other wet areas according to the NFPA 70.

(c) Nurse call systems.

(1) A nurse call system consists of power units, annunciator control units, corridor dome stations, emergency call stations, bedside call stations, and activating devices. The units must be compatible and laboratory listed by a nationally recognized testing laboratory for the system and use intended.
(2) Each resident bedroom must be served by at least one call station and each bed must be provided with a call switch. Two call switches serving adjacent beds may be served by one call station. Each call entered into the system must activate a corridor dome light above the bedroom, bathroom, or toilet room corridor door, a visual signal at the nurses’ station which indicates the room from which the call was placed, and a continuous or intermittent continuous audible signal of sufficient amplitude to be clearly heard by nursing staff. The amplitude or pitch of the audible signal must not be such that it is irritating to residents or visitors. The system must be designed so that calls entered into the system may be canceled only at the call station. Intercom-type systems which meet this requirement are acceptable.
(3) A nurse call system that provides two-way voice communication must be equipped with an indicating light at each call station which lights and remains lighted as long as the voice circuit is operating.
(4) A nurse call emergency switch must be provided for resident use at each resident's toilet, bath, and shower. These switches must be usable by residents using the fixtures and by a collapsed resident lying on the floor.
(5) A nurse call system must meet UL 1069 for the core system of power units, annunciator control units, corridor dome lights, emergency call stations, bedside call stations, and activating devices; and
(6) An ancillary or supplemental device, including a pocket pager or other portable device, is not required to meet UL 1069.
 

§19.362  Miscellaneous Details for New Facilities

(a) Safety related details. A high degree of safety for the occupants is needed to minimize accidents more apt to occur with the residents in a nursing facility. Consideration must be given to the fact that many have impaired vision, hearing, spatial perception, and ambulation.

(1) Hazards such as sharp corners, edges, or unexpected steps must be avoided.
(2) Drinking fountains, telephone booths, vending machines, and portable equipment must not restrict corridor traffic or reduce corridor width.
(3) Windows must be designed to prevent residents from accidentally falling through the windows.
(4) Doors that normally stay open or are frequently used must not swing out into the corridor unless required by NFPA 101 or another provision of this subchapter. Alcoves must be provided for doors that must swing outward toward a corridor or way of egress.
(5) Safety glass must be used where required by local building codes or NFPA 101.
(6) Thresholds and expansion joint covers must be flush with the floor surface to facilitate use of wheelchairs and carts.
(7) A facility must provide grab bars at all residents' toilets, showers, tubs, and sitz baths. The bars must be 1-1/4 to 1-1/2 inches in diameter and must have 1-1/2 inch clearance to walls. Bars must have sufficient strength and anchorage to sustain a concentrated load of 250 pounds. Grab bar standards must comply with standards adopted under the Americans with Disabilities Act.
(8) Handrails must be provided on both sides of corridors used by residents, and must meet the following:

(A) A clear distance of 1-1/2 inches must be provided between the handrail and the wall;
(B) Handrails must be securely mounted to withstand downward forces of 250 pounds;
(C) Handrails may be omitted on wall segments less than 18 inches in length;
(D) A window must be considered part of the wall segment in which it is installed and must not interrupt the continuity of the handrail;
(E) Handrails must be mounted 33 inches to 36 inches above the floor, and must comply with standards adopted under the Americans with Disabilities Act and with TAS.
(F) Where fixed furniture is provided in corridors, as permitted by NFPA 101 and §19.326(n) of this subchapter (relating to Safety Operations), the handrail may be omitted, provided the handrail terminates no more than 18 inches from the fixed furniture.

(9) Ends of handrails and grab bars must be constructed with return ends to walls to prevent snagging the clothes of residents.
(10) Ceiling fan blades must be at least seven feet above the floor and be located so as not to interfere with the operation of any ceiling-mounted smoke detectors.

(b) General details.

(1) Concrete floors, whether finished by sealant, or similar product, must not be used as the finished floor unless specifically approved in writing by HHSC. An exception is mechanical equipment rooms and maintenance or similar areas.
(2) Sound separation must be provided in corridor walls and resident room party walls. Provide a minimum Sound Transmission Class of 30 per ASTM E90.
(3) A facility must provide attic access for building maintenance and inspection.
(4) A facility must provide illumination and a safe platform in the attic at all attic access locations.
 

§19.363  Elevators for New Facilities

A facility providing resident-use areas, such as bedrooms, dining rooms, or recreation areas, or resident services, such as diagnostic services or therapy services, located on other than the main entrance floor must provide at least one elevator that complies with the requirements of ASME A17.1.

(1) Number of elevators.

(A) When one to 60 resident beds are located on any floor other than the main entrance floor, a facility must provide at least one hospital-type elevator.
(B) When 61 to 200 resident beds are located on any floor other than the main entrance floor or when major inpatient services are located on a floor other than those containing resident beds, a facility must provide at least two elevators, one of which must be hospital-type. 
(C) When 201 to 350 resident beds are located on any floor other than the main entrance floor, or when major inpatient services are located on a floor other than those containing resident beds, a facility must provide at least three elevators, one of which must be hospital-type.
(D) A facility with a capacity of more than 350 resident beds must determine the number of elevators required from a study of the facility plan and the estimated vertical transportation requirements.
(E) Elevator service may be reduced, with the approval of HHSC, for those floors that provide only partial inpatient services.

(2) Cars and platforms. Cars of hospital-type elevators must have inside dimensions that will accommodate a resident bed and attendants and must be at least five feet wide by seven feet six inches deep. The car door must have a clear opening of not less than three feet eight inches.
(3) Leveling. Elevators must be equipped with an automatic leveling device of the two-way automatic maintaining type with an accuracy of 1/2 inch.
(4) Operation. Elevators, except freight elevators, must be equipped with a two-way special service switch to permit cars to bypass all landing button calls and be dispatched directly to any floor.
(5) Accessibility provisions. Elevator controls, alarm buttons, and telephones must be accessible to and usable by individuals with disabilities as required by the Americans with Disabilities Act.
(6) Protection from fire. Elevator call buttons, controls, and door safety stops must be of a type that will not be activated by heat or smoke. Door openings must meet the requirements of the NFPA 101 for protection of vertical openings.
(7) Field inspection and tests. Inspections and tests must be made and the facility must be furnished written certification that the installation meets the requirements set forth in this section and all applicable safety regulations and codes.

NFRLMC, Subchapter E, Residents Rights

Revision 18-3

 

§19.401 Introduction

(a) The resident has a right to a dignified existence, self-determination, and communication with and access to persons and services inside and outside the facility. A facility must protect and promote the rights of each resident.
(b) The Texas Department of Human Services has developed the following statement of the rights of a resident.
Attachment
(c) The facility must give a copy of the Statement of Resident Rights to each resident, next of kin or guardian, and facility staff member. The facility must maintain a copy of the statement, signed by the resident or the resident's next of kin or guardian, in the facility records.
(d) The Statement of Resident Rights must be posted in accordance with §19.1921 of this title (relating to General Requirements for a Nursing Facility).

 

§19.402 Exercise of Rights

(a) The resident has the right to exercise his rights as a resident at the facility and as a citizen or resident of the United States.
(b) The resident has the right to be free of interference, coercion, discrimination, or reprisal from the facility in exercising his rights.
(c) In the case of a resident adjudged incompetent under the laws of the State of Texas by a court of competent jurisdiction, the rights of the resident are exercised by the person appointed under Texas law to act on the resident's behalf.
(d) The facility must comply with all applicable provisions of the Human Resources Code, Title 6, Chapter 102. An individual may not be denied appropriate care on the basis of his race, religion, color, national origin, sex, age, handicap, marital status, or source of payment.
(e) The facility must allow the resident the right to observe his religious beliefs. The facility must respect the religious beliefs of the resident in accordance with 42 United States Code, §1396f.
(f) Competent adults may issue directives or durable powers of attorney for health care, subject to the requirements of §19.419 of this title (relating to Directives and Durable Powers of Attorney for Health Care).
(g) In the case of a resident not adjudicated incompetent by a state court, any legal surrogate designated in accordance with state law may exercise the resident's rights to the extent provided by state law.

 

§19.403 Notice of Rights and Services

(a) The facility must inform the resident, the resident's next of kin or guardian, both orally and in writing, in a language that the resident understands, of the resident's rights and all rules and regulations governing resident conduct and responsibilities during the stay in the facility. This notification must be made prior to or upon admission and during the resident's stay if changed.
(b) The facility must also inform the resident, upon admission and during the stay, in a language the resident understands, of the following:

(1) facility admission policies;
(2) a description of the protection of personal funds as described in §19.404 of this subchapter (relating to Protection of Resident Funds);
(3) the Human Resources Code, Title 6, Chapter 102; or a written list of the rights and responsibilities contained in the Human Resources Code, Title 6, Chapter 102; and
(4) a written description of the services available through the Ombudsman Program. This information must be made available to each facility by the ombudsman program. Facilities are responsible for reproducing this information and making it available to residents, their families, and legal representatives; and
(5) a written statement to the resident, the resident's next of kin, or guardian describing the facility's policy for:

(A) the drug testing of employees who have direct contact with residents; and
(B) the criminal history checks of employees and applicants for employment; and

(6) HHSC rules and the facility's policies related to the use of restraint and involuntary seclusion. This information must also be given to the resident's legally authorized representative, if the resident has one.

(c) Upon admission of a resident, a facility must:

(1) provide written information to the resident's family representative, in a language the representative understands, of the right to form a family council; or
(2) inform the resident's family representative, in writing, if a family council exists, of the council's meeting time, date, location and contact person.

(d) Receipt of information in subsections (a)-(c) of this section, and any amendments to it, must be acknowledged in writing by all parties receiving the information.

(e) The facility must post a copy of the documents specified in subsections (a)-(b) of this section in a conspicuous location.
(f) The resident or the resident's legal representative has the following rights:

(1) upon an oral or written request to the facility, to access all records pertaining to the resident, including clinical records, within 24 hours (excluding weekends and holidays); and
(2) after receipt of the resident's records for inspection, to purchase photocopies of all or any portion of the records, at a cost not to exceed the community standard, upon request and two workdays advance notice to the facility.

(g) The resident has the right to be fully informed in language the resident understands of the resident's total health status, including the resident's medical condition.
(h) The resident has the right to refuse treatment, to formulate an advance directive (as specified in §19.419 of this subchapter (relating to Advance Directives)), and to refuse to participate in experimental research.

(1) If the resident refuses treatment, the resident must be informed of the possible consequences.
(2) If the resident chooses to participate in experimental research, the resident must be fully notified of the research and possible effects of the research. The research may be carried on only with the full written consent of the resident's physician, and the resident.
(3) Experimental research must comply with Federal Drug Administration regulations on human research as found in 45 Code of Federal Regulations, Part 4b, Subpart A.

(i) The facility must inform each resident before, or at the time of admission, and periodically during the resident's stay (if there are any changes), of services available in the facility and of charges for those services, including any charges for services not covered under Medicare or by the facility's per diem rate. Notice must be in writing, at least 30 days before the effective date of any changes in rates for services not covered by the current charge, or in Medicaid-certified facilities, by Medicaid.
(j) The facility must provide a written description of a resident's legal rights which includes:

(1) a description of the manner of protecting personal funds, described in §19.404 of this subchapter;
(2) a posting of names, addresses, and telephone numbers of all pertinent state client advocacy groups such as HHSC, the Ombudsman Program, the protection and advocacy network, and, in Medicaid-certified facilities, the Medicaid fraud control unit; and
(3) a statement that the resident may file a complaint with HHSC concerning resident abuse, neglect, and misappropriation of resident property in the facility.

(k) The facility must inform a resident of the name, specialty, and way of contacting the physician responsible for the resident's care.
(l) Notification of changes.

(1) A facility must immediately inform the resident; consult with the resident's physician; and if known, notify the resident's legal representative or an interested family member when there is:

(A) an accident involving the resident which results in injury and has the potential for requiring physician intervention;
(B) a significant change in the resident's physical, mental, or psychosocial status (that is, a deterioration in health, mental, or psychosocial status in either life-threatening conditions or clinical complications);
(C) a need to alter treatment significantly (that is, a need to discontinue an existing form of treatment due to adverse consequences, or to commence a new form of treatment); or
(D) a decision to transfer or discharge the resident from the facility.

(2) The facility also must promptly notify the resident and, if known, the resident's legal representative or interested family member when there is:

(A) a change in room or roommate assignment as described in §19.701(4)(B) of this chapter (relating to Quality of Life); or
(B) a change in resident rights under federal or state law or regulations as described in subsection (a) of this section.

(3) The facility must record and periodically update the address and phone number of the resident's family or legal representative, or a responsible party.

(m) Additional requirements for Medicaid-certified facilities. Medicaid-certified facilities must:

(1) provide the resident with the state-developed notice of rights under §1919 (e)(6) of the Social Security Act (see also §19.402 of this subchapter (relating to Exercise of Rights));
(2) inform a resident who is entitled to Medicaid benefits, in writing, at the time of admission to the nursing facility or, when the resident becomes eligible for Medicaid of:

(A) the items and services that are included in nursing facility services provided under the State Plan and for which the resident may not be charged;
(B) those other items and services that the facility offers and for which the resident may be charged, and the amount of charges for those services;

(3) inform each resident when changes are made to the items and services specified in paragraphs (2)(A) and (2)(B) of this subsection;
(4) provide a written description of the requirements and procedures for establishing eligibility for Medicaid, including the right to request an assessment under §1924(c) of the Social Security Act which:

(A) is used to determine the extent of a couple's nonexempt resources at the time of institutionalization; and
(B) attributes to the community spouse an equitable share of resources which cannot be considered available for payment toward the cost of the institutionalized spouse's medical care in the process of spending down to Medicaid eligibility levels; and

(5) prominently display in the facility written information, and provide to residents and potential residents oral and written information about how to apply for and use Medicare and Medicaid benefits, and how to receive funds for previous payments covered by such benefits.

 

§19.404 Protection of Resident Funds

(a) Management of financial affairs. The resident has the right to manage his financial affairs and the facility may not require residents to deposit their personal funds with the facility. The resident may designate another person to manage his financial affairs.
(b) Management of personal funds.

(1) Licensed-only facilities. Upon written authorization of a resident, the facility may hold, safeguard, manage, and account for the personal funds of the resident deposited with the facility. The facility will act as a fiduciary agent if the facility holds, safeguards, and accounts for the resident's personal funds.
(2) Medicaid-certified facilities. Upon written authorization of a resident, the facility must hold, safeguard, manage, and account for the personal funds of the resident deposited with the facility, as described in §19.405 of this title (relating to Additional Requirements for Trust Funds in Medicaid-Certified Facilities). The facility will act as a fiduciary agent if the facility holds, safeguards, and accounts for the resident's personal funds.

(c) Statement of resident rights and responsibilities. The facility must provide each resident and responsible party with a written statement at the time of admission that meets the following requirements:

(1) the statement describes the resident's rights to select how personal funds will be handled. The following alternatives must be included:

(A) the resident has the right to manage his financial affairs;
(B) the facility may not require residents to deposit their personal funds with the facility;
(C) the facility has an obligation, upon written authorization of a resident, to hold, safeguard, manage, and account for the personal funds of the resident deposited with the facility;
(D) the resident has a right to apply to the Social Security Administration to have a representative payee designated for federal or state benefits to which he may be entitled; and
(E) except when subparagraph (D) of this paragraph applies, the resident has a right to designate in writing another person to manage personal funds;

(2) the statement notes, when applicable, that any charge for the facility handling a Medicaid recipient's personal funds is included in the facility's basic rate; and
(3) the statement advises the resident that the facility must have written permission from the resident, responsible party, or legal representative to handle his personal funds.

 

§19.405 Additional Requirements for Trust Funds in Medicaid-Certified Facilities

(a) Deposit of funds. The facility must keep funds received from a resident for holding, safeguarding, and accounting, separate from the facility's funds.

(1) This separate account must be identified "(Name of Facility), Resident's Trust Fund Account," or by a similar title that shows a fiduciary relationship exists between a resident and the facility.
(2) A facility may commingle the trust funds of Medicaid residents and private-pay residents.
(3) If the funds are commingled, the facility must provide, upon request, the following records to the Department of Aging and Disability Services, the Texas attorney general's Medicaid Fraud Control Unit, and the U.S. Department of Health and Human Services:

(A) copies of release forms signed and dated by each private-pay resident or responsible party whose funds are commingled; and
(B) legible copies of the trust fund records of private-pay residents whose funds are commingled.

(4) The facility must maintain the forms and records described in paragraph (3) of this subsection in the same manner as the financial records of Medicaid residents as specified in this section.
(5) A facility must ensure that a release form described in paragraph (3)(A) of this subsection:

(A) includes permission for the facility to maintain trust fund records of private-pay residents in the same manner as those of Medicaid residents;
(B) is obtained from a private-pay resident upon admission or at the time of request for trust fund services; and
(C) includes a provision allowing inspection of the private-pay resident’s trust fund records by the agencies described in paragraph (3) of this subsection.

(b) Funds in excess of $50. The facility must deposit any residents' personal funds in excess of $50 in an interest-bearing account (or accounts) that is separate from any of the facility's operating accounts, and that credits all interest earned on the residents' funds to that account. In pooled accounts, there must be a separate accounting for each resident's share.
(c) Funds less than $50. The facility may maintain a resident's personal funds that do not exceed $50 in a noninterest-bearing account, interest-bearing account, or petty cash fund.
(d) Accounting and records.

(1)The facility must:

(A) establish and maintain current, written, individual records of all financial transactions involving a resident's personal funds that the facility is holding, safeguarding, and accounting;
(B) keep these records in accordance with:

(i) the American Institute of Certified Public Accountants' Generally Accepted Accounting Principles; and
(ii) the requirements of law for a fiduciary relationship; and

(C) include at least the following in these records:

(i) resident's name;
(ii) identification of resident's legally authorized representative, representative payee, or responsible party, if any, and payor source;
(iii) valid letter of guardianship, if any;
(iv) valid power of attorney, if any;
(v) resident’s admission and discharge dates;
(vi) resident’s trust fund ledger containing the following:

(I) description of each transaction;
(II) the date and amount of each deposit and withdrawal;
(III) the name of the person who accepted any withdrawn funds;
(IV) the balance after each transaction; and
(V) amount of interest earned, posted at least quarterly;

(vii) receipts for purchases and payments, including cash-register tapes or sales statements from a seller;
(viii) written requests for personal funds from the trust fund account; and
(ix) written requests for specific brands, items, or services.

(2)The facility must maintain the following as general trust fund records:

(A) valid trust fund trial balance;
(B) petty cash logs;
(C) bank statements for trust fund and operating accounts;
(D) trust fund checkbook and register;
(E) trust fund account monthly reconciliations;
(F) trust fund bank account agreement form;
(G) applied income ledgers;
(H) applied income payment plans from DADS;
(I) proof of surety bond;
(J) written agreements (e.g., bed hold, private room); and
(K) facility census, admission, discharge, and leave records.

(3) A resident must approve a withdrawal from the resident’s personal funds by signing a document that shows the resident's approval and the date of the approval.
(4) Except as provided in subparagraph (B) of this paragraph, a facility must obtain a receipt for the purchase of an item or service.

(A) The receipt must contain:

(i) the resident's name;
(ii) the date the receipt was written or created;
(iii) the amount of funds spent;
(iv) the specific item or service purchased;
(v) the name of the business from which the purchase was made; and
(vi) the signature of the resident.

(B) A receipt is not required if:

(i) a purchase is made with funds withdrawn in accordance with paragraph (3) of this subsection;
(ii) a purchase is made by the resident, a legally authorized representative, a responsible party, or an individual (other than facility personnel) authorized in writing by the resident; or
(iii) the item purchased costs one dollar or less.

(5) If a facility cannot obtain the signature of a resident as required by paragraph (3) or (4)(A)(vi) of this subsection, the facility must obtain the signature of a witness. The witness may not be the person responsible for accounting for the resident's trust funds, that person's supervisor, or the person who accepts the withdrawn funds or who sells the item being purchased. The facility and DADS staff must be able to identify the witness's name, address, and relationship to the resident or facility.

(e) Notice of certain balances. The facility must notify each resident that receives Medicaid benefits:

(1) if the amount in the resident's account reaches $200 less than SSI resource limit for one person, specified in §1611(a)(3)(B) of the Social Security Act; and
(2) that, if the amount in the account, in addition to the value of the resident's other nonexempt resources, reaches the SSI resource limit for one person, the resident may lose eligibility for Medicaid or SSI.

(f) Conveyance upon death.

(1) If a resident with personal funds managed by a facility dies, the facility must convey, within 30 days after the resident's death, the resident’s funds and a final accounting of those funds to the individual or probate jurisdiction administering the resident's estate, or make a bona fide effort to locate the responsible party or heir to the estate (see also §19.416 of this title (relating to Personal Property)).
(2) If a facility is not able to convey funds in accordance with paragraph (1) of this subsection, the facility must, within 30 days after the resident’s death;

(A) hold the funds by depositing them in a separate account or maintaining them in an existing account, designating on the account records that the resident is deceased; or
(B) submit funds to DADS in accordance with paragraph (4) of this subsection.

(3) If the facility holds funds in accordance with paragraph (2)(A) of this subsection:

(A) the facility must provide DADS with a notarized affidavit that contains:

(i) the resident's name;
(ii) the amount of funds being held;
(iii) a description of the facility's efforts to locate a responsible party or heir;
(iv) a statement acknowledging that the funds are not the property of the facility, but the property of the deceased resident's estate; and
(v) a statement that the facility will hold the funds until they are conveyed to a responsible party or heir or submitted to DADS in accordance with paragraph (4) of this subsection;

(B) the facility must submit the funds to DADS in accordance with paragraph (4) of this subsection within 180 days after the resident's death; and
(C) funds held by a facility in accordance with this paragraph may be monitored or reviewed by DADS or the Health and Human Services Commission, Office of Inspector General.

(4) A facility must submit unclaimed funds to DADS, Accounts Receivable, Mail Code E-411, P.O. Box 149030, Austin Texas 78714-9030.

(A) The funds must be identified as money that will escheat to the state.
(B) If the facility held the funds in accordance with paragraph (3) of this subsection, the facility must include the notarized affidavit described in paragraph (3)(A) of this subsection. (g) Assurance of financial security. The facility must purchase a surety bond, or otherwise provide assurance satisfactory to the Secretary of Health and Human Services to ensure the security of all personal funds of residents deposited with the facility.

(1) The amount of a surety bond must equal the average monthly balance of all the facility's resident trust fund accounts for the 12-month period preceding the bond issuance or renewal date.
(2) Resident trust fund accounts are specific only to the single facility purchasing a resident trust fund surety bond.
(3) If a facility employee is responsible for the loss of funds in a resident's trust fund account, the resident, the resident's family, and the resident's legal representative are not obligated to make any payments to the facility that would have been made out of the trust fund had the loss not occurred.

(h) Items and services that may not be charged to a resident’s personal funds.

(1) The facility may not impose a charge against the personal funds of a resident for any item or service for which payment is made under Medicaid or Medicare.
(2) Items or services included in Medicare or Medicaid payment that may not be billed to the resident's personal funds by the facility include:

(A) nursing services as required in §19.1001 of this title (relating to Nursing Services);
(B) dietary services as required in §19.1101 of this title (relating to Dietary Services);
(C) an activities program as required in §19.702 of this title (relating to Activities);
(D) room and bed maintenance services;
(E) routine personal hygiene items and services as required to meet the needs of the resident, including, but not limited to:

(i) hair hygiene supplies, including shampoo, comb, and brush;
(ii) bath soaps, disinfecting soaps, or specialized cleansing agents when indicated to treat special skin problems or to fight infection;
(iii) razor and shaving cream;
(iv) toothbrush, toothpaste, and dental floss;
(v) denture adhesive and denture cleanser;
(vi) moisturizing lotion;
(vii) tissues, cotton balls, and cotton swabs;
(viii) deodorant;
(ix) incontinent care and supplies, to include, but not limited to, cloth or disposable incontinent briefs;
(x) sanitary napkins and related supplies;
(xi) towels and washcloths;
(xii) hospital gowns;
(xiii) over-the-counter drugs;
(xiv) hair and nail hygiene services; and
(xv) personal laundry; and

(F) medically-related social services as required in §19.703 of this title (relating to Social Services General Requirements).

(3) A facility must base necessity for and type of incontinent brief described in paragraph (2)(E)(ix) of this subsection on an assessment of the resident's medical and psychosocial condition and resulting determination.

(i) Items and services that may be charged to a resident's personal funds. The facility may charge a resident for requested services that are more expensive than or in excess of covered services in accordance with §19.2601 of this title (relating to Vendor Payment (Items and Services Included)). The following list contains general categories and examples of items and services that the facility may charge to a resident's personal funds if they are requested by a resident, if the facility informs the resident that there will be a charge, and if payment is not made by Medicare or Medicaid:

(1) telephone;
(2) television or radio for personal use;
(3) personal comfort items, including smoking materials, notions and novelties, and confections;
(4) cosmetics and grooming items and services in excess of those for which payment is made under Medicare or Medicaid;
(5) personal clothing;
(6) personal reading material;
(7) gifts purchased on behalf of a resident;
(8) flowers and plants;
(9) social events and entertainment offered outside the scope of the activities program, provided under §19.702 of this title;
(10) noncovered special care services, such as privately hired nurses and aides;
(11) private room, except when therapeutically required, such as isolation for infection control;
(12) specially-prepared or alternative food requested instead of the food generally prepared by the facility, as required in §19.1101 of this title; and
(13) incontinent briefs if the resident's legally authorized representative or responsible party submits a written request to the facility and the attending physician and director of nurses (DON) determine and document in the clinical record that there is no medical or psychosocial need for supplies.

(j) Request for items or services that may be charged to a resident's personal funds. The facility must:

(1) not charge a resident, nor his representative, for any item or service not requested by the resident;
(2) not require a resident, or his representative, to request any item or service as a condition of admission or continued stay; and
(3) inform the resident or his representative, when he requests an item or service for which a charge will be made, that there will be a charge for the item or service and the amount of the charge.

(k)Access to financial record. The individual financial record must be available on request to the resident, responsible party, representative payee or legal representative.

(l)Quarterly statement.

(1) The individual financial record must be available, through quarterly statements and on request, to the resident, legally authorized representative, representative payee, or responsible party.
(2) The statement must reflect any resident’s funds that the facility has deposited in an account as well as any resident’s funds held by the facility in a petty cash account.
(3) The statement must include at least the following:

(A) balance at the beginning of the statement period;
(B) total deposits and withdrawals;
(C) interest earned, if any;
(D) bank name and location of any account in which the resident’s personal funds have been deposited; and
(E) ending balance.

(m) Banking charges.

(1) Charges for checks, deposit slips, and services for pooled checking accounts are the responsibility of the facility and may not be charged to the resident, legally authorized representative, or responsible party.
(2) Bank service charges and charges for checks and deposit slips may be deducted from the individual checking accounts if it is the resident’s written, individual choice to have this type of account.
(3) Bank fees on individual accounts established solely for the convenience of the facility are the responsibility of the facility and may not be charged to the resident, legally authorized representative, or responsible party.
(4) The facility may not charge the resident, legally authorized representative, or responsible party for the administrative handling of either type of account.
(5) If the facility places any part of the resident's funds in savings accounts, certificates of deposit, or any other plan whereby interest or other benefits are accrued, the facility must distribute the interest or benefit to participating residents on an equitable basis. If pooled accounts are used, interest must be prorated on the basis of actual earnings or end-of-quarter balances.

(n) Access to funds.

(1) Disbursements from the trust fund.

(A) A request for funds from the trust fund or trust fund petty cash box may be made, either orally or in writing, by the resident, the resident's legally authorized representative, representative payee, or responsible party to cover a resident's expenses.
(B) The facility must respond to a request received during normal business hours at the time of the request.
(C) The facility must respond to a request received during hours other than normal business hours immediately at the beginning of the next normal business hours.

(2) Discontinuing trust fund participation.

(A) If a resident, legally authorized representative, or responsible party requests that the facility discontinue managing the resident's personal funds the facility must return to the resident, legally authorized representative, or responsible party all of the resident's personal funds held by the facility, including any interest accrued.
(B) If the request is made during normal business hours, the facility must immediately return the funds.
(C) If the request is made during hours other than normal business hours, the facility must return the funds immediately during the next normal business hours.

(3) Transfer or discharge. If a resident is transferred or discharged from a facility, the facility must, within five working days after the transfer or discharge, return to the resident, legally authorized representative, or responsible party all of the resident's personal funds held by the facility, including any interest accrued.
(4) For purposes of this subsection, normal business hours are 8:00 a.m. to 5:00 p.m., Monday through Friday, excluding national holidays.

(o) Handling of monthly benefits. If the Social Security Administration has determined that a Title II and Title XVI Supplemental Security Income (SSI) benefit to which the resident is entitled should be paid through a representative payee, the provisions in 20 Code of Federal Regulations (CFR), §§404.2001 - 404.2065, for Old Age, Survivors, and Disability Insurance benefits and 20 CFR, §§416.601 - 416.665, for SSI benefits apply.
(p) Change of ownership. If the ownership of a facility changes, the former owner must transfer the bank balances or trust funds to the new owner with a list of the residents and their balances. The former owner must get a receipt from the new owner for the transfer of these funds. The former owner must keep this receipt for monitoring or audit purposes.
(q) Alternate forms of documentation. Without DADS prior written approval, a facility may not submit alternate forms of documentation, including affidavits, to verify a resident's personal fund expenditures or as proof of compliance with any requirements specified in these requirements for the resident's personal funds.
(r) Limitation on certain charges. A nursing facility may not impose charges for certain Medicaid-eligible individuals, for nursing facility services that exceed the per diem amount established by DADS for such services. "Certain Medicaid-eligible individuals" means an individual who is entitled to medical assistance for nursing facility services, but for whom such benefits are not being paid because, in determining the individual’s income to be applied monthly to the payment for the costs of nursing facility services, the amount of such income exceeds the payment amounts established by DADS.
(s) Trust fund monitoring and audits.

(1) DADS may periodically monitor all trust fund accounts to assure compliance with this section. DADS notifies a facility of monitoring plans and gives a report of the findings to the facility.
(2) DADS may, as a result of monitoring, refer a facility to the Office of Inspector General (OIG) for an audit.
(3) The facility must provide all records and other documents required by subsection (d) of this section to DADS upon request.
(4) DADS provides the facility with a report of the findings, which may include corrective actions that the facility must take and internal control recommendations that the facility may follow.
(5) The facility may request an informal review in accordance with subsection (t) of this section or a formal hearing in accordance with subsection (u) of this section to dispute the report of findings.
(6) If the facility does not request an informal review or a formal hearing and the report of findings requires corrective actions, the facility must complete corrective actions within 60 days after receiving the report of findings.
(7) If the facility does not complete corrective actions required by DADS within 60 days after receiving the report of findings, DADS may impose a vendor hold on payments due to the facility under the provider agreement until the facility completes corrective actions.
(8) If DADS imposes a vendor hold in accordance with paragraph (7) of this subsection, the facility may request a formal hearing in accordance with subsection (u)(5) of this section. If the failure to correct is upheld, DADS continues the vendor hold until the facility completes the corrective actions.

(t) Informal review.

(1) A facility that disputes the report of findings described in subsection (s)(4) of this section may request an informal review under this section. The purpose of an informal review is to provide for the informal and efficient resolution of the matters in dispute and is conducted according to the following procedures:

(A) DADS must receive a written request for an informal review by United States (U.S.) mail, hand delivery, special mail delivery, or fax no later than 15 days after the date on the written notification of the report of findings described in subsection (s)(4) of this section. If the 15th day is a Saturday, Sunday, national holiday, or state holiday, then the first day following the 15th day is the final day the written request will be accepted. A request for an informal review that is not received by the stated deadline is not granted.
(B) A facility must submit a written request for an informal review:

(i) by U.S. mail to DADS Trust Fund Monitoring Unit, Attn: Manager, P.O. Box 149030, Mail Code W-340, Austin, Texas 78714-9030;
(ii) hand delivery or special mail delivery to 701 West 51st Street, Austin, Texas 78751-2321; or
(iii) by fax to (512) 438-3639.

(C) A facility must, with its request for an informal review:

(i) submit a concise statement of the specific findings it disputes;
(ii) specify the procedures or rules that were not followed;
(iii) identify the affected cases;
(iv) describe the reason the findings are being disputed; and
(v) include supporting information and documentation that directly demonstrates that each disputed finding is not correct.

(D) DADS does not grant a request for an informal review that does not meet the requirements of this subsection.

(2) Informal review process. Upon receipt of a request for an informal review, the Trust Fund Monitoring Unit Manager coordinates the review of the information submitted.

(A) Additional information may be requested by DADS, and must be received in writing by U.S. mail, hand delivery, special mail, or fax in accordance with paragraph (1)(B)(i) - (iii) of this subsection no later than 15 days after the date the facility receives the written request for additional information. If the 15th day is a Saturday, Sunday, national holiday, or state holiday, then the first day following the 15th day is the final day the additional information will be accepted.
(B) DADS sends its written decision to the facility by certified mail, return receipt requested.

(i) If the original findings are upheld, DADS continues the schedule of deficiencies and requirement for corrective action.
(ii) If the original findings are reversed, DADS issues a corrected schedule of deficiencies with the written decision.
(iii) If the original findings are revised, DADS issues a revised schedule of deficiencies including any revised corrective action.
(iv) If the original findings are upheld or revised, the facility may request a formal hearing in accordance with subsection (u) of this section.
(v) If the original findings are upheld or revised and the facility does not request a formal hearing, the facility has 60 days from the date of receipt of the written decision to complete the corrective actions. If the facility does not complete the corrective actions by that date, DADS may impose a vendor hold. If DADS imposes a vendor hold, the facility may request a formal hearing in accordance with subsection (u)(5) of this section. If the failure to correct is upheld, DADS continues the vendor hold until the facility completes the corrective action.

(u) Formal hearing.

(1) The facility must submit a written request for a formal hearing under this section to: HHSC Appeals Division, Mail Code W-613, P.O. Box 149030, Austin, Texas 78714-9030.
(2) The written request for a formal hearing must be received within 15 days after:

(A) the date on the written notification of the report of findings described in subsection (s)(4) of this section; or
(B) the facility receives the written decision sent as described in subsection (t)(2)(B) of this section.

(3) A formal hearing is conducted in accordance with Texas Administrative Code, Title 1, Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act).
(4) No later than 60 days after a final determination is issued as a result of a formal hearing requested by a facility under subsection (s)(8) or (t)(2)(B)(iv) of this section, the facility must complete any corrective action required by DADS or be subject to a vendor hold on payments due to the facility under the provider agreement until the facility completes corrective action. If DADS imposes a vendor hold, the facility may request a formal hearing in accordance with paragraph (5) of this subsection. If the failure to correct is upheld, DADS continues the vendor hold until the facility completes the corrective action.
(5) If DADS imposes a vendor hold under subsections (s)(7), (t)(2)(B)(v), or (u)(4) of this section, the facility may request a formal hearing within 15 days after receiving notice of the correction failure and the vendor hold. The formal hearing is limited to the issue of whether the facility completed the corrective action.

 

§19.406 Free Choice

(a) Resident rights. The resident has the right to:

(1) choose and retain a personal attending physician, subject to that physician's compliance with the facility's standard operating procedures for physician practices in the facility;
(2) be fully informed in advance about care and treatment and of any changes in that care or treatment that may affect the resident's well-being; and
(3) unless adjudged incompetent or otherwise found to be incapacitated under the laws of the State of Texas, participate in planning care and treatment or changes in care and treatment. See §19.419 of this title (relating to Directives and Durable Powers of Attorney).

(b) Licensed-only facilities. The resident must be allowed complete freedom of choice to obtain pharmacy services from any pharmacy that is qualified to perform the services. A facility must not require residents to purchase pharmaceutical supplies or services from the facility itself or from any particular vendor. The resident has the right to be informed of prices before purchasing any pharmaceutical item or service from the facility, except in an emergency.
(c) Additional requirements regarding freedom of choice for Medicaid recipients. The recipient must be allowed complete freedom of choice to obtain any Medicaid services from any institution, agency, pharmacy, person, or organization that is qualified to perform the services, unless the provider causes the facility to be out of compliance with the requirements specified in this chapter.

(1) A facility must not require recipients to purchase supplies or services, including pharmaceutical supplies or services, from the facility itself or from any particular vendor. The recipient has the right to be informed of prices before purchasing any item or services from the facility, except in an emergency (see §19.1502(b)(3) of this title (relating to Choice of Pharmacy Provider)).
(2) The facility must furnish Medicaid recipients with complete information about available Medicaid services, how to obtain these services, their rights to freely choose service providers as specified in this subsection and the right to request a hearing before the Texas Department of Human Services (DHS) if the right to freely choose providers has been abridged without due process.

 

§19.407 Privacy and Confidentiality

The resident has the right to personal privacy and confidentiality of his personal and clinical records. (See also §19.1910(e) of this title (relating to Clinical Records) and §19.403(e) of this title (relating to Notice of Rights and Services).)
(1) Personal privacy includes accommodations, medical treatment, written and telephone communications, personal care, visits, and meetings of family and resident groups, but this does not require the facility to provide a private room for each resident.
(2) Except as provided in paragraph (3)(B) of this section, the resident may approve or refuse the release of personal and clinical records to any individual outside of the facility.
(3) The resident's right to refuse release of personal and clinical records does not apply when:

(A) the resident is transferred to another health care institution;
(B) record release is required by law; or
(C) during surveys.

(4) The facility must ensure the resident's right to privacy in the following areas:

(A) accommodations as described in §19.1701 of this title (relating to General Requirements);
(B) medical treatment. The facility must provide privacy to each resident during examinations, treatment, case discussions, and consultations. Staff must treat these matters confidentially;
(C) personal care;
(D) access and visitation as described in §19.413 of this title (relating to Access and Visitation Rights);
(E) governmental searches are permitted only if there exists probable cause to believe an illegal substance or activity is being concealed. Administrative searches by the appropriate entity, such as the fire inspector, are allowed only for limited purposes, but such searches would not ordinarily extend to the resident's personal belongings. The Texas Department of Human Services (DHS) and the nursing facility must provide for and allow residents their individual freedoms. State statutes authorize inspections of the nursing facility but do not authorize inspection of those areas in which an individual has a reasonable expectation of privacy. Any direct participation by DHS personnel in an inspection of "the contents of residents' personal drawers and possessions," is in violation of federal and state law; and
(F) the resident has the right to privacy for meetings with family and resident groups.

(5) All information that contains personal identification or descriptions which would uniquely identify an individual resident or a provider of health care is considered to be personal and private and will be kept confidential. Personal identifying information (except for PCN numbers) will be deleted from all records, reports, and/or minutes from formal studies which are forwarded to DHS, or anyone else. These records, reports, and/or minutes, which have been de-identified, will still be treated as confidential. All such material mailed to DHS or anyone else must be in a sealed envelope marked "Confidential."

 

§19.408 Grievances

(a) A resident has the right to:

(1) voice grievances without discrimination or reprisal. These grievances include those with respect to treatment which has been furnished as well as that which has not been furnished;
(2) prompt efforts by the facility to resolve grievances the resident may have, including those with respect to the behavior of other residents; and
(3) notify state agencies of complaints against a facility. Complaints will be acknowledged by the staff of the agency that receives the complaint. All complaints will be investigated, whether oral or written.

(b) A nursing facility may not retaliate or discriminate against a resident, a family member or guardian of the resident, or a volunteer because the resident, the resident's family member or guardian, a volunteer, or any other person:

(1) makes a complaint or files a grievance concerning the facility;
(2) reports a violation of law, including a violation of laws or regulations regarding nursing facilities; or
(3) initiates or cooperates in an investigation or proceeding of a governmental entity relating to care, services, or conditions at the nursing facility.

(c) A facility may 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 a restraint or involuntary 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 a restraint or involuntary seclusion at the facility.

 

§19.409 Examination of Survey Results

The resident has the right to:

(1) examine the results of the most recent survey of the facility conducted by federal or state surveyors and any plan of correction in effect with respect to the facility. The facility must make the results available for examination in a place readily accessible to residents, and must post a notice of their availability; and
(2) receive information from agencies acting as client advocates, and be afforded the opportunity to contact these agencies.

 

§19.410 Refunds in Medicaid-Certified Facilities

(a) The nursing facility must refund private funds paid to the facility for periods covered by Medicaid, including retroactive periods of Medicaid coverage, when:

(1) the Medicaid vendor payment has been accepted by the nursing facility; or
(2) the nursing facility has been notified by the Texas Department of Human Services (DHS) about an individual's eligibility for Medicaid.

(b) The nursing facility must make the refund within 30 days of:

(1) notification of eligibility for nursing home coverage;
(2) notification of correction of applied income (see also §19.2316(f) of this title (relating to Collection of Applied Income) which specifies procedures concerning applied income refunds at the time of discharge); or
(3) receipt of any vendor payment from DHS for any covered period.

(c) When the facility becomes aware of the need for a refund as indicated in subsection (a) of this section, facility staff must write to the resident or his responsible party, notifying him about his right to a refund and the amount due.

 

§19.411 Work

The resident has the right to:

(1) refuse to perform services for the facility; and
(2) perform services for the facility, if he chooses, when:

(A) the facility has documented the need or desire for work in the plan of care;
(B) the plan specifies the nature of the services performed and whether the services are voluntary or paid;
(C) compensation for paid services is at or above prevailing rates; and
(D) the resident agrees to the work arrangement described in the plan of care.

 

§19.412 Mail

The resident has the right to privacy in written communications, including the right to:
(1) send and receive mail promptly that is unopened;
(2) request facility staff to help open and read incoming mail and help address and post outgoing mail;
(3) have access to stationery, postage, and writing implements at the resident's own expense.

 

§19.413 Access and Visitation Rights

(a) A resident has the right to have access to, and the facility must provide immediate access to a resident to, the following:

(1) in Medicaid-certified facilities, a representative of the Secretary of Health and Human Services;
(2) a representative of the State of Texas;
(3) the resident's individual physician;
(4) the State Ombudsman;
(5) a certified ombudsman;
(6) a representative of the protection and advocacy system for individuals with intellectual or developmental disabilities established under the Developmental Disabilities Assistance and Bill of Rights Act, 42 USC Chapter 144, Subchapter I, Part C;
(7) a representative of the protection and advocacy system for individuals with mental illness established under the Protection and Advocacy for Mentally Ill Individuals Act, 42 USC Chapter 114, Subchapter I;
(8) subject to the resident's right to deny or withdraw consent at any time, immediate family or other relatives of the resident; and
(9) subject to reasonable restrictions and the resident's right to deny or withdraw consent at any time, others who are visiting with the consent of the resident.

(b) A facility must provide reasonable access to a resident by any entity or individual that provides health, social, legal, or other services to the resident, subject to the resident's right to deny or withdraw consent at any time.
(c) In accordance with the Older American Act, §712(b)(1)(A) and 45 CFR §1324.11(e)(2), a facility must allow:

(1) the State Ombudsman, a certified ombudsman, and an ombudsman intern to have:

(A) immediate, private, and unimpeded access to enter the facility at any time during the facility’s regular business hours or regular visiting hours;
(B) immediate, private, and unimpeded access to a resident; and
(C) immediate and unimpeded access to the name and contact information of a responsible party if the State Ombudsman, a certified ombudsman, or an ombudsman intern determines the information is needed to perform a function of the Ombudsman Program; and

(2) the State Ombudsman and a certified ombudsman to have immediate, private, and unimpeded access to enter the facility at a time other than regular business hours or visiting hours, if the State Ombudsman or a certified ombudsman determines access may be required by the circumstances to be investigated.

(d) A facility, in accordance with the Older American Act, §712(b)(1)(B) and 45 CFR §1324.11(e)(2), must allow the State Ombudsman and a certified ombudsman immediate access to:

(1) all files, records, and other information concerning a resident, including an incident report involving the resident, if:

(A) the State Ombudsman or certified ombudsman has the consent of the resident or legally authorized representative;
(B) the resident is unable to communicate consent to access and has no legally authorized representative; or
(C) such access is necessary to investigate a complaint and the following occurs:

(i) the resident’s legally authorized representative refuses to give consent to access the records, files, and other information;
(ii) the State Ombudsman or certified ombudsman has reasonable cause to believe that the legally authorized representative is not acting in the best interest of the resident; and
(iii) if it is a certified ombudsman seeking access to the records, files, or other information, the certified ombudsman obtains the approval of the State Ombudsman to access the records, files, or other information without the legally authorized representative’s consent; and

(2) the administrative records, policies, and documents of the facility to which the residents or general public have access.

(e) The rules adopted under the Health Insurance Portability and Accountability Act of 1996, 45 CFR Part 164, Subparts A and E, do not preclude a facility from releasing protected health information or other identifying information regarding a resident to the State Ombudsman or a certified ombudsman if the requirements of subsection (c)(1)(C) and (d)(1)(A), (B), or (C) of this section are met. The State Ombudsman and a certified ombudsman are each a “health oversight agency” as that phrase is defined in 45 CFR §164.501.

 

§19.414 Telephone

(a) The resident has the right to have reasonable access to the use of a telephone (other than a pay phone), where calls can be made without being overheard, and which can also be used for making calls to summon help in case of emergency.
(b) The facility must permit residents to contract for private telephones at their own expense. The facility must not require private telephones to be connected to a central switchboard.

 

§19.415 Postmortem Procedures

The facility must have policies regarding postmortem procedures, including soliciting and meeting the resident's or families' requests regarding notification of a death, disposition of possessions or personal property, and choice of funeral homes.

 

§19.416 Personal Property

The resident has the right to retain and use personal possessions, including some furnishings, and appropriate clothing as space permits, unless to do so would infringe upon the rights or health and safety of other residents. Reasons for any limitations are documented in the resident's clinical record. See §19.1921(i) of this title (relating to General Requirements for a Nursing Facility).

(1) If the resident dies, personal property must be transferred to the estate or the person designated by the resident.
(2) If it is donated or sold to the facility by the resident or estate, the transaction must be documented.
(3) If the resident dies and there is no responsible party, family, or legal guardian and no arrangements have been made for the disposition of property, the facility must dispose of property according to the Texas Property Code, Title 6, Chapter 71 (relating to Escheat of Property) and according to the Texas Probate Code, Chapter 10 (relating to Payment of Estates into State Treasury).

 

§19.417 Married Couples

The resident must be ensured privacy for visits with his spouse. The resident has the right to share a room with his spouse when married residents live in the same facility and both spouses consent to the arrangement.

 

§19.418 Self-Administration of Drugs

An individual may self-administer drugs if the interdisciplinary team, as defined in §19.802(b)(2) of this title (relating to Comprehensive Care Plans), has determined that this practice is safe.

 

§19.419 Advance Directives

(a) Competent adults may issue advance directives in accordance with applicable laws. An advance directive has the meaning as defined in Texas Health and Safety Code, §166.002.
(b) A facility must maintain policies and procedures implementing the following with respect to all adult residents:

(1) The facility must:

(A) maintain written policies regarding the implementation of advance directives; and
(B) include a clear and precise statement of any procedure the facility is unwilling or unable to provide or withhold in accordance with an advance directive.

(2) The facility must:

(A) when a resident is admitted, provide the resident or the appropriate person referenced in paragraph (8) of this subsection with a copy of:

(i) the advance care planning educational material provided by DADS;
(ii) the resident's rights under Texas law (whether statutory or as recognized by the courts of the state) to make decisions concerning medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate advance directives; and
(iii) the facility's policies respecting the implementation of these rights, including the written policies regarding the implementation of advance directives;

(B) within 14 days after the resident is admitted, orally review and discuss the information provided in accordance with subparagraph (A) of this paragraph and the importance of planning for end-of-life care with the resident or with the appropriate person referenced in paragraph (8) of this subsection; and
(C) annually and when there is a significant positive change or a significant deterioration in the resident's clinical condition, provide, review, and discuss the written information regarding advance directives listed in subparagraph (A) of this paragraph with the resident or with the appropriate person referenced in paragraph (8) of this subsection.

(3) The facility must document the oral discussion and the provision of the written information in the resident's clinical record. The facility must document in the resident's clinical record whether or not the resident has executed an advance directive.
(4) The facility must not condition the provision of care or otherwise discriminate against a resident based on whether or not the residen has executed an advance directive.
(5) The facility must ensure compliance with the requirements of Texas law, whether statutory or as recognized by the courts of Texas, respecting advance directives.
(6) The facility must provide, individually or with others, education for staff and the community on issues concerning advance directives. For the community, this may include newsletters, newspaper articles, local news reports, or commercials. For educating staff, this may include in-service programs.
(7) The facility must provide the attending physician, emergency medical technician, and hospital personnel with any information relating to a resident's known existing advance directive and assist with coordinating physicians' orders with the resident's known existing advance directive.
(8) Except as provided in paragraph (9) of this subsection, if a resident is in a comatose or otherwise incapacitated state, and therefore is unable to receive information or articulate whether the resident has executed an advance directive, the facility must provide, review, and discuss written information regarding advance directives, including advance care planning educational material provided by DADS and facility policies regarding the implementation of advance directives, in the following order of preference, to:

(A) the resident's legal guardian;
(B) a person responsible for the resident's health care decisions;
(C) the resident's spouse;
(D) the resident's adult child;
(E) the resident's parents; or
(F) the person admitting the resident.

(9) If a resident is in a comatose or otherwise incapacitated state, and therefore is unable to receive information or articulate whether the resident has executed an advance directive, and if the facility is unable, after diligent search, to locate a person listed under paragraph (8) of this subsection, the facility is not required to provide written information regarding advance directives. The facility must document in the resident's clinical record its attempts to make a diligent search.
(10) If a resident, who was incompetent or otherwise incapacitated and was unable to receive information regarding advance directives, including written policies regarding the implementation of advance directives, later becomes able to receive the information, the facility must provide, review, and discuss the written information at the time the resident becomes able to receive the information.
(11) If the resident or a relative, surrogate, or other concerned or related person presents the facility with a copy of the resident's advance directive, the facility must comply with the advance directive, including recognition of a Medical Power of Attorney, to the extent allowed under state law. If no one comes forward with a previously executed advance directive and the resident is incapacitated or otherwise unable to receive information or articulate whether he has executed an advance directive, the facility must document in the resident's clinical record that the resident was not able to receive information and was unable to communicate whether an advance directive existed.

(c) Failure to provide the facility's written policies as required in subsection (b)(2)(A)(iii) of this section when a resident is admitted will result in an administrative penalty of $500.
(d) A facility that provides services to children must ensure that:

(1) prior to admission to the facility, the primary physician, who has been providing care to the child, has discussed advance directives with the family or guardian and has provided documentation of this discussion to the facility; and
(2) the decision made by the family or guardian regarding advance directives is addressed in the comprehensive care plan (see §19.802 of this title (relating to Comprehensive Care Plans)).

 

§19.420 Documentation for the Delegation of Long-Term Care Resident's Rights

(a) The delegation of resident rights may occur in three cases:

(1) when a competent individual chooses to allow another to act for him, such as with a Durable Power of Attorney;
(2) when the resident has been adjudicated to be incompetent by a court of law and a guardian has been appointed; or
(3) when the physician has determined that, for medical reasons, the resident is incapable of understanding and exercising such rights. The Health and Safety Code, Chapter 313, Consent to Medical Treatment, provides guidance under certain circumstances when a resident is comatose, incapacitated, or otherwise mentally or physically incapable of communication.

(b) In order to assure preservation of rights, the physician and the facility must document specific information concerning the incapability of the resident to understand and exercise his rights.
(c) Facility documentation must cover:

(1) the relationship of the resident to the person assuming his rights and responsibilities;
(2) the authority allowing the responsible person to act for the resident;
(3) resident assessments, care plans, and progress notes that address the resident's inability to exercise his rights and responsibilities; and
(4) assurance that the resident who is mentally capable of understanding and exercising his rights, but physically incapable of doing so, receives interventions which facilitate the exercise of his rights.

(d) Physician documentation must cover:

(1) resident's comatose state, incapacity, or other mental or physical inability to communicate;
(2) proposed medical treatment or decision;
(3) periodic assurance that there has been no essential change in the resident's mental function; and
(4) reevaluation whenever a significant change in resident status occurs or for orders that impact on resident rights (such as "No CPR").

 

§19.421 Refusal of Certain Transfers in Medicaid-Certified Facilities

(a) An individual has the right to refuse a transfer to another room within the facility, if the purpose of the transfer is to relocate:

(1) a resident of a skilled nursing facility (SNF) from the distinct part of the facility that is an SNF to a part of the facility that is not an SNF, or
(2) a resident of a nursing facility from the distinct part of the facility that is a nursing facility to a distinct part of the facility that is an SNF.

(b) A resident's exercise of the right to refuse transfer under this section does not affect the individual's eligibility or entitlement to Medicaid benefits.

 

§19.422 Authorized Electronic Monitoring (AEM)

(a) A facility must permit a resident or the resident's guardian or legal representative to monitor the resident's room through the use of electronic monitoring devices.
(b) A facility may not refuse to admit an individual and may not discharge a resident because of a request to conduct authorized video monitoring.
(c) The Texas Department of Human Services (DHS) Information Regarding Authorized Electronic Monitoring form must be signed by or on behalf of all new residents upon admission. The form must be completed and signed by or on behalf of all current residents by July 1, 2003. A copy of the form must be maintained in the active portion of the resident's clinical record.
(d) A resident, or the resident's guardian or legal representative, who wishes to conduct AEM must request AEM by giving a completed, signed, and dated DHS Request for Authorized Electronic Monitoring form to the administrator or designee. A copy of the form must be maintained in the active portion of the resident's clinical record.

(1) If a resident has capacity to request AEM and has not been judicially declared to lack the required capacity, only the resident may request AEM, notwithstanding the terms of any durable power of attorney or similar instrument.
(2) If a resident has been judicially declared to lack the capacity required to request AEM, only the guardian of the resident may request AEM.
(3) If a resident does not have capacity to request AEM and has not been judicially declared to lack the required capacity, only the legal representative of the resident may request AEM.

(A) A resident's physician makes the determination regarding the capacity to request AEM. Documentation of the determination must be made in the resident's clinical record.
(B) When a resident's physician determines the resident lacks capacity to request AEM, a person from the following list, in order of priority, may act as the resident's legal representative for the limited purpose of requesting AEM:

(i) a person named in the resident's medical power of attorney or other advance directive;
(ii) the resident's spouse;
(iii) an adult child of the resident who has the waiver and consent of all other qualified adult children of the resident to act as the sole decision-maker; (iv) a majority of the resident's reasonably available adult children;
(v) the resident's parents; or
(vi) the individual clearly identified to act for the resident by the resident before the resident became incapacitated or the resident's nearest living relative. (e) A resident, or the resident's guardian or legal representative, who wishes to conduct AEM also must obtain the consent of other residents in the room, using the DHS Consent to Authorized Electronic Monitoring form. When complete, the form must be given to the administrator or designee. A copy of the form must be maintained in the active portion of the resident's clinical record.

(1) Consent to AEM may be given only by:

(A) the other resident or residents in the room;
(B) the guardian of the other resident, if the resident has been judicially declared to lack the required capacity; or
(C) the legal representative of the other resident, determined by following the same procedure established under (d)(3) of this section.

(2) Another resident in the room may condition consent on:

(A) pointing the camera away from the consenting resident, when the proposed electronic monitoring is a video surveillance camera; and
(B) limiting or prohibiting the use of an audio electronic monitoring device.

(3) AEM must be conducted in accordance with any limitation placed on the monitoring as a condition of the consent given by or on behalf of another resident in the room. The resident's roommate, their guardian, or legal representative assumes responsibility for assuring AEM is conducted according to the designated limitations.
(4) If AEM is being conducted in a resident's room, and another resident is moved into the room who has not yet consented to AEM, the monitoring must cease until the new resident, or the resident's guardian or legal representative, consents.

(f) When the completed Request for Authorized Electronic Monitoring form and the Consent to Authorized Electronic Monitoring form, if applicable, have been given to the administrator or designee, AEM may begin.

(1) Anyone conducting AEM must post and maintain a conspicuous notice at the entrance to the resident's room. The notice must state that the room is being monitored by an electronic monitoring device.
(2) The resident, or the resident's guardian or legal representative, must pay for all costs associated with conducting AEM, including installation in compliance with life safety and electrical codes, maintenance, removal of the equipment, posting and removal of the notice, or repair following removal of the equipment and notice, other than the cost of electricity.
(3) The facility must meet residents' requests to have a video camera obstructed to protect their dignity.
(4) The facility must make reasonable physical accommodation for AEM, which includes providing:

(A) a reasonably secure place to mount the video surveillance camera or other electronic monitoring device; and
(B) access to power sources for the video surveillance camera or other electronic monitoring device.

(g) All facilities, regardless of whether AEM is being conducted, must post an 8-inch by 11-inch notice at the main facility entrance. The notice must be entitled "Electronic Monitoring" and must state, in large, easy-to-read type, "The rooms of some residents may be monitored electronically by or on behalf of the residents. Monitoring may not be open and obvious in all cases."
(h) A facility may:

(1) require an electronic monitoring device to be installed in a manner that is safe for residents, employees, or visitors who may be moving about the room, and meets all local and state regulations;
(2) require AEM to be conducted in plain view;
(3) place a resident in a different room to accommodate a request for AEM.

(i) A facility may not discharge a resident because covert electronic monitoring is being conducted by or on behalf of a resident. If a facility discovers a covert electronic monitoring device and it is no longer covert as defined in §242.843, Health and Safety Code, the resident must meet all the requirements for AEM before monitoring is allowed to continue.

(j) DHS may assess an administrative penalty of $500 against a facility for each instance in which the facility:

(1) refuses to permit a resident, or the resident's guardian or legal representative, to conduct AEM;
(2) refuses to admit an individual or discharges a resident because of a request to conduct AEM;
(3) discharges a resident because covert electronic monitoring is being conducted by or on behalf of the resident; or
(4) violates any other provision related to AEM.

(k) All instances of abuse or neglect must be reported to DHS, as required by §19.602 of this title (relating to Incidents of Abuse and Neglect Reportable to the Texas Department of Human Services (DHS) by Facilities). For purposes of the duty to report abuse or neglect and the criminal penalty for the failure to report abuse or neglect, established under the Health and Safety Code, §242.122, the following apply:

(1) A person who is conducting electronic monitoring on behalf of a resident is considered to have viewed or listened to a tape or recording made by the electronic monitoring device on or before the 14th day after the date the tape or recording is made.
(2) If a resident, who has capacity to determine that the resident has been abused or neglected and who is conducting electronic monitoring, gives a tape or recording made by the electronic monitoring device to a person and directs the person to view or listen to the tape or recording to determine whether abuse or neglect has occurred, the person to whom the resident gives the tape or recording is considered to have viewed or listened to the tape or recording on or before the seventh day after the date the person receives the tape or recording.
(3) A person is required to report abuse based on the person's viewing of or listening to a tape or recording only if the incident of abuse is acquired on the tape or recording. A person is required to report neglect based on the person's viewing of or listening to a tape or recording only if it is clear from viewing or listening to the tape or recording that neglect has occurred.
(4) If abuse or neglect of the resident is reported to the facility and the facility requests a copy of any relevant tape or recording made by an electronic monitoring device, the person who possesses the tape or recording must provide the facility with a copy at the facility's expense. The cost of the copy must not exceed the community standard. If the contents of the tape or recording are transferred from the original technological format, a qualified professional must do the transfer.
(5) A person who sends more than one tape or recording to DHS must identify each tape or recording on which the person believes an incident of abuse or evidence of neglect may be found. Tapes or recordings should identify the place on the tape or recording that an incident of abuse or evidence of neglect may be found.

 

§19.423 Model Drug Testing Policy

The Texas Department of Human Services (DHS) is required to provide a model drug testing policy to nursing facilities under the Health and Safety Code, §242.050. A nursing facility is not required to perform drug testing on its employees or applicants for employment. Although this policy only covers drugs, coverage of alcohol may be added. Before implementing any drug testing policy, including the following model policy, DHS recommends that a facility discuss the policy with its attorney.
(1) Policy.

(A) (NURSING FACILITY NAME) has a vital interest in maintaining a safe, healthy, and efficient working environment. Being under the influence of a drug on the job poses serious safety and health risks to the user, co-workers, and residents. The use, sale, purchase, transfer, or possession of an illegal drug in the workplace poses unacceptable risks for safe, healthy, and efficient operations.
(B) (NURSING FACILITY NAME) has the obligation to maintain a safe, healthy and efficient workplace for all of its employees and residents, and to protect the facility's property, information, equipment, operations, and reputation.
(C) (NURSING FACILITY NAME) recognizes its obligation to its residents to provide services that are free of the influence of illegal drugs and endeavors through this policy to provide drug-free services.
(D) (NURSING FACILITY NAME) complies with federal and state rules, regulations, or laws that relate to the maintenance of a workplace free from illegal drugs.
(E) All employees are required to abide by the terms of this policy and to notify management of any criminal drug statute conviction for a violation that occurred in the workplace no later than five days after such conviction.

(2) Purpose. This policy outlines the goals and objectives of (NURSING FACILITY NAME'S) drug testing program and provides guidance to supervisors and employees concerning their responsibilities for carrying out the program.
(3) Scope. This policy applies to all departments, all employees, and all job applicants. The term employee includes contracted employees.
(4) Definitions. The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.

(A) Facility premises — All property of (NURSING FACILITY NAME) including, but not limited to, the offices, facilities, and surrounding areas on (NURSING FACILITY NAME)-owned or -leased property, parking lots, and storage areas. The term also includes (NURSING FACILITY NAME)-owned or -leased vehicles and equipment.
(B) Drug testing — The scientific analysis of urine, blood, breath, saliva, hair, tissue, and other specimens for detecting a drug.
(C) Illegal drug — Any drug that is not legally obtainable. Examples of illegal drugs are marijuana, cocaine, heroin, methamphetamines, and phencyclidine (PCP).
(D) Legal drug — Any prescribed drug or over-the-counter drug that has been legally obtained and is being used for the purpose for which it was prescribed or manufactured.
(E) Reasonable belief — A belief based on facts sufficient to lead a prudent person to conclude that a particular employee is unable to perform his or her job duties due to drug impairment. Such inability to perform may include, but not be limited to, decreases in the quality or quantity of the employee's productivity, judgment, reasoning, concentration and psychomotor control, and marked changes in behavior. Accidents, deviations from safe working practices, and erratic conduct indicative of impairment are examples of "reasonable belief" situations.
(F) Under the influence — A condition in which a person is affected by a drug in any detectable manner. The symptoms of influence are not confined to those consistent with misbehavior or to obvious impairment of physical or mental ability, such as slurred speech or difficulty in maintaining balance. A determination of being under the influence can be established by a professional opinion; a scientifically valid test, such as urinalysis or blood analysis; and in some cases by the opinion of a layperson.

(5) Education.

(A) Management personnel are to be trained to:

(i) detect the signs and behavior of employees who may be using drugs in violation of this policy; and
(ii) intervene in situations that may involve violations of this policy.

(B) Employees are to be informed of the provisions of this policy.

(6) Prohibited activities.

(A) Legal drugs. (NURSING FACILITY NAME) reserves the right at all times to judge the effect that a legal drug may have on an employee's job performance and to restrict the employee's work activity or presence at the workplace accordingly.
(B) Illegal drugs. The use, sale, purchase, transfer, or possession of an illegal drug by any employee while on (NURSING FACILITY NAME) premises or while performing (NURSING FACILITY NAME) business is prohibited.

(7) Discipline.

(A) Any employee who possesses, distributes, sells, attempts to sell, or transfers illegal drugs on (NURSING FACILITY NAME) premises or while on (NURSING FACILITY NAME) business will be subject to immediate discharge.
(B) Any employee found through drug testing to have in his or her body a detectable amount of an illegal drug will be subject to discipline up to and including discharge. An employee may be offered a one-time opportunity to enter and successfully complete a rehabilitation program, approved by (NURSING FACILITY NAME), at the employee's expense. During rehabilitation, the employee will be subject to unannounced drug testing. Upon return to work from rehabilitation, the employee may be subject to unannounced drug testing at (NURSING FACILITY NAME) expense for a period of 12 months. Any employee whose test is confirmed as positive during or following rehabilitation will be subjected to immediate discharge.

(8) Drug testing for job applicants.

(A) All applicants for employment, including applicants for part-time and seasonal positions and applicants who are former employees, are subject to drug testing.
(B) If an applicant refuses to take a drug test, or if evidence of the use of illegal drugs by an applicant is discovered, either through testing or other means, the pre-employment process will be terminated.
(C) An applicant must pass the drug test to be considered for employment.
(D) An applicant will be provided written notice of this policy and, by signature, will be required to acknowledge receipt and understanding of the policy before being tested.

(9) Drug testing of employees.

(A) (NURSING FACILITY NAME) will notify employees of this policy by:

(i) providing them with a copy of the policy and obtaining written acknowledgement that the policy has been received and read.
(ii) announcing the policy in written communications and making presentations at employee meetings.

(B) (NURSING FACILITY NAME) will perform drug testing:

(i) of any employee who exhibits "reasonable belief" behavior;
(ii) of each employee who has direct contact with residents annually;
(iii) of any employee who is subject to drug testing pursuant to federal or state rules, regulations, or laws;
(iv) on a random basis of any employee.

(C) An employee's consent to submit to drug testing is required as a condition of employment and the employee's refusal to consent may result in disciplinary action, including discharge, for a first refusal or any subsequent refusal.
(D) An employee who is tested in a "reasonable belief" situation may be suspended pending receipt of written test results and inquiries that may be required.

(10) Appeal of a drug test result.

(A) An applicant or employee whose drug test was positive will have an opportunity to explain why the positive finding could have resulted from a cause other than drug use. (NURSING FACILITY NAME) will judge whether the employee's explanation merits further inquiry.
(B) An applicant or employee whose drug test is reported positive will be offered the opportunity to:

(i) obtain and independently test, at their expense, the remaining portion of the urine specimen that yielded the positive result; and
(ii) obtain the written test result and submit it to an independent medical review, at their expense.

(C) During an appeal and any resulting inquiries, the pre-employment selection process for an applicant will be placed on hold, and the employment status of an employee may be suspended. An employee who is suspended pending appeal may use any available annual leave to remain in an active pay status. If the employee has no annual leave or chooses not to use it, the suspension will be without pay.

(11) Confidentiality. All information related to drug testing or the identification of persons as users of drugs will be protected by (NURSING FACILITY NAME) as confidential unless otherwise required by law or overriding public health and safety concerns, or authorized in writing by the persons in question.

 

§19.424 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 legal guardian 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 comprehensive care plan; and

(4) the facility receives written authorization, signed by the resident or the resident's legal guardian, 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 comprehensive care plan; or

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

NFRLMC, Subchapter F, Admission, Transfer, and Discharge Rights in Medicaid-Certified Facilities

Revision 18-3

 

§19.501 Admissions Policy for Medicaid-Certified Facilities

(a) The facility must not require:

(1) residents or potential residents to waive their rights to Medicare or Medicaid; and
(2) oral or written assurance that residents or potential residents are not eligible for, or will not apply for, Medicare or Medicaid benefits.

(b) The facility must not require a third-party guarantee of payment to the facility as a condition of admission or expedited admission, or continued stay in the facility. However, the facility may require an individual who has legal access to a resident's income or resources available to pay for facility care to sign a contract, without incurring personal financial liability, to provide facility payment from the resident's income or resources.
(c) In the case of a person eligible for Medicaid, a nursing facility must not charge, solicit, accept, or receive, in addition to any amount otherwise required to be paid under the State Plan, any gift, money, donation, or other consideration as a precondition of admission, expedited admission, or continued stay in the facility. However, a nursing facility may:

(1) charge a resident who is eligible for Medicaid for items and services the resident has requested and received, and that are not specified in the State Plan as included in the term "nursing facility services" so long as the facility gives proper notice of the availability and cost of these services to residents and does not condition the resident's admission or continued stay on the request for and receipt of these additional services; and
(2) solicit, accept, or receive a charitable, religious, or philanthropic contribution from an organization or from a person unrelated to a Medicaid-eligible resident or potential resident, but only to the extent that the contribution is not a condition of admission, expedited admission, or continued stay in the facility for a Medicaid-eligible resident.

 

§19.502 Transfer and Discharge in Medicaid-Certified Facilities

(a) Definition. Transfer and discharge includes movement of a resident to a bed outside the certified facility, whether that bed is in the same physical plant or not. Transfer and discharge does not refer to movement within the same certified facility.
(b) Transfer and discharge requirements. The facility must permit each resident to remain in the facility and must not transfer or discharge the resident from the facility unless:

(1) the transfer or discharge is necessary for the resident's welfare, and the resident's needs cannot be met in the facility;
(2) the transfer or discharge is appropriate because the resident's health has improved sufficiently so the resident no longer needs the services provided by the facility;
(3) the safety of individuals in the facility is endangered;
(4) the health of other individuals in the facility would otherwise be endangered;
(5) the resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) a stay at the facility. For a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid;
(6) the resident, responsible party, or family or legal representative requests a voluntary transfer or discharge; or
(7) the facility ceases to operate as a nursing facility and no longer provides resident care.

 

(c) Documentation. When the facility transfers or discharges a resident under any of the circumstances specified in subsection (b)(1) - (5) of this section, the resident's clinical record must be documented. The documentation must be made by:

 

(1) the resident's physician when transfer or discharge is necessary under subsection (b)(1) or (2) of this section; and
(2) a physician when transfer or discharge is necessary under subsection (b)(4) of this section.

(d) Notice before transfer or discharge. Before a facility transfers or discharges a resident, the facility must:

(1) notify the resident and, if known, a responsible party or family or legal representative of the resident about the transfer or discharge and the reasons for the move in writing and in a language the resident understands;
(2)record the reasons in the resident's clinical record;
(3) include in the notice the items described in subsection (f) of this section; and
(4) comply with §19.2310 of this chapter (relating to Nursing Facility Ceases to Participate) when the facility voluntarily withdraws from Medicaid or Medicare or is terminated from Medicaid or Medicare participation by HHSC or the secretary.

(e) Timing of the notice.

(1) Except when specified in paragraph (3) of this subsection or in §19.2310 of this chapter, the notice of transfer or discharge required under subsection (d) of this section must be made by the facility at least 30 days before the resident is transferred or discharged.
(2) The requirements described in paragraph (1) of this subsection and subsection (g) of this section do not have to be met if the resident, responsible party, or family or legal representative requests the transfer or discharge.
(3) Notice may be made as soon as practicable before transfer or discharge when:

(A) the safety of individuals in the facility would be endangered, as specified in subsection (b)(3) of this section;
(B) the health of individuals in the facility would be endangered, as specified in subsection (b)(4) of this section;
(C) the resident's health improves sufficiently to allow a more immediate transfer or discharge, as specified in subsection (b)(2) of this section;
(D) the transfer and discharge is necessary for the resident's welfare because the resident's needs cannot be met in the facility, as specified in subsection (b)(1) of this section, and the resident's urgent medical needs require an immediate transfer or discharge; or
(E) a resident has not resided in the facility for 30 days

(4) When an immediate involuntary transfer or discharge as specified in subsection (b)(3) or (4) of this section, is contemplated, unless the discharge is to a hospital, the facility must:

(A) immediately call the staff of the state office Consumer Rights and Services section of HHSC to report its intention to discharge; and
(B) submit to HHSC the required physician documentation regarding the discharge.

(f) Contents of the notice. For nursing facilities, the written notice specified in subsection (d) of this section must include the following:

(1) the reason for transfer or discharge;
(2) the effective date of transfer or discharge;
(3) the location to which the resident is transferred or discharged;
(4) a statement that the resident has the right to appeal the action as outlined in HHSC's Fair Hearings, Fraud, and Civil Rights Handbook by requesting a hearing through the Medicaid eligibility worker at the local HHSC office within 10 days;
(5) the name, address, and telephone number of the managing local ombudsman, and the toll-free number of the Ombudsman Program;
(6) in the case of a resident with mental illness, the address and phone number of the state mental health authority; and
(7) in the case of a resident with an intellectual or developmental disability, the authority for individuals with intellectual and developmental disabilities, and the phone number of the agency responsible for the protection and advocacy of individuals with intellectual and developmental disabilities.

(g) Orientation for transfer or discharge. A facility must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility.

(h) Notice of relocation to another room. Except in an emergency, the facility must notify the resident and either the responsible party or the family or legal representative at least five days before relocation of the resident to another room within the facility. The facility must prepare a written notice which contains:

(1) the reasons for the relocation;
(2) the effective date of the relocation; and
(3) the room to which the facility is relocating the resident.

(i) Fair hearings.

(1) Individuals who receive a discharge notice from a facility have 90 days to appeal. If the recipient appeals before the discharge date, the facility must allow the resident to remain in the facility, except in the circumstances described in subsections (b)(5) and (e)(3) of this section, until the hearing officer makes a final determination. Vendor payments and eligibility will continue until the hearing officer makes a final determination. If the recipient has left the facility, Medicaid eligibility will remain in effect until the hearing officer makes a final determination.
(2) When the hearing officer determines that the discharge was inappropriate, the facility, upon written notification by the hearing officer, must readmit the resident immediately, or to the next available bed. If the discharge has not yet taken place, and the hearing officer finds that the discharge will be inappropriate, the facility, upon written notification by the hearing officer, must allow the resident to remain in the facility. The hearing officer will also report the findings to HHSC Long-Term Care Regulatory Services Division for investigation of possible noncompliance.
(3) When the hearing officer determines that the discharge is appropriate, the resident is notified in writing of this decision. Any payments made on behalf of the recipient past the date of discharge or decision, whichever is later, must be recouped.

(j) Discharge of married residents. If two residents in a facility are married and the facility proposes to discharge one spouse to another facility, the facility must give the other spouse notice of his right to be discharged to the same facility. If the spouse notifies a facility, in writing, that he wishes to be discharged to another facility, the facility must discharge both spouses on the same day, pending availability of accommodations.

 

§19.503 Notice of Bed-Hold Policy and Readmission in Medicaid-Certified Facilities

(a) Notice before transfer. Before a nursing facility transfers a resident to a hospital or allows a resident to go on therapeutic leave, the nursing facility must provide written information to the resident and a family member or legal representative that specifies:

 

(1) the duration of the bed-hold policy under the Medicaid State Plan (see §19.2603 of this title (relating to Therapeutic Home Visits Away from the Facility) if any, during which the resident is permitted to return and resume residence in the facility; and
(2) the facility's policies regarding bed-hold periods, which must be consistent with subsection (c) of this section, permitting a resident to return.

(b) Bed-hold notice upon transfer. At the time of transfer of a resident to a hospital or for therapeutic leave, a nursing facility must provide to the resident and a family member or legal representative, written notice which specifies the duration of the bed-hold policy described in subsection (a) of this section.
(c) Permitting resident to return to facility. A nursing facility must establish and follow a written policy under which a resident whose hospitalization or therapeutic leave exceeds the bed-hold period under the State Plan, is readmitted to the facility immediately upon the first availability of a bed in a semi-private room if the resident:

(1) requires the services provided by the facility; and
(2) is eligible for Medicaid nursing facility services.

(d) Bed-hold charges. The facility may enter into a written agreement with the recipient or responsible party to reserve a bed.

(1) The facility may charge the recipient an amount not to exceed the DHS daily vendor rate according to the recipient's classification at the time the individual leaves the facility.
(2) The facility must document all bed-hold charges in the recipient's financial record at the time the bed-hold reservation services were provided.
(3) The facility may not charge a bed-hold fee if the Texas Department of Human Services (DHS) is paying for the same period of time, as in a three-day therapeutic home visit.

 

§19.504 Equal Access to Quality Care in Medicaid-Certified Facilities

(a) A facility must establish and maintain identical policies and practices regarding transfer, discharge, and the provision of services under the Medicaid State Plan for all individuals regardless of source of payment.
(b) The facility may charge any amount for services furnished to non-Medicaid residents consistent with the notice requirement in §19.403(h) and (i) of this title (relating to Notice of Rights and Services).
(c) The Texas Department of Human Services is not required to offer additional services on behalf of a recipient other than services provided in the State Plan.

 

§19.505 Discharge Planning in Medicaid-Certified Facilities

Discharge planning must be done by appropriate facility staff in accordance with the provisions outlined in §19.803 of this title (relating to Discharge Summary (Discharge Plan of Care)).

NFRLMC Subchapter G, Resident Behavior and Facility Practice

 

 

Revision 13-3

 

§19.601 Resident Behavior and Facility Practice

 

(a) Restraints. The resident has the right to be free from any physical or chemical restraints imposed for purposes of discipline or convenience, and not required to treat the resident's medical symptoms.

(1) If physical restraints are used because they are required to treat the resident's medical condition, the restraints must be released and the resident repositioned as needed to prevent deterioration in the resident's condition. Residents must be monitored hourly and, at a minimum, restraints must be released every two hours for a minimum of 10 minutes, and the resident repositioned.
(2) A facility must not administer to a resident a restraint that:

(A) obstructs the resident's airway, including a procedure that places anything in, on, or over the resident's mouth or nose;
(B) impairs the resident's breathing by putting pressure on the resident's torso;
(C) interferes with the resident's ability to communicate; or
(D) places the resident in a prone or supine hold.

(3) A behavioral emergency is 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) could not reasonably have been anticipated; and
(D) is not addressed in the resident's comprehensive care plan.

(4) If restraint is used in a behavioral emergency, the facility must use only an acceptable restraint hold. An acceptable restraint hold is a 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 paragraph (2) of this subsection.
(5) A staff person may use a restraint hold only for the shortest period of time necessary to ensure the protection of the resident or others in a behavioral emergency.
(6) A facility may adopt policies that allow less use of restraint than allowed by the rules of this chapter.
(7) Use of restraints and their release must be documented in the clinical record.

(b) Abuse. The resident has the right to be free from verbal, sexual, physical and mental abuse, corporal punishment, and involuntary seclusion.
(c) Staff treatment of residents. The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents, and misappropriation of residents' property.

(1) The facility must:

(A) not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion; and
(B) not employ individuals who have:

(i) been found guilty of abusing, neglecting, or mistreating residents by a court of law, or
(ii) had a finding entered into the state nurse aide registry concerning abuse, neglect, mistreatment of residents, or misappropriation of their property; or
(iii) been convicted of any crime contained in §250.006, Health and Safety Code; and (C) report any knowledge it has of actions by a court of law against an employee, which would indicate unfitness for service as a nurse aide or other staff to the state nurse aide registry or licensing authority.

(2) The facility must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, and misappropriation of resident property, are reported immediately to the administrator of the facility and to other officials in accordance with Texas law through established procedures (see §19.602 of this title (relating to Incidents of Abuse and Neglect Reportable to the Texas Department of Human Services and Law Enforcement Agencies by Facilities)).
(3) The facility must have evidence that all alleged violations are thoroughly investigated and must prevent further potential abuse while the investigation is in progress.
(4) The results of all investigations must be reported to the administrator or his designated representative and to other officials in accordance with Texas law (including to the state survey and certification agency) within five workdays of the incident, and if the alleged violation is verified, appropriate corrective action must be taken.

 

§19.602 Incidents of Abuse and Neglect Reportable to the (DADS) and Law Enforcement Agencies by Facilities

 

(a) A facility owner or employee who has cause to believe that the physical or mental health or welfare of a resident has been or may be adversely affected by abuse, neglect, or exploitation caused by another person must report the abuse, neglect, or exploitation.
(b) Reports described in subsection (a) of this section must be made to DADS at 1-800-458-9858 and written reports must be sent to: DADS Consumer Rights and Services, P.O. Box 14930, Austin, Texas 78714-9030.

(1) The person reporting must make the telephone report immediately on learning of the alleged abuse, neglect, exploitation, conduct, or conditions. The person must send a written report to DADS Consumer Rights and Services within five days after the telephone report.
(2) The facility must conduct an investigation of the reported act(s). The facility must send a written report of the investigation to DADS no later than the fifth working day after the oral report.

(c) As a condition of employment an employee of a facility must sign a statement that states:

(1) the employee may be criminally liable for failure to report abuses; and
(2)under the Texas Health and Safety Code, Title 4, §260A.14, the employee has a cause of action against a facility, its owner(s) or employee(s) if he is suspended, terminated, disciplined, or discriminated or retaliated against as a result of:

(A)reporting to the employee's supervisor, the administrator, DADS, or a law enforcement agency a violation of law, including a violation of laws or regulations regarding nursing facilities;
(B)for initiating or cooperating in any investigation or proceeding of a governmental entity relating to care, services, or conditions at the nursing facility.

 

 

(d) The statements described in subsection (c) of this section must be available for inspection by DADS.
(e) A local or state law enforcement agency must be notified of reports described in subsection (a) of this section that allege that:

(1) a resident’s health or safety is in imminent danger;
(2) a resident has recently died because of conduct alleged in the report of abuse or neglect or other complaint;
(3) a resident has been hospitalized or treated in an emergency room because of conduct alleged in the report of abuse or neglect or other complaint;
(4)a resident has been a victim of any act or attempted act described in the Penal Code, §§21.02, 21.11, 22.011, or 22.021; or
(5) a resident has suffered bodily injury, as that term is defined in the Penal Code, §1.07, because of conduct alleged in the report of abuse or neglect or other complaint.

 

§19.604 Complaint Investigation

 

(a) A complaint is any allegation received by the Texas Department of Human Services (DHS) other than an incident reported by facility staff. These allegations include, but are not limited to, abuse, neglect, exploitation, or violation of state or federal standards.
(b) DHS will furnish the facility with a notification of the complaint received and a summary of the complaint, without identifying the source of the complaint.

 

§19.606 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 facility to a hospital who expire within 24 hours after transfer.
(b) The facility must submit to DHS a standard DHS form within 10 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, §242.134; however, licensed facilities must make available historical statistics provided to them by DHS and must provide the statistics, if requested, to 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 among the elderly and in specific facilities and makes this information available to the public upon request.

NFRLMC Subchapter H, Quality of Life

 

 

Revision 08-4

§19.701 Quality of Life

A facility must care for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident's quality of life. If children are admitted to a facility, care must be provided to meet their unique medical and developmental needs.

(1) Dignity. The facility must promote care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of the resident's individuality.

(2) Self-determination and participation. The resident has the right to:

(A) choose activities, schedules, and health care consistent with the resident's interests, assessments, and plans of care;

(B) interact with members of the community both inside and outside of the facility; and

(C) make choices about aspects of the resident's life in the facility that are significant to the resident.

(3) Participation in other activities. A resident has the right to participate in social, religious, and community activities that do not interfere with the rights of other residents in the facility.

(4) Accommodation of needs. A resident has the right to:

(A) reside and receive services in the facility with reasonable accommodation of individual needs and preferences, except when the health or safety of the individual or other residents would be endangered; and

(B) receive notice before the resident's room or roommate in the facility is changed.

(5) Accommodations for Children. Pediatric residents should be matched with roommates of similar age and developmental levels.

 

§19.702 Activities

 

(a) The facility must provide for an ongoing program of activities designed to meet, in accordance with the comprehensive assessment, the interest and the physical, mental, and psychosocial well-being of each resident.

(b) The activities program must be directed by a qualified professional who:

(1) is a qualified therapeutic recreation specialist or an activities professional who is:

(A) licensed or registered, if applicable, by the state in which practicing; and

(B) eligible for certification as a therapeutic recreation specialist, therapeutic recreation assistant, or an activities professional by a recognized accrediting body, such as the National Council for Therapeutic Recreation Certification, on October 1, 1990; or

(2) has two years of experience in a social or recreational program within the last five years, one of which was full-time in a patient activities program in a health care setting; or

(3) is a qualified occupational therapist or occupational therapy assistant; or

(4) has completed an activity director training course approved by any state. The Texas Department of Human Services (DHS) does not review or approve any courses. DHS accepts training courses approved by a recognized credentialing body, such as the National Certification Council for Activity Professionals, the National Therapeutic Recreation Society, or the Consortium for Therapeutic Recreation/Activities Certification, Inc.

(c) Activity directors must complete eight hours of approved continuing education or equivalent continuing education units each year. Approval bodies include organizations or associations recognized as such by certified therapeutic recreation specialists or certified activity professionals or registered occupational therapists.

(d) The facility must ensure that activities assessment and care planning are completed and reviewed or updated as provided in §19.801 and §19.802 of this title (relating to Resident Assessment and Comprehensive Care Plans). If indicated by the Resident Assessment Instrument (RAI) and/or the resident's need, an in-depth activities assessment is required.

(e) Toys and recreational equipment for pediatric residents must be appropriate for the size, age, and developmental level of the residents.

 

§19.703 Social Services General Requirements

 

(a) The facility must provide medically-related social services to attain the highest practicable physical, mental, or psychosocial well-being of each resident. See also §19.901 of this title (relating to Quality of Care) for information concerning psychosocial functioning.

(1) A facility with more than 120 beds must employ a qualified social worker on a full-time basis.

(2) A facility of 120 beds or less must employ or contract with a qualified social worker (or in lieu thereof, a social worker who is licensed by the Texas State Board of Social Work Examiners as prescribed by the Human Resources Code, Chapter 50, §50.016(a)), and who meets the requirements of subsection (b)(2) of this section) to provide social services a sufficient amount of time to meet the needs of the residents.

(b) A qualified social worker is an individual who is licensed, including a temporary or provisional license, by the Texas State Board of Social Work Examiners as prescribed by Chapter 50 of the Human Resources Code, and who has at least:

(1) a bachelor's degree in social work, or a bachelor's degree in a human services field, including, but not limited to, sociology, special education, rehabilitation counseling, and psychology; and

(2) one year of supervised social work experience in a health care setting working directly with individuals.

 

§19.704 Social Services Process

 

(a) The facility must ensure that psychosocial assessment and care planning are completed and reviewed or updated as provided in §19.801 and §19.802 of this title (relating to Resident Assessment and Comprehensive Care Plans).

(b) If indicated by the Resident Assessment Instrument (RAI) and/or the resident's need, an in-depth psycho-social assessment is required. The social service needs of each resident must be identified and addressed by the direct provision of services or by arranging access to services.

 

§19.705 Environment

 

The facility must provide:

(1) a safe, clean, comfortable, and homelike environment, allowing the resident to use his personal belongings to the extent possible;

(2) housekeeping and maintenance services necessary to maintain a sanitary, orderly and comfortable interior;

(3) clean bed and bath linen that are in good condition;

(4) private closet space in each resident room;

(5) adequate and comfortable lighting levels in all areas (see §19.1721 of this title (relating to Lighting and Illumination);

(6) comfortable and safe temperature levels. Facilities initially licensed or certified after October 1, 1990, must maintain temperature ranges of 71 - 81 degrees Fahrenheit; and

(7) for the maintenance of comfortable sound levels.

 

§19.706 Resident Group and Family Council

 

(a) A resident has the right to organize and participate in resident groups in a facility.

(b) A facility must assist residents who require assistance to attend resident group meetings.

(c) A resident's family has the right to meet in the facility with the families of other residents in the facility and organize a family council. A family council may:

(1) make recommendations to the facility proposing policy and operational decisions affecting resident care and quality of life; and

(2) promote educational programs and projects intended to promote the health and happiness of residents.

(d) If a resident group or family council exists, a facility must:

(1) listen to and consider the views and act upon the grievances and recommendations of residents and families concerning proposed policy and operational decisions affecting resident care and life in the facility;

(2) provide a resident group or family council with private space;

(3) provide a designated staff person responsible for providing assistance and responding to written requests that result from resident group and family council meetings; and

(4) allow staff or visitors to attend meetings at the resident group's or family council’s invitation.

(e) If a family council exists, a facility must:

(1) upon written request, allow the family council to meet in a common meeting room of the facility at least once a month during hours mutually agreed upon by the family council and the facility;

(2) provide the family council with adequate space on a prominent bulletin board to post notices and other information;

(3) designate a staff person to act as the family council's liaison to the facility;

(4) respond in writing to written requests by the family council within five working days;

(5) include information about the existence of the family council in a mailing that occurs at least semiannually; and

(6) permit a representative of the family council to discuss concerns with an individual conducting an inspection or survey of the facility.

(f) Unless the resident objects, a family council member may authorize, in writing, another member to visit and observe a resident represented by the authorizing member.

(g) A facility must not limit the rights of a resident, a resident's family member, or a family council member to meet with an outside person, including:

(1) an employee of the facility during the employee's nonworking hours if the employee agrees; or

(2) a member of a nonprofit or government organization.

(h) A facility must not:

(1) terminate an existing family council;

(2) prevent or interfere with the family council from receiving outside correspondence addressed to the family council or open family council mail; or

(3) willfully interfere with the formation, maintenance, or operation of a family council, including interfering by:

(A) denying a family council the opportunity to accept help from an outside person;

(B) discriminating or retaliating against a family council participant; or

(C) willfully scheduling events in conflict with previously scheduled family council meetings, if the facility has other scheduling options.

 

NFRLMC, Subchapter I, Resident Assessment

Revision 15-3

 

§19.801 Resident Assessment

 

A facility must conduct, initially and periodically, a comprehensive, accurate, standardized, reproducible assessment of a resident's functional capacity. The facility must electronically transmit to CMS resident-entry-and-death-in-facility tracking records required by the RAI; and OBRA assessments, including admission, annual, quarterly, significant change, significant correction, and discharge assessments.
(1) Admission orders. At the time a resident is admitted, the facility must have physician orders for the resident's immediate care.
(2) Comprehensive assessments.

(A) A facility must make a comprehensive assessment of a resident's needs, using the current RAI process, including the MDS, Care Area Assessment process, and the Utilization Guidelines specified by DADS and approved by CMS. The current RAI process is found in the MDS 3.0 manual posted by CMS on http://www.cms.gov.
(B) A facility must conduct an additional assessment and document the summary information if the MDS indicates an additional assessment on a care area is required.
(C) A facility must conduct a comprehensive assessment of a resident as follows:

(i) within 14 calendar days after admission, excluding readmissions in which there is no significant change in the resident's physical or mental condition. For purposes of this section, "readmission" means a return to the facility following a temporary absence for hospitalization or for therapeutic leave.
(ii) within 14 calendar days after the facility determines, or should have determined, that there has been a significant change in the resident's physical or mental condition. For purposes of this section, a "significant change" means a major decline or improvement in the resident's status that will not normally resolve itself without further intervention by staff or by implementing standard disease-related clinical interventions, that has an impact on more than one area of the resident's health status, and requires interdisciplinary review or revision of the care plan, or both.
(iii) not less often than once every 12 months.

(3) Quarterly review assessment. A facility must assess a resident using the quarterly review instrument specified by DADS and approved by CMS not less frequently than once every three months.
(4) Use. A facility must maintain all resident assessments completed within the previous 15 months in the resident's active record and use the results of the assessments to develop, review, and revise the resident's comprehensive plan of care as specified in §19.802 of this subchapter (relating to Comprehensive Care Plans).
(5) PASRR. A Medicaid-certified facility must coordinate assessments with the PASSR process in 42 CFR, Part 483, Subpart C to the maximum extent practicable to avoid duplicative testing and effort.
(6) Automated data processing requirement.

(A) A facility must complete an MDS for a resident. The facility must enter MDS data into the facility's assessment software within 7 days after completing the MDS and electronically transmit the MDS data to CMS within 14 days after completing the MDS.
(B) A facility must complete the Long Term Care Medicaid Information form on an OBRA assessment that is submitted to the state Medicaid claims system for a Medicaid recipient or Medicaid applicant according to DADS instructions located on the Texas Medicaid Healthcare Partnership Long Term Care Portal at http://www.tmhp.com.
(C) Data format. The facility must transmit MDS data to CMS in the format specified by CMS and DADS.
(D) Information concerning a resident is confidential and a facility must not release information concerning a resident except as allowed by this chapter, including §19.407 of this chapter (relating to Privacy and Confidentiality) and §19.1910(d) of this chapter (relating to Clinical Records).

(7) Accuracy of assessments. The assessment must accurately reflect the resident's status.
(8) Coordination. A registered nurse must conduct or coordinate each assessment with the appropriate participation of health professionals.
(9) Certification.

(A) A registered nurse must sign and certify that the assessment is completed.
(B) Each individual who completes a portion of the assessment must sign and certify the accuracy of that portion of the assessment.

(10) Penalty for falsification under Medicare and Medicaid.

(A) An individual who willfully and knowingly:

(i) certifies a material and false statement in a resident assessment is subject to a civil money penalty of not more than $1,000 for each assessment; or
(ii) causes another individual to certify a material and false statement in a resident assessment is subject to a civil money penalty of not more than $5,000 for each assessment. (B) Clinical disagreement does not constitute a material and false statement.

(11) Use of independent assessors in Medicaid-certified facilities and dually certified facilities. If DADS determines, under a certification survey or otherwise, that there has been a knowing and willful certification of false statements under paragraph (10) of this section, DADS may require (for a period specified by DADS) individuals who are independent of the facility and who are approved by DADS to conduct and certify the resident assessments under this section.
(12) Pediatric resident assessment.

(A) A facility must ensure that a pediatric assessment:

(i) is performed by a licensed health professional experienced in the care and assessment of children;
(ii) includes parents or guardians in the assessment process; and
(iii) includes a discussion with a parent or guardian about the potential for community transition.

(B) The clinical record of a child must include a record of immunizations, blood screening for lead, and developmental assessment. The local school district's developmental assessment may be used if available. See §19.1934 of this chapter (relating to Educational Requirements for Persons Under Age 22).
(C) A licensed health professional must assess a child's functional status in relation to pediatric developmental levels, rather than adult developmental levels.
(D) A facility must ensure pediatric residents receive services in accordance with the guidelines established by the Department of State Health Services' Texas Health Steps (THSteps). For Medicaid-eligible pediatric residents between the ages of six months and six years, blood screening for lead must be done in accordance with THSteps guidelines.

 

§19.802 Comprehensive Care Plans

 

(a) A facility must develop a comprehensive care plan for each resident that includes measurable short-term and long-term objectives and timetables to meet a resident's medical, nursing, mental and psychosocial needs that are identified in the comprehensive assessment. If a child is admitted to the facility, the comprehensive care plan must be based on the child's individual needs. The comprehensive care plan must describe the following:

(1) the services that are to be furnished to attain or maintain the resident's highest practicable physical, mental and psychosocial well-being as required under §19.901 of this title (relating to Quality of Care); and
(2) any services that would otherwise be required under §19.901 of this title but are not provided due to the resident's exercise of rights, including the right to refuse treatment under §19.402(g) of this title (relating to Exercise of Rights).

(b) The comprehensive care plan must be:

(1) developed within seven days after completion of the comprehensive assessment;
(2) prepared by an interdisciplinary team that includes the attending physician, a registered nurse with responsibility for the resident and other appropriate staff in disciplines as determined by the resident's needs, and, to the extent practicable, with the participation of the resident, the resident's family or legal representative;
(3) periodically reviewed and revised by a team of qualified persons after each assessment; and
(4) for a resident under 22 years of age, annually reviewed at a comprehensive care plan meeting between the facility and the resident's LAR as defined in §19.805(a)(5) of this title (relating to Permanency Planning for a Resident Under 22 Years of Age), which includes a review of:

(A) the LAR's contact information as required by §19.805(b)(5)(F) of this title;
(B) the resident's comprehensive assessment;
(C) the resident's educational status; and
(D) the resident's permanency plan.

(c) A comprehensive care plan must include:

(1) for a resident under 18 years of age, the activities, supports and services that, when provided or facilitated by the facility, will enable the resident to live with a family; or
(2) for a resident 18-22 years of age, the activities, supports and services that, when provided or facilitated by the facility, will result in the resident having a consistent and nurturing environment in the least restrictive setting, as defined by the resident and LAR as defined in §19.805(a)(5) of this title. (d) A comprehensive care plan may include a palliative plan of care. This plan may be developed only at the request of the resident, surrogate decision maker or legal representative for residents with terminal conditions, end stage diseases or other conditions for which curative medical interventions are not appropriate. The plan of care must have goals that focus on maintaining a safe, comfortable and supportive environment in providing care to a resident at the end of life.


(e) For a resident under 22 years of age, the facility must provide written notice to the LAR, as defined in §19.805(a)(5) of this title, of a meeting to conduct an annual review of the resident's comprehensive care plan no later than 21 days before the meeting date and request a response from the LAR.
(f) The services provided or arranged by the facility must:

(1) meet professional standards of quality; and
(2) be provided by qualified persons in accordance with each resident's written plan of care.

(g) The comprehensive care plan must be made available to all direct care staff.

 

§19.803 Discharge Summary (Discharge Plan of Care)

 

(a) Before or at the time of a resident's discharge, the facility must give the resident a discharge summary that includes:

(1) a recapitulation of the overall course of the resident's stay;
(2) a statement notifying a resident granted permanent medical necessity (PMN) under the Medicaid program that:

(A) PMN status continues after discharge, unless the resident is discharged to home;
(B) PMN status expires 30 consecutive days after the resident is discharged to home; and
(C) a new medical necessity determination is required if the resident applies to be admitted to a nursing facility under the Medicaid program more than 30 consecutive days after the resident moves home from a nursing facility; and (3) a post-discharge plan of care, developed with the participation of the resident, and a family representative, responsible party or legal guardian, that will, after discharge, assist the resident to adjust to his new living environment.

(b) The facility discharge summary must be available as required by subsection (a) of this section when a resident is being discharged home; to another nursing facility; a Medicare skilled nursing facility; or another residential facility, such as a board and care home, an intermediate care facility for individuals with an intellectual disability or related conditions, or an assisted living facility.

 

§19.804 Capacity Assessment for Self Care and Financial Management

 

(a) A facility will perform a Capacity Assessment for Self Care and Financial Management for persons who will be referred to a court for guardianship if the person:

(1) is elderly, which is defined as a person 60 years of age or older; or
(2) has mental retardation or a developmental disability; or
(3) is suspected of being a person with mental retardation or a developmental disability.

(b) The assessment will be completed when:

(1) a facility determines that a guardian of the estate, or the person, or both, may be appropriate and a referral to a court for guardianship is anticipated; or
(2) requested to do so by a court.

(c) The facility will use the Capacity Assessment for Self Care and Financial Management instrument developed by the Texas Department of Mental Health and Mental Retardation.
(d) The Capacity Assessment for Self Care and Financial Management will be performed by the facility social worker, with assistance from other professionals as requested by the social worker.

 

§19.805 Permanency Planning for a Resident Under 22 Years of Age

 

(a) Definitions. The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.

(1) Permanency planning – A philosophy and planning process that focuses on the outcome of family support by facilitating a permanent living arrangement, with the primary feature of an enduring and nurturing parental relationship. Family-directed planning empowers the family of a child under the age of 18 to direct the development of supports and services that meet the child's and family's personal outcomes as related to that child. Person-directed planning empowers the child who is between 18 and 22 years of age to direct the development of a plan of supports and services that meets the needs for self-determination.
(2) Child – A person with a developmental disability who is under 22 years of age.
(3) CRCG (Community resource coordination group) – A local interagency group composed of public and private agencies that develops service plans for individuals whose needs can be met only through interagency coordination and cooperation. The group's role and responsibilities are described in the Memorandum of Understanding on Coordinated Services to Persons Needing Services from More Than One Agency, available on the Health and Human Services Commission website at www.hhsc.state.tx.us/crcg/crcg.htm.
(4) Emergency situation – An unexpected situation involving a child's health, safety or welfare, of which a person of ordinary prudence would determine that the LAR should be informed, such as:

(A) a child needing emergency medical care;
(B) a child being removed from his residence by law enforcement;
(C) a child leaving his residence without notifying staff and not being located; and
(D) a child being moved from his residence to protect the child (for example, because of a hurricane, fire or flood).

(5) LAR (legally authorized representative) – A person authorized by law to act on behalf of a resident with regard to a matter described in this subchapter, which may include a parent, guardian, managing conservator of a minor individual, a guardian of an adult individual or legal representative of a deceased individual.
(6) Permanency planner – A person assigned by DADS to conduct permanency planning activities for a child who resides in a facility.

(b) Facility responsibilities regarding permanency planning.

(1) A facility must request a Preadmission Screening and Resident Review (PASARR) on every child who is a potential admission to a facility, as well as on all children currently residing in a facility who have not had a previous PASARR completed. Documentation regarding the request for or completion of a PASARR must be kept in the chart.
(2) A facility must notify the following entities of the child’s admission not later than the third day after a child is initially placed in the facility:

(A) DADS via fax, using DADS Form 2437, Notification of Nursing Facility Admission of Individual Under Age 22;
(B) the CRCG in the county where the LAR resides (see www.hhsc.state.tx.us/crcg/crcg.htm for a listing of CRCG chairpersons by county);
(C) the local office of the Early Childhood Intervention (ECI) Program of the Texas Department of Assistive and Rehabilitative Services, if a child is less than three years of age (see www.dars.state.tx.us/ecis/index.shtml or call 1-800-628-5115 for a listing of ECI programs by county); and
(D) the local school district, if a child is 3 to 22 years of age, with which the facility must coordinate educational opportunities (See §19.1934 of this title (relating to Educational Requirements for Persons under Age 22)).

(3) A facility must keep in a separate section at the front of each child's records:

(A) documentation regarding the notifications required in paragraph (2);
(B) a copy of all PASARR documents; and
(C) a copy of the current permanency plan.

(4) A facility must:

(A) cooperate with the permanency planner by:

(i) allowing access to a child's records or providing other information in a timely manner as requested by the permanency planner or the Health and Human Services Commission;
(ii) participating in meetings to review the child's permanency plan; and
(iii) identifying, in coordination with the permanency planner, activities, supports and services that can be provided by the family, LAR, facility, or the permanency planner to prepare the child for an alternative living arrangement;

(B) encourage regular contact between the child and LAR and, if desired by the child and LAR, between the child and advocates and friends in the community to continue supportive and nurturing relationships;
(C) encourage participation in the comprehensive care plan meetings by the LAR, and, if desired by the child or LAR, by family members, advocates and friends in the community;
(D) make reasonable accommodations to promote the participation of the LAR in all planning and decision-making regarding the child's care, including participating in:

(i) the initial development and annual review of the child's comprehensive care plan;
(ii) decision-making regarding the child's medical care;
(iii) routine interdisciplinary team meetings; and
(iv) decision-making and other activities involving the child's health and safety;

(E) ensure that reasonable accommodations include:

(i) conducting a meeting in person or by telephone, as mutually agreed upon by the facility and the LAR;
(ii) conducting a meeting at a time and, if the meeting is in person, at a location that is mutually agreed upon by the facility and the LAR; (iii) if the LAR has a disability, providing reasonable accommodations in accordance with the Americans with Disabilities Act, including providing an accessible meeting location or a sign language interpreter, if appropriate; and
(iv) providing a language interpreter, if appropriate;

(F) upon admission and annually thereafter:

(i) request from and encourage an LAR to provide the following information for a child during the annual comprehensive care plan meeting and, for an applicant, upon admission:

(I) the LAR's:

(-a-) name;
(-b-) address;
(-c-) telephone number;
(-d-) driver license number and state of issuance or personal identification card number issued by the Department of Public Safety; and
(-e-) place of employment and the employer's address and telephone number;

(II) the name, address, and telephone number of a relative of the child or other person whom DADS or the facility may contact in an emergency situation, a statement indicating the relation between that person and the child, and at the LAR's option:

(-a-) that person's driver license number and state of issuance or personal identification card number issued by the Department of Public Safety; and
(-b-) the name, address, and telephone number of that person's employer; and

(III) a signed acknowledgement of responsibility stating that the LAR agrees to:(-a-) notify the facility of any changes to the contact information submitted; and

(-b-) make reasonable efforts to participate in the child's life and in planning activities for the child; and


(ii) inform the LAR that if the information described in clause (i) of this subparagraph is not provided or is not accurate and the facility and DADS are unable to locate the LAR as described in subparagraph (J) of this paragraph, DADS refers the case to the Department of Family and Protective Services, in accordance with subsection (c) of this section;


(G) refrain from providing the LAR with inaccurate or misleading information regarding the risks of moving the child to another facility or community setting;
(H) if an emergency situation occurs, attempt to notify the LAR as soon as the emergency situation allows and request a response from the LAR;
(I) if an LAR does not respond to a notice of the child's annual comprehensive care plan meeting, a request for the LAR's consent, or an emergency situation, attempt to locate the LAR by contacting a person identified by the LAR in the contact information described in subparagraph (F) if this paragraph;
(J) no later than 30 days after the date the facility determines that it is unable to locate the LAR, notify DADS at 1-800-458-9858 of that determination and request that DADS initiate a search for the LAR;
(K) before a child who is under 18 years of age, or who is 18-22 years of age and for whom an LAR has been appointed, is transferred to another facility operated by the transferring facility, attempt to obtain consent for the transfer from the LAR, unless the transfer is made because of a serious risk to the health and safety of the child or another person; and
(L) document compliance with the requirements of this paragraph in the child's records.

(5) The facility administrator must ensure that the social worker or other appropriate staff, as needed, will contribute to the development of the permanency plan.
(6) Paragraphs (3)-(5) of this subsection do not apply to short-stay care of less than 14 days; however, the facility must notify DADS, the CRCG, ECI, and the local school district as required in paragraph (2)(A)-(D) of this subsection.

(c) If, within one year of the date DADS receives the notification described in subsection (b)(4)(J) of this section, DADS is unable to locate the LAR, DADS refers the case to:(1) the Child Protective Services Division of the Department of Family and Protective Services if the child is under 18 years of age; or (2) the Adult Protective Services Division of the Department of Family and Protective Services if the child is 18-22 years of age.

NFRLMC, Subchapter J, Quality of Care

Revision 17-1

 

§19.901 Quality of Care


Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, as defined by and in accordance with the comprehensive assessment and plan of care. If children are admitted to the facility, care and services must be provided to meet their unique medical and developmental needs.

(1) Activities of daily living. Based on the comprehensive assessment of the resident, the facility must ensure that:

(A) a resident's abilities in activities of daily living do not diminish unless the circumstances of the individual's clinical condition demonstrate that diminution is unavoidable. This includes the resident's abilities to:
(i) bathe, dress, and groom;
(ii) transfer and ambulate;
(iii) toilet;
(iv) eat; and
(v) use speech, language, or other functional communication systems.
(B) the resident is given the appropriate treatment and services to maintain or improve his abilities specified in paragraph (1) of this section. (C) a resident who is unable to carry out activities of daily living receives the necessary services to maintain good nutrition, grooming, and personal and oral hygiene.

(2) Vision and hearing. To ensure that residents receive proper treatment and assistive devices to maintain vision and hearing abilities, the facility must, if necessary, assist the resident:

(A) in making appointments; and
(B) by arranging for transportation to and from the office of a practitioner specializing in the treatment of vision or hearing impairment or the office of a professional specializing in the provision of vision or hearing assistive devices.

(3) Pressure sores. Based on the comprehensive assessment of the resident, the facility must ensure that:

(A) a resident who enters the facility without pressure sores does not develop pressure sores unless his clinical condition demonstrates that they are unavoidable; and
(B) a resident having pressure sores receives necessary treatment and services to promote healing, prevent infection, and prevent new sores from developing.

(4) Urinary incontinence. Based on the comprehensive assessment of the resident, the facility must ensure that:

(A) a resident who enters the facility without an indwelling catheter is not catheterized unless his clinical condition demonstrates that catheterization is necessary; and
(B) a resident who is incontinent of bladder receives appropriate treatment and services to prevent urinary tract infections and to restore as much normal bladder function as possible.

(5) Range of motion. Based on the comprehensive assessment of the resident, the facility must ensure that:

(A) a resident who enters the facility without a limited range of motion does not experience reduction in range of motion unless the resident's clinical condition demonstrates that a reduction in range of motion is unavoidable; and
(B) a resident with a limited range of motion receives appropriate treatment and services to increase range of motion and/or to prevent further decrease in range of motion.

(6) Mental and psychosocial functioning. Based on the comprehensive assessment of the resident, the facility must ensure that:

(A) a resident who displays mental or psychosocial adjustment difficulty receives appropriate treatment and services to correct the assessed problem; and
(B) a resident whose assessment does not reveal a mental or psychosocial adjustment difficulty does not display a pattern of decreased social interaction and/or increased withdrawn, angry, or depressive behaviors, unless his clinical condition demonstrates that such a pattern is unavoidable.

(7) Naso-gastric tube. Based on the comprehensive assessment of the resident, the facility must ensure that:

(A) a resident who has been able to eat enough alone or with assistance is not fed by naso-gastric tube unless his clinical condition demonstrates that use of a naso-gastric tube is unavoidable; and
(B) a resident who is fed by a naso-gastric or gastrostomy tube receives the appropriate treatment and services to prevent aspiration pneumonia, diarrhea, vomiting, dehydration, metabolic abnormalities, and nasal-pharyngeal ulcers, and to restore, if possible, normal eating skills.

(8) Accidents. The facility must ensure that:

(A) the resident environment remains as free of accident hazards as possible; and(B) each resident receives adequate supervision and assistive devices to prevent accidents.

(9) Nutrition. Based on the comprehensive assessment of the resident, the facility must ensure that a resident:

(A) maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless his clinical condition demonstrates that this is not possible; and
(B) receives a therapeutic diet when there is a nutritional problem.

(10) Hydration. The facility must ensure that the resident is provided with sufficient fluid intake to maintain proper hydration and health.
(11) Special needs. The facility must ensure that residents receive proper treatment and care for the following special services:

(A) injections;(B) parenteral or enteral fluids;(C) colostomy, ureterostomy, or ileostomy care;(D) tracheostomy care;(E) tracheal suctioning;(F) respiratory care;(G) foot care; and(H) prostheses.

(12) Unnecessary Drugs.

(A) General. Each resident's drug regimen must be free from unnecessary drugs. An unnecessary drug is any drug when used:
(i) in excessive dose (including duplicate drug therapy); or (ii) for excessive duration; or (iii) without adequate monitoring; or(iv) without adequate indications for its use; or(v) in the presence of adverse consequences which indicate the dose should be reduced or discontinued; or(vi) any combination of the circumstances in clauses (i)-(v) of this subparagraph.
(B) Antipsychotic drugs. Based on the comprehensive assessment of the resident, the facility must ensure that:
(i) residents who have not used antipsychotic drugs are not given these drugs unless antipsychotic drug therapy is necessary to treat a specific condition as diagnosed and documented in the clinical record; and
(ii) residents who use antipsychotic drugs receive gradual dose reductions, and behavioral interventions, unless clinically contraindicated, in an effort to discontinue use of these drugs.

(13) Medication errors. The facility must ensure that:

(A) it is free of medication error rates of five percent or greater, and(B) residents are free of significant medication errors.

(14) Pediatric care.

(A) Licensed nursing care of children. A facility caring for children must have twenty-four hour a day on-site licensed nursing staff in numbers sufficient to provide safe care. For any facility with five or more children under 26 pounds, at least one nurse must be assigned solely to the care of those children.
(B) Fewer than five pediatric residents. Facilities with fewer than five pediatric residents must assure that the children's rooms are in close proximity to the nurses' station.
(C) Respiratory care of children.
(i) To facilitate the care of ventilator-dependent children or children with tracheostomies, a facility must group those children in rooms contiguous or in close proximity to each other. An exception to this rule is children who are able to be schooled off-site.
(ii) Facilities must assure that alarms on ventilators, apnea monitors, and any other such equipment uniquely identify the child or the child's room.
(iii) A facility caring for children with tracheostomies requiring daily care (including ventilator-dependent children with tracheostomies) must have twenty-four hour a day on-site respiratory therapy staff in numbers sufficient to provide a safe ratio of respiratory therapist per these residents. For the purposes of this rule, respiratory therapy staff is defined as a registered respiratory therapist (RRT), a certified respiratory therapy technician (CRT), or a licensed nurse whose primary function is respiratory care.
(I) If the facility cares for nine or more children with tracheostomies requiring daily care (including ventilator-dependent children with tracheostomies), the facility must maintain a ratio of no less than one respiratory therapy staff per nine tracheostomy residents twenty-four hours a day.
(II) If the facility cares for six or more ventilator dependent children, the facility must:
(-a-) designate a respiratory therapy supervisor, either on staff or contracted who must be credentialed by the National Board for Respiratory Care (either CRT or RRT).
(-b-) provide and document that all respiratory therapy staff is trained in the care of children who are ventilator dependent. This training must be reviewed annually.
(-c-) assure that appropriate care, maintenance, and disinfection of all ventilator equipment and accessories occurs.

 

§19.910 Quality Assurance Early Warning System

 

The Health and Human Services Commission (HHSC) uses an early warning system to detect conditions that could be detrimental to the health, safety, and welfare of residents.

(1) Quality-of-care monitors conduct visits that may be announced or unannounced and may occur on any day and at any time, including nights, weekends, and holidays.
(2) Quality-of-care monitors may visit a facility:

(A) with a history of resident care deficiencies;
(B) that is identified as a medium risk through the early warning system; or
(C) that requests a visit.

(3) Quality-of-care monitors assess:

(A) the overall quality of life in the facility; and
(B) specific conditions in the facility directly related to resident care, including conditions identified through the facility's quality measure reports based on MDS assessments.

(4) A quality-of-care monitor assessment visit includes:

(A) observation of the care and services provided to a resident; and
(B) formal and informal interviews with residents, family members, facility staff, resident guests, volunteers, other regular staff, and resident representatives and advocates.

(5) HHSC does not disclose the identity of a resident or family member of a resident interviewed by a quality-of-care monitor unless required by law to do so.
(6) A quality-of-care monitor provides the findings of a monitoring visit, both positive and negative, orally and in writing to the facility administrator or, in the absence of the facility administrator, to the administrator on duty or the director of nursing.
(7) A quality-of-care monitor may recommend to the facility administrator procedural and policy changes and staff training to improve the care or quality of life of residents.
(8) A quality-of-care monitor conducts a follow-up visit within 45 days after the date of an initial visit.
(9) A quality-of-care monitor who observes conditions that may constitute an immediate threat to the health or safety of a resident immediately reports the conditions to the facility administrator, the monitor's regional office supervisor for appropriate action and, as appropriate, to law enforcement, adult protective services, other divisions of HHSC, and other agencies.

 

§19.911 Rapid Response Teams

 

(a) A rapid response team is comprised of one or more quality-of-care monitors and visits a facility that:

(1) is identified as high risk through the early warning system described in §19.910 of this subchapter (relating to Quality Assurance Early Warning System); or
(2) has committed three violations that constitute an immediate threat to health and safety relating to abuse or neglect of a resident as described in §19.2107 of this chapter (relating to Revocation of a License by the HHSC Executive Commissioner).

(b) A facility must cooperate with a rapid response team to improve the quality-of-care provided at the facility by:

(1) providing immediate access to all the parts of the building;
(2) providing immediate access to residents, staff, contractors and reasonable access to volunteers;
(3) providing access to all documents maintained by or on behalf of the facility upon request from the rapid response team;
(4) allowing the rapid response team to copy documents, photograph residents, and use any other available recording devices in accordance with §19.2002(h) of this chapter (relating to Procedural Requirements – Licensure Inspections and Surveys); and
(5) not interfering with the work of the rapid response team during a visit.

(c) In determining whether a facility has demonstrated improvement in quality of care, the rapid response team may consider factors such as implementation of the team’s recommendation or guidance.
(d) A rapid response team may visit a facility that requests assistance from HHSC. A visit under this subsection may not occur until at least 60 days after the date of an exit interview following an inspection.
(e) A rapid response team may not be deployed for the purpose of helping a facility prepare for an inspection or survey.

NFRLMC, Subchapter K, Nursing Services

Revision 18-3

 

§19.1001 Nursing Services

(a) The facility must have sufficient staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care. Nursing services to children must be provided by staff who have been instructed and have demonstrated competence in the care of children. Care and services are to be provided as specified in §19.901 of this chapter (relating to Quality of Care).

(1) Sufficient staff.
(A) The facility must provide services by sufficient numbers of each of the following types of personnel on a 24-hour basis to provide nursing care to all residents in accordance with resident care plans:
(i) licensed nurses, except when waived under paragraph (3) of this subsection; and
(ii) other nursing personnel.
(B) The facility must designate a licensed nurse to serve as a charge nurse on each shift, except when waived under paragraph (3) of this subsection.
(2) Registered nurse.
(A) The facility must use the services of a registered nurse for at least eight consecutive hours a day, seven days a week, except when waived under paragraph (3) or (4) of this subsection.
(B) The facility must designate a registered nurse to serve as the director of nursing on a full-time basis, 40 hours per week, except when waived under paragraph (4) of this subsection.
(C) The director of nursing may serve as a charge nurse only when the facility has an average daily occupancy of 60 or fewer residents.
(3) Waiver of requirement to provide licensed nurses on a 24-hour basis.
(A) To the extent that a facility is unable to meet the requirements of paragraphs (1)(B) and (2)(A) of this subsection, the state may waive these requirements with respect to the facility, if:
(i) the facility demonstrates to the satisfaction of the HHSC that the facility has been unable, despite diligent efforts (including offering wages at the community prevailing rate for nursing facilities), to recruit appropriate personnel;
(ii) HHSC determines that a waiver of the requirement will not endanger the health or safety of individuals staying in the facility;
(iii) the state finds that, for any periods in which licensed nursing services are not available, a registered nurse or a physician is obligated to respond immediately to telephone calls from the facility; and
(iv) the waivered facility has a full-time registered or licensed vocational nurse on the day shift seven days a week. For purposes of this requirement, the starting time for the day shift must be between 6 a.m. and 9 a.m. The facility must specify in writing the schedule that it follows.
(B) A waiver granted under the conditions listed in this paragraph is subject to annual state review.
(C) In granting or renewing a waiver, a facility may be required by the state to use other qualified, licensed personnel.
(D) The state agency granting a waiver of these requirements provides notice of the waiver to the State Ombudsman and the protection and advocacy system in the state for individuals with mental illness or individuals with intellectual or developmental disabilities.
(E) The nursing facility that is granted a waiver by the state notifies residents of the facility (or, when appropriate, the guardians or legal representatives of the residents) and members of their immediate families of the waiver.
(4) Waiver of the requirement to provide services of a registered nurse for more than 40 hours a week in a Medicare skilled nursing facility (SNF).
(A) The secretary of the U.S. Department of Health and Human Services (secretary) may waive the requirement that a Medicare SNF provide the services of a registered nurse for more than 40 hours a week, including a director of nursing specified in paragraph (2) of this subsection, if the secretary finds that:
(i) the facility is located in a rural area and the supply of Medicare SNF services in the area is not sufficient to meet the needs of individuals residing in the area;
(ii) the facility has one full-time registered nurse who is regularly on duty at the facility 40 hours a week; and
(iii) the facility either has:
(I) only residents whose physicians have indicated (through physician's orders or admission notes) that they do not require the services of a registered nurse or a physician for a 48-hour period; or
(II) made arrangements for a registered nurse or a physician to spend time at the facility, as determined necessary by the physician, to provide necessary skilled nursing services on days when the regular full-time registered nurse is not on duty.
(B) The secretary provides notice of the waiver to the State and the protection and advocacy system in the state for individuals with mental illness and individuals with intellectual or developmental disabilities.
(C) The SNF that is granted a waiver by the state notifies residents of the facility (or, when appropriate, the guardians or legal representatives of the residents) and members of their immediate families of the waiver.
(D) A waiver of the registered nurse requirement under subparagraph (A) of this paragraph is subject to annual renewal by the secretary.
(5) Request for waiver concerning staffing levels. The facility must request a waiver through the local HHSC Regulatory Services Division, in writing, at any time the administrator determines that staffing will fall, or has fallen, below that required in paragraphs (1) and (2) of this subsection for a period of 30 days or more out of any 45 days.
(A) The following information must be included in the request/notification:
(i) beginning date when facility was/is unable to meet staffing requirements;
(ii) type waiver requested (24-hour licensed nurse or seven-day-per-week R.N.);
(iii) projected number of hours per month staffing reduced for 24-hour licensed nurse waiver or seven-day-per-week R.N. waiver; and
(iv) staffing adjustments made due to inability to meet staffing requirements.
(B) Waivers for licensed-only or certified facilities will be granted by HHSC Regulatory Services Division staff. Waivers for a Medicare SNF receive final approval from the Centers for Medicare and Medicaid Services.
(C) If a facility, after requesting a waiver, is later able to meet the staffing requirements of paragraphs (1) and (2) of this subsection, HHSC Long-Term Care Regulatory Services Division staff must be notified, in writing, of the effective date that staffing meets requirements.
(D) Verification that the facility appropriately made a request and notification will be done at the time of survey.
(E) Amounts paid to Medicaid-certified facilities in the per diem payment to meet the staffing requirements of paragraphs (1) and (2) of this subsection may be adjusted if staffing requirements are not met.
(6) Duration of waiver. Approved waivers are valid throughout the facility licensure or certification period, unless approval is withdrawn. During the relicensure or recertification survey, the determination is made for approval or denial for the next facility licensure or certification period if a waiver continues to be necessary. The facility requests a redetermination for a waiver from HHSC Long-Term Care Regulatory Services Division staff at the time the survey is scheduled. At other times if a request is made, HHSC staff may schedule a visit for waiver determination.
(7) Requirements for waiver approval. To be approved for a waiver, the nursing facility must meet all of the requirements stated in this subchapter and the requirements specified throughout this chapter. In some instances, the survey agency may require additional conditions or arrangements such as:
(A) an additional licensed vocational nurse on day-shift duty when the registered nurse is absent;
(B) modification of nursing services operations; and
(C) modification of the physical environment relating to nursing services.
(8) Denial or withdrawal of a waiver. Denial or withdrawal of a waiver may be made at any time if any of the following conditions exist:
(A) requirements for a waiver are not met on a continuing basis;
(B) the quality of resident care is not acceptable; or
(C) justified complaints are found in areas affecting resident care.
(9) Requirement that SNFs be in a rural area. A SNF (Medicare) must be in a rural area for waiver consideration, as specified in paragraph (4) of this subsection. A rural area is any area outside the boundaries of a standard metropolitan statistical area. Rural areas are defined and designated by the federal Office of Management and Budget; are determined by population, economic, and social requirements; and are subject to revisions.

(b) Nurse staffing information.

(1) Data requirements. The facility must post the following information:
(A) on a daily basis:
(i) the facility name;
(ii) the current date;
(iii) the resident census; and
(iv) the specific shifts for the day; and
(B) at the beginning of each shift, the total number of hours and actual time of day to be worked by the following licensed and unlicensed nursing staff, including relief personnel directly responsible for resident care:
(i) RNs;
(ii) LVNs; and
(iii) CNAs.
(2) Posting requirements. The nursing facility must post the data described in paragraph (1) of this subsection:
(A) in a clear and readable format; and
(B) in a prominent place readily accessible to residents and visitors.


(3) Public access to posted nurse staffing data. The facility must, upon oral or written request, make copies of nurse staffing data available to the public for review at a cost not to exceed the community standard rate.
(4) Facility data retention requirements. The facility must maintain the posted daily nurse staffing data for the period of time specified by facility policy or for at least two years following the last day in the schedule, whichever is longer.

 

§19.1002 Additional Nursing Services Staffing Requirements

(a) The ratio of licensed nurses to residents must be sufficient to meet the needs of the residents.

(1) At a minimum, the facility must maintain a ratio (for every 24-hour period) of one licensed nursing staff person for each 20 residents or a minimum of .4 licensed-care hours per resident day. To determine licensed-care hours per resident day, multiply the number of licensed nurses by the number of hours they work in a single day and divide the product by the number of residents in the facility. Three nurses working eight-hour shifts is 24 hours, divided by 60 residents, equals .4 licensed-care hours per resident day.
(2) Licensed nurses who may be counted in the ratio include, but are not limited to, director of nursing, assistant directors of nursing, staff development coordinators, charge nurses, and medication/treatment nurses. These licensed nurses may be counted subject to the limitations of paragraphs (3) and (4) of this subsection.
(3) Staff, who also have administrative duties not related to nursing, may be counted in the ratio only to the degree of hours spent in nursing-related duties.
(4) If a multi-level facility (nursing facility or Medicare SNF) has one director of nursing over the entire facility, he may not be counted in the nursing ratio. A director of nursing for a single distinct part may be counted in the ratio for the distinct part.

(b) A graduate vocational nurse who has a temporary work permit must work under the direction of a licensed vocational nurse, registered nurse, or licensed physician who is physically present in the facility. The graduate nurse who has a temporary work permit must work under the direction of a registered nurse until registration has been achieved.
(c) If the facility uses licensed temporary nursing personnel, the temporary personnel must have the same qualifications that permanent facility employees do. If temporary personnel are used for afternoon or night shifts, a full-time, licensed nurse must be on call and immediately available by telephone. The on-call nurse must be a registered nurse unless the facility has a current waiver from DHS and is not required to provide daily RN coverage.
(d) Consultative pediatric nursing services must be available to facility staff if the facility has a pediatric resident.

 

§19.1004 Director of Nursing Services

The director of nursing services must serve only one facility in this capacity.

(1) If the director of nursing services has other institutional responsibilities, a qualified registered nurse must serve as an assistant so that there is the equivalent of a full-time director of nursing services on duty.
(2) If a nursing facility, as a result of waivered status, employs a licensed vocational nurse to supervise and direct nursing services, the facility must have an agreement with a registered nurse who must provide the vocational nurse at least four hours of consultation in the facility per week. The registered nurse must not assume director of nursing duties, but must act as a consultant to solve problems involving resident care, conduct in-service training, and maintain proper clinical records.

 

§19.1006 Nursing Facility Restorative Nursing Care

The facility must have a program of restorative nursing care that is an integral part of nursing service and is directed toward helping each resident to achieve and maintain an optimal level of self-care and independence, as defined by the Comprehensive Assessment and Comprehensive Care Plan. Nursing personnel must be trained in restorative nursing and must provide restorative services daily for residents who require them. Nursing personnel must routinely record these services in the resident's clinical record.

 

 

§19.1010 Nursing Practices

(a) Licensed nurses must practice within the constraints of applicable state laws and regulations governing their practice, including the Nurse Practice Act, and must follow the guidelines contained in the facility's written policies and procedures.
(b) Nurses must enter, or approve and sign, nurses' notes in the following instances:

(1) at least monthly; and
(2) at the time of any physical complaints, accidents, incidents, and change in condition or diagnosis, and progress. All of these situations must be promptly recorded as exceptions and included in the clinical record.

(c) If permitted by written policies of the nursing facility, an RN or a physician's assistant may determine and pronounce a resident dead unless a resident is being supported by artificial means that preclude a determination that the resident's spontaneous respiratory and circulatory functions have ceased. The facility's nursing staff and the medical staff or consultant must have jointly developed and approved the policies. The policies must include the following requirements:

(1) The apparent death of a resident must be reported immediately to the attending physician, relatives, and any guardian or legal representatives.
(2) The body of a deceased resident must not be removed from the facility without a physician's or registered nurse's authorization. Telephone authorization is acceptable, if not in conflict with local regulations. Authorization by a justice of the peace, acting as a coroner, is sufficient when the attending or consulting physician or registered nurse is not available.
(3) A death that involves trauma, or unusual or suspicious circumstances, must be reported immediately, in accordance with local regulations, and to DADS, in accordance with §19.602(e)(2) of this chapter (relating to Incidents of Abuse and Neglect Reportable to the Texas Department of Aging and Disability (DADS) and Law Enforcement Agencies by Facilities). Deaths must also be reported to DADS monthly, in accordance with §19.606 of this chapter (relating to Reporting of Resident Death Information).

 

§19.1011 Student Nurses

If the facility has a contract or agreement with an accredited school of nursing to use their facility for a portion of the student nurses' clinical experience, those student nurses may provide care under the following conditions.

(1) Student nurses may be used in nursing facilities, provided the instructor gives class supervision and assumes responsibility for all student nursing activities occurring within the facility. These students cannot be counted in the nurse-to-resident ratio required in the standards.
(2) The student nurse may administer medications only when in the facility on assignment as a student of their school of nursing.

 

§19.1012 Special Nurses and Sitters

(a) Facilities may develop their own policies regarding private duty aides and sitters.
(b) The nursing facility is responsible for meeting the needs of the residents regardless of the presence of special nurses or sitters.
(c) In Medicaid-certified facilities, the following apply:

(1) The facility is not responsible for payment for a special nurse (registered nurse or licensed vocational nurse) or sitter requested by the resident's physician or family.
(2) The special nurse or sitter must be hired as a separate agreement between the nurse or sitter and resident, or the resident's family or legal representative, and paid directly by them.
(3) The facility may assist in the hiring of a special nurse or sitter but may not in any way enter into the billing, collection, or fee-setting for the special duty nurse or sitter. If it is determined by the auditing staff that the facility received monetary benefits from an arrangement for special duty nurses or sitters, a financial exception will be made and the facility will be asked to reimburse the resident or the responsible party who paid the special duty nurses or sitters. If the resident or family hires an individual to do the special duty nursing, who was already on the facility's staff and a replacement for this person was not hired, the facility will be determined to have received a monetary benefit. See §19.2606 of this title (relating to Supplementation of Vendor Payments.)

NFRLMC, Subchapter L, Dietary Services

 

 

Revision 07-3

 

§19.1101 Dietary Service

 

The facility must provide each resident with a nourishing, palatable, well-balanced diet that meets daily nutritional and special dietary needs of each resident.

 

§19.1102 Staffing

 

The facility must employ a qualified dietitian either full-time, part-time, or on a consultant basis.

 

(1) A qualified dietitian is one who is qualified based upon either:

(A) registration by the Commission on Dietetic Registration of the American Dietetic Association; or
(B) licensure, or provisional licensure, by the Texas State Board of Examiners of Dietitians. These individuals must have one year of supervisory experience in dietetic service of a health care facility.

(2) If a qualified dietitian is not employed full-time, the facility must designate a person to serve as the director of food service who receives frequently scheduled consultation from a qualified dietitian.
(3) The designated director of food service is responsible for the overall operation of the dietary service. If the director is not a qualified dietitian, he must receive consultation from a qualified dietitian. The director of food service must participate in regular conferences with the administrator and with the registered nurse who has responsibility for the resident and the resident's plan of care. In conferences concerning the resident's plan of care, the director of food service must provide information about approaches to identified nutritional problems. The director of food service should make recommendations and assist in developing personnel policies.
(4) The director of food service must be at least:

(A) a qualified dietitian;
(B) an associate-in-arts graduate in nutrition and food management (such as Dietetics, Home Economics, or Restaurant Management);
(C) a graduate of a dietetic technician or dietetic assistant training program approved by the American Dietetic Association, or the Dietary Manager's Association, whether conducted by correspondence or in a classroom;
(D) a person who has completed a state-agency-approved 90-hour course in food service supervision; or
(E) a person who has training and experience in food service supervision and management in a military service equivalent in content to the programs in subparagraphs (A)-(D) of this paragraph and has had his training credentials evaluated and approved by the nutrition program specialist of the Texas Department of Human Services' Long Term Care-Regulatory.

 

§19.1103 Sufficient Staffing

 

The facility must employ sufficient dietary support personnel who are competent to carry out the functions of the dietary service.

 

§19.1104 Dietary Consultant Requirements

 

(a) The facility must ensure a qualified dietitian is available as frequently and for such time as is necessary to assure each resident a diet that meets the daily nutritional and special dietary needs of each resident, based upon the acuity and clinical needs of the resident. The facility must ensure that monthly dietary consultant hours are provided, at a minimum, as follows:

(1) facility population: 60 residents or under - eight hours;
(2) facility population: each additional 30 residents or fraction thereof - four hours.


(b) To meet the consultant-hour requirement, time is accrued and counted exactly as rendered.
(c) The qualified dietitian must be a part of the interdisciplinary team conducting assessment and care planning where indicated by the individual resident's needs.
(d) The facility must outline consultant services in a signed contract. This requirement does not apply to facilities which employ a qualified dietitian on their staff.

 

§19.1107 Menus and Nutritional Adequacy

 

(a) Menus must:

(1) meet the nutritional needs of residents in accordance with the recommended dietary allowances of the Food and Nutrition Board of the National Research Council, National Academy of Sciences;
(2) be prepared at least one week in advance;
(3) be written for each type of diet ordered in the facility, in accordance with the facility's diet manual;
(4) be written or completely evaluated by the facility's dietitian or consultant dietitian;
(5) vary from week to week, taking the general age-group of residents into consideration; and
(6) be followed. Any substitutions must be documented as required in subsection (d) of this section.

(b) A qualified dietitian may accept diet orders and changes from the physician.
(c) The facility must ensure that a current diet manual, approved by the facility dietitian or the consultant dietitian, is readily available to dietary service personnel and the supervisor of nursing service. To be current, the diet manual must be no more than five years old.
(d) The facility must retain records of menus served and food purchased for 30 days. A list of residents receiving special diets and a record of their diets must be kept in the dietary area for at least 30 days.
(e) The facility must post the current week's menu:

(1) in the dietary department, including therapeutic diet menus, so employees responsible for purchasing, preparing, and serving foods can use it; and
(2) in a convenient location so the residents may see it.

(f) The dietary department must keep a seven-day supply of staple foods and a two-day supply of perishable foods at all times. The facility is allowed the flexibility to use food on hand to make substitutions at any interval as long as comparable nutritional value is maintained. Any substitution of menu items must be recorded on the day of use. See also §19.1719(o)(1) of this title (relating to Other Rooms and Areas) for information concerning storage areas.
(g) Accommodation of resident needs. The facility must provide:

(1) table service for all who can and will eat at the table, including wheelchair residents;
(2) firm supports, such as over-bed tables, for serving trays to bedfast residents;
(3) sturdy tray stands of proper height to residents able to be out of bed for their meals;
(4) special eating equipment and utensils for residents who need them; and
(5) prompt assistance for residents who need help eating.

(h) An identification system, such as tray cards, must be available to ensure that all diets are served in accordance with physician's orders.

 

§19.1108 Food

 

Each resident must receive and the facility must provide:

(1) food prepared in accordance with established professional food preparation practices and by methods that conserve nutritive value, flavor, and appearance;
(2) adequate amounts of food that is palatable, attractive, and at the proper temperature;
(3) food prepared in a form designed to meet individual needs;
(4) substitutes of similar nutritive value to residents who refuse food served, and
(5) food that is prepared and served on schedule.

 

§19.1109 Food Intake

 

Food intake of residents must be monitored and recorded as follows.

(1) Deviations from normal food and fluid intake must be recorded in the clinical records. See also §19.1911(12)(B)(vi) of this title (relating to Contents of the Clinical Record) for information concerning dietary intake and clinical records.
(2) In-between meals and bedtime snacks, and supplementary feedings, either as a part of the overall care plan or as ordered by a physician, including caloric-restricted diets, must be documented using the point, percentage, or other system consistently facility-wide. See also §19.1911(12)(B)(vi) of this title (relating to Contents of the Clinical Record) for information concerning dietary intake and clinical records.

 

§19.1110 Frequency of Meals

 

(a) Each resident receives and the facility provides at least three meals daily, at regular times comparable to normal mealtimes in the community.
(b) There must be not more than 14 hours between a substantial evening meal and breakfast the following day, except as provided in subsection (d) of this section.
(c) The facility must offer snacks at bedtime daily. Routine snacks that are not ordered by the physician and are not part of the plan of care do not need to be documented as accepted or rejected.
(d) When a nourishing snack is provided at bedtime, up to 16 hours may elapse between a substantial evening meal and breakfast the following day, if a resident group agrees to this meal span and a nourishing snack is served.

 

§19.1111 Sanitary Conditions

 

(a) The facility must:

(1) procure food from sources approved or considered satisfactory by federal, state, and local authorities;
(2) store, prepare, and serve food under sanitary conditions, as required by the Texas Department of Health food service sanitation requirements; and
(3) dispose of garbage and refuse properly. See also §19.318(j)-(l) of this title (relating to Other Rooms and Areas) for information concerning dietary physical plant.

(b) Dietary service personnel must be in good health and practice hygienic food-handling techniques. Persons with symptoms of communicable diseases or open, infected wounds may not work.
(c) Dietary service personnel must wear clean, washable garments, wear hair coverings or clean caps, and have clean hands and fingernails.
(d) Routine health examinations must meet all local, state, and federal codes for food service personnel.

 

§19.1113 Paid Feeding Assistants

 

(a) State-approved training course. The facility may use a paid feeding assistant, if the paid feeding assistant has successfully completed a state-approved training course that meets the requirements of §19.1115 of this chapter (relating to Requirements for Training of Paid Feeding Assistants) before feeding residents. The facility must not use any individual working in the facility as a paid feeding assistant unless that individual has successfully completed the state-approved training course for paid feeding assistants.
(b) Supervision. A paid feeding assistant must work under the supervision of a registered nurse or a licensed vocational nurse. In an emergency, a paid feeding assistant must call a supervisory nurse for help. A paid feeding assistant can only feed residents in the dining room.
(c) Resident selection criteria.

(1) The facility must ensure that a paid feeding assistant only feed residents who have no complicated feeding problems, which include difficulty swallowing, recurrent lung aspirations, and tube or parenteral/IV feedings.
(2) The facility must base resident selection on the charge nurse's assessment and the resident's latest assessment and plan of care.

 

§19.1115 Requirements for Training of Paid Feeding Assistants

 

(a) Minimum training course contents. A state-approved training course for paid feeding assistants must include, at a minimum, 16 hours of training in the following:

(1) feeding techniques;
(2) assistance with feeding and hydration;
(3) communication and interpersonal skills;
(4) appropriate response to resident behavior;
(5) safety and emergency procedures, including the Heimlich maneuver;
(6) infection control;
(7) resident rights; and
(8) recognizing changes in residents that are inconsistent with their normal behavior and the importance of reporting those changes to the supervisory nurse.

(b) Maintenance of records. The facility must maintain a record of all individuals used by the facility as paid feeding assistants who have successfully completed the state-approved training course for paid feeding assistants. At a minimum, documentation must include the date and location of the course, the name of the trainer, and a statement that the course was successfully completed.
(c) Repeat training. If paid feeding assistants seek employment at a facility other than the facility at which they were trained, they will not be required to repeat the state-approved training course if documentation of successful course completion, as outlined in subsection (b) of this section, is given to the hiring facility.

NFRLMC, Subchapter M, Physician Services

 

 

Revision 08-5

 

§19.1201 Physician Services

 

A physician must personally approve in writing a recommendation that an individual be admitted to a facility. Each resident must remain under the care of a physician. The facility must ensure that:

(1) the medical care and other health care of each resident is supervised by an attending physician. Any consultations must be ordered by the attending physician;
(2) another physician supervises the medical care and other health care of residents when their attending physician is unavailable; and
(3) if children are admitted to the facility:

(A) appropriate pediatric consultative services are utilized, in accordance with the comprehensive assessment and plan of care; and
(B) a pediatrician or other physician with training or expertise in the clinical care of children with complex medical needs participates in all aspects of the medical care.

 

§19.1202 Physician Visits

 

The physician must:

(1) review and/or revise and sign orders relating to the resident's total program of care, including medications and treatments, according to the visit schedule required by §19.1203(2) of this title (relating to Frequency of Physician Visits);
(2) write, sign, and date progress notes at each visit;
(3) sign and date all orders;
(4) write, sign, and date a physician's discharge summary within 20 workdays of being notified by the facility of the discharge, except as specified in §19.1912(e) of this title (relating to Additional Clinical Record Service Requirements), if the resident has been temporarily discharged for 30 days or less, and readmitted to the same facility; and
(5) provide documentation in the clinical record as specified in §§19.1911 and 19.1912 of this title (relating to Contents of the Clinical Record, and Additional Clinical Record Service Requirements).

 

§19.1203 Frequency of Physician Visits

 

Physician visits must conform to the following schedule:

(1) Licensed-only facility. Each resident must have a medical examination at least annually by his physician and as necessary to meet the needs of the resident. Physician orders must be reviewed and revised as necessary at least once every 60 days, unless the resident's physician specifies, in writing in the resident's clinical record, a different schedule for each review and revision.
(2) Medicaid-certified facilities and Medicare skilled nursing facilities.

(A) The resident must be seen by a physician at least once every 30 days for the first 90 days after admission, and at least once every 60 days thereafter.
(B) A physician visit is considered timely if it occurs not later than 10 days after the date the visit was required.
(C) Except as provided in paragraph (3) of this section and §19.1205(c) of this title (relating to Physician Delegation of Tasks), all required visits must be made by the physician personally.

(3) Medicare skilled nursing facilities. At the option of the physician, required visits in Medicare skilled nursing facilities after the initial visit may alternate between personal visits by the physician and visits by a physician assistant, nurse practitioner, or clinical nurse specialist in accordance with §19.1205 of this title (relating to Physician Delegation of Tasks).

 

§19.1204 Availability of Physician for Emergency Care

 

The facility must provide or arrange for the provision of physician services 24 hours a day, in case of an emergency.

 

§19.1205 Physician Delegation of Tasks

 

(a) In a Medicare skilled nursing facility (SNF), except as specified in subsection (b) of this section, a physician may delegate tasks to a physician assistant, nurse practitioner, or clinical nurse specialist who:

(1) meets the applicable definition in 42 Code of Federal Regulations, §491.2 (see §19.101 of this title (relating to Definitions)) or in the case of a clinical nurse specialist, is licensed as such by the state;
(2) is acting within the scope of practice as defined by state law; and
(3) is under the supervision of the physician.

(b) In a Medicare SNF, a physician may not delegate a task when the regulations specify that the physician must perform it personally, or when the delegation is prohibited under state law or by the facility's own policies.
(c) In a Medicaid nursing facility, any required physician task may also be satisfied when performed by a nurse practitioner, clinical nurse specialist, or physician assistant who is not an employee of the facility but who is working in collaboration with a physician. Services must be provided in the context of applicable state laws, rules, and regulations governing the practice of nurse practitioners, clinical nurse specialists, and physician assistants.
(d) The physician extender providing care to a pediatric resident must have training and expertise in the care of children with complex medical needs.

 

§19.1206 Physician Signatures

 

Signature stamps and faxed signed documents are acceptable if used as described in §19.1912(f)(2) of this title (relating to Additional Clinical Record Service Requirements).

 

§19.1207 Prescription of Psychoactive Medication

 

(a) In this section, the following words and terms have the following meanings, unless the context clearly indicates otherwise:

(1) Medication-related emergency--A situation in which it is immediately necessary to administer medication to a resident to prevent:
(A) imminent probable death or substantial bodily harm (emotional or physical) to the resident; or
(B) imminent physical or emotional harm to another because of threats, attempts, or other acts the resident overtly or continually makes or commits.
(2) Psychoactive medication--A medication prescribed for the treatment of symptoms of psychosis or other severe mental or emotional disorders and used to exercise an effect on the central nervous system to influence and modify behavior, cognition, or affective state when treating the symptoms of mental illness. The term includes the following categories when used as described by this subdivision:
(A) anti-psychotics or neuroleptics;
(B) antidepressants;
(C) agents for control of mania or depression;
(D) anti-anxiety agents;
(E) sedatives, hypnotics, or other sleep-promoting drugs; and
(F) psychomotor stimulants.

(b) A person may not administer a psychoactive medication to a resident who does not consent to the prescription unless:

(1) the resident is having a medication-related emergency; or
(2) the person authorized by law to consent on behalf of the resident has consented to the prescription.

(c) Consent to the prescription of psychoactive medication given by a resident, or by a person authorized by law to consent on behalf of the resident, is valid only if:

(1) the consent is given voluntarily and without coercive or undue influence;
(2) the person who prescribes the medication, or that person's designee, provides the resident and, if applicable, the person authorized by law to consent on behalf of the resident, with the following information in a single document identified as being for the purpose of consent to treatment with psychoactive medication:
(A) the specific condition to be treated;
(B) the beneficial effects on that condition expected from the medication;
(C) the probable clinically significant side effects and risks associated with the medication, as reported in widely available pharmacy databases or the manufacturer's package insert; and
(D) the proposed course of the medication;
(3) the resident and, if appropriate, the person authorized by law to consent on behalf of the resident, are informed in writing that consent may be revoked; and (4) the consent is evidenced in the resident's clinical record by a signed form prescribed by the facility, or by a statement of the person who prescribes the medication or that person's designee, that documents consent was given by the appropriate person and the circumstances under which the consent was obtained.
(A) Consent is valid until:
(i) consent is withdrawn; or
(ii) the practitioner has discontinued the medication.
(B) For purposes of this rule, a medication will be considered to be discontinued if therapy has been suspended for more than 70 days. If the suspended therapy is resumed within the 70-day period, an oral explanation of side effects should be documented in the clinical record.

(d) The Health and Safety Code, Chapter 313, Consent to Medical Treatment, provides guidance on treatment decisions when a resident is comatose, incapacitated, or otherwise mentally or physically incapable of communication. An ethics committee also may prove helpful in such situations.
(e) A resident's refusal to consent to receive psychoactive medication must be documented in the resident's clinical record.
(f) If a person prescribes psychoactive medication to a resident without the resident's consent because the resident is having a medication-related emergency:

(1) the person must document the necessity of the order in the resident's clinical record in specific medical or behavioral terms; and
(2) treatment of the resident with the psychoactive medication must be provided in the manner, consistent with clinically appropriate medical care, least restrictive of the resident's personal liberty.

(g) A physician, or a person designated by the physician, is not liable for civil damages or an administrative penalty and is not subject to disciplinary action for a breach of confidentiality of medical information for a disclosure of the information provided under subsection (c)(2) made by the resident, or the person authorized by law to consent on behalf of the resident, that occurs while the information is in the possession or control of the resident or the person authorized by law to consent on behalf of the resident.

 

§19.1208 Physicians' Reporting Communicable Diseases

 

The physician must report all reportable communicable diseases immediately according to the requirements specified in §19.1601(2)(D) of this title (relating to Infection Control).

 

§19.1210 Certification and Recertification Requirements in Medicaid-Certified Facilities

 

(a) A recipient's physician must certify and recertify the recipient's need for nursing facility care in accordance with this section.
(b) A recipient's physician must certify the recipient's need for nursing facility care no later than 20 days after the recipient's admission to the facility.
(c) A recipient's physician must recertify the recipient's need for nursing facility care every 180 days that the recipient remains in the nursing facility after the first certification.
(d) A nursing facility must:

(1) ensure that each certification and recertification statement states: "I hereby certify that this resident requires/continues to require nursing facility care for 180 days"; and
(2) keep the physician's certification and recertification statements in the recipient's clinical record.

NFRLMC, Subchapter N, Rehabilitative Services

 

 

Revision 17-2

 

§19.1300 Purpose

 

(a) This subchapter contains the requirements a facility must comply with to provide rehabilitative services to a resident.

(b) Subchapter BB (relating to Nursing Facility Responsibilities Related to Preadmission Screening and Resident Review (PASRR)) contains the requirements a facility must comply with to provide nursing facility specialized services to a designated resident, as define in §19.2703 of this chapter (relating to Definitions).

 

§19.1301 Provision of Rehabilitative Services

 

(a) If rehabilitative services are required in a resident's comprehensive care plan, the facility must:

(1) provide the required services; or
(2) obtain the required services from an outside resource, in accordance with §19.1906 of this chapter (relating to Use of Outside Resources).

(b) A facility must ensure that rehabilitative services:

(1) are provided to a resident under a comprehensive care plan based on a physician's diagnosis and orders; and
(2) are documented in the resident's clinical record.

 

§19.1302 Qualifications

 

A facility must ensure that rehabilitative services are provided by:

(1) an individual who:
(A) is a speech-language pathologist licensed by the Texas Department of Licensing and Regulation; or
(B) meets the educational requirements and has accumulated, or is in the process of accumulating, the supervised professional experience required to be licensed as a speech-language pathologist;
(2) an individual who:
(A) is an audiologist licensed by the Texas Department of Licensing and Regulation; or
(B) meets the educational requirements and has accumulated, or is in the process of accumulating, the supervised professional experience required to be licensed as an audiologist;
(3) an occupational therapist licensed by the Texas Board of Occupational Therapy Examiners;
(4) an occupational therapy assistant licensed by the Texas Board of Occupational Therapy Examiners;
(5) a physical therapist licensed by the Texas Board of Physical Therapy Examiners;
(6) a physical therapist assistant licensed by the Texas State Board of Physical Therapy Examiners; or
(7) a qualified mental health professional – community services.

 

§19.1304 Rehabilitative Services in Medicaid-Certified Facilities

 

(a) Rehabilitative services covered by Medicaid are physical therapy services, occupational therapy services, and speech therapy services.
(b) A facility must ensure that rehabilitative services covered by Medicaid are provided to a resident to evaluate or treat a function that has been impaired by illness or injury. Rehabilitative services must be provided with the expectation that the resident's functioning will improve measurably in 30 days.

 

§19.1306 Fee-for-Service Payment for Rehabilitative Services

 

(a) HHSC pays a facility for rehabilitative services provided to a Medicaid eligible resident based on fees determined in accordance with Title 1, Texas Administrative Code (TAC) §355.313 (relating to Reimbursement Methodology for Rehabilitative and Specialized Services).
(b) A facility must ensure that rehabilitative services provided to a resident eligible for Medicaid are:

(1) ordered by the resident's attending physician; and
(2) except as provided in subsection (c)(1) of this section, pre-certified by DADS.

(c) A session is one physical, occupational, or speech therapy service provided to one resident. HHSC pays for an evaluation at the same rate as a session.

(1) HHSC pays for one evaluation that is not pre-certified by DADS.
(2) To have and additional evaluation pre-certified by DADS, facility must submit documentation by the attending physician that indicates the resident has a new illness or injury, or a substantive change in a pre-existing condition.

(d) A facility must submit a complete and accurate claim for services that is received by DADS within 12 months after the last day services are provided in accordance with a single pre-certification by DADS.
(e) A resident whose request for pre-certification of Medicaid rehabilitative services is denied may request fair hearing in accordance with 1 TAC Chapter 357, Subchapter A (relating to Uniform Fair Hearing Rules).

NFRLMC, Subchapter O, Dental Services

 

 

Revision 07-3

 

§19.1401 Dental Services

 

(a) The facility must assist residents in obtaining routine and 24-hour emergency dental care.

(1) At the time of admission, the facility must obtain the name of the resident's preferred dentist and record the name in the clinical record.
(2) At least annually, the facility must ask each resident and/or responsible party if they desire a dental examination at the resident's expense.
(3) The facility must make all reasonable efforts to arrange for a dental examination for each resident who desires one.
(4) The facility is not liable for the cost of the resident's dental care.
(5) Licensed-only facilities must maintain a list of local dentists for residents who require one.

(b) Medicaid-certified facilities also must provide or obtain from an outside resource, in accordance with §19.1906 of this title (relating to Use of Outside Resources), the following dental services to meet the needs of each resident:

(1) emergency dental services, which are limited to procedures necessary to control bleeding, relieve pain, and eliminate acute infection; operative procedures which are required to prevent the imminent loss of teeth; treatment of injuries to the teeth or supporting structures.
(A) Covered emergency dental procedures include, but are not limited to:
(i) alleviation of extreme pain in oral cavity associated with serious infection or swelling;
(ii) repair of damage from loss of tooth due to trauma (acute care only, no restoration);
(iii) open or closed reduction of fracture of the maxilla or mandible;
(iv) repair of laceration in or around oral cavity;
(v) excision of neoplasms, including benign, malignant and premalignant lesions, tumors and cysts;
(vi) incision and drainage of cellulitis;
(vii) root canal therapy. Payment is subject to dental necessity review and pre- and post-operative x-rays are required; and
(viii) extractions: single tooth, permanent; single tooth, primary; supernumerary teeth; soft tissue impaction; partial bony impaction; complete bony impaction; surgical extraction of erupted tooth or residual root tip.
(B) Routine restorative procedures are not considered emergency procedures. Dental services not covered include, but are not limited to:
(i) cleaning;
(ii) filling teeth with amalgam composite, glass ionomer, or any other restorative material;
(iii) cast or preformed crowns (capping);
(iv) restoration of carious or noncarious permanent or primary teeth, including those requiring root canal therapy;
(v) replacement or repositioning of teeth;
(vi) services to the alveolar ridges or periodontium of the maxilla and the mandible, except for procedures covered under subparagraph (A) of this paragraph; and
(vii) complete or partial dentures.
(2) assistance to the resident, if necessary:
(A) in making appointments, and
(B) by arranging for transportation to and from the dentist's office.
(3) prompt referral of residents with lost or damaged dentures to a dentist.
(4) coordination of dental services for pediatric residents age 12 months to 21 years, in accordance with Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) guidelines.

(c) Medicaid-certified facilities are not required to provide routine dental services.
(d) Payment for services provided on the teeth, gums, alveolar ridges, and supporting structures are not a benefit of the Texas Medicaid Program; however, recipients with applied income may use incurred medical expenses to pay for routine dental services and appliances.

§19.1402 Medicaid-Certified Nursing Facility Emergency Dental Services

(a) Emergency dental services. The Texas Department of Human Services (DHS) will reimburse nursing facilities the cost of emergency dental services provided to eligible Medicaid residents residing in Medicaid-contracted facilities or distinct parts.

(1) Recipients must be 21 years of age or older.
(2) Dental care for recipients under the age of 21 is covered under the Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) program.
(3) Services reimbursed are subject to the limitations specified in §19.1401(b) of this title (relating to Dental Services).
(4) Emergency dental services may be provided only if the attending physician orders a dental consultation. See §19.1201 of this title (relating to Physician Services).

(b) Dental providers. Emergency dental services must be provided by a dentist licensed by the Texas State Board of Dental Examiners who, if not employed by the facility, contracts with the facility according to the specifications outlined in §19.1906 of this title (relating to Use of Outside Resources).
(c) Reimbursement for Emergency Dental Services. The cost of emergency dental services provided to eligible Medicaid residents residing in nursing facilities will be reimbursed to facilities, provided that the services are not reimbursable by the Medicaid claims processor or the EPSDT program.
(d) Payment of Claims.

(1) The facility must accept payment by DHS as payment in full for services. Neither the dentist nor the facility may charge an additional fee to the recipient, his family, or his trust fund, except that the dentist may charge the recipient for services that:
(A) the recipient requests; and
(B) are not reimbursable by the Texas Medical Assistance Program.
(2) Payments for emergency dental services are the lower of the:
(A) dentist's usual fee; or
(B) maximum fee as determined by the Texas Health and Human Services Commission (HHSC).
(3) DHS reimburses facilities for services properly rendered in accordance with applicable laws, regulations, and operational instructions. DHS may withhold or suspend payment for services that are not properly rendered.
(4) Nursing Facility Emergency Dental Services makes no payment for services that are available under any other Texas Medical Assistance Program.
(5) Complete and accurate claims for services must be received within 12 months from the date of service.
(6) Claims for services delivered before the effective date of this section must be submitted within 12 months of the effective date of this section.
(7) Adjustments to claims must be received by DHS's claims processor during the applicable 12-month period. Claims and adjustments rejected or denied during the 12-month period through no fault of the dentist may be paid upon approval by DHS.

NFRLMC, Subchapter P, Pharmacy Services

 

 

Revision 11-3

 

§19.1501 Pharmacy Services

 

A licensed-only facility must assist the resident in obtaining routine drugs and biologicals and make emergency drugs readily available, or obtain them under an agreement described in §19.1906 of this title (relating to Use of Outside Resources). A Medicaid-certified facility must provide routine and emergency drugs and biologicals to its residents, or obtain them under an agreement described in §19.1906 of this title (relating to Use of Outside Resources). See also §19.901(12) and (13) of this title (relating to Quality of Care) for information concerning drug therapy and medication errors.

(1) Methods and procedures. The facility may permit unlicensed personnel to administer drugs, but only under the general supervision of a licensed nurse. The unlicensed individual must be a nursing student, a medication aide student, or a medication aide with a current permit issued by the Texas Department of Human Services.
(2) Accuracy in service delivery. A facility must provide pharmaceutical services (including procedures that assure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of each resident.
(3) Service Consultation. The facility must employ or obtain the services of a pharmacist, currently licensed by the Texas State Board of Pharmacy and in good standing, who:

(A) provides consultation on all aspects of the provision of pharmacy services in the facility;
(B) establishes a system of records of receipt and disposition of all controlled drugs in sufficient detail to enable an accurate reconciliation;
(C) determines that drug records are in order and that an account of all controlled drugs is maintained and periodically reconciled; and
(D) adheres to requirements in §19.1503 of this title (relating to Additional Supervision and Consultation Requirements).

(4) Drug regimen review.

(A) The drug regimen of each resident must be reviewed at least once a month by a licensed pharmacist. The consultant pharmacist's drug regimen review must be maintained in the resident's clinical record.
(B) The pharmacist must report any irregularities to the attending physician and the director of nursing, and these reports must be acted upon.

(5) Labeling of drugs and biologicals. Drugs and biologicals used in the facility must be labeled in accordance with currently accepted professional principals and in compliance with the Texas State Board of Pharmacy Laws and Regulations, §291, including the appropriate accessory and cautionary instructions and the expiration date when applicable.
(6) Storage of drugs and biologicals.

(A) In accordance with state and federal laws, the facility must store all drugs and biologicals in locked compartments under proper temperature controls and permit only authorized personnel to have access to the keys.
(B) The facility must provide separately locked, permanently affixed compartments for storage of controlled drugs, listed in Schedule II of the Comprehensive Drug Abuse Prevention and Control Act of 1976, and of other drugs subject to abuse, except when the facility uses single-unit-package drug distribution systems in which the quantity stored is minimal and a missing dose can be readily detected (see §19.1509 of this title (relating to Controlled Substances)).

§19.1502 Choice of Pharmacy Provider

 

(a) Unless the facility is paying for the drugs and biologicals, the resident's choice of pharmacy provider and any changes in his choice must be recorded on appropriate forms maintained by the facility.
(b) A Medicaid-certified facility must have written agreements with its provider pharmacies that define required services. These agreements will not be considered to abridge the resident's freedom of choice of pharmacy services when they require labeling, packaging, and a drug-distribution system according to facility policy. The drug-distribution system must be accessible to all pharmacies willing to meet the distribution system requirements. The agreements must require the following:

(1) that the resident's pharmacy services be provided by a pharmacy on a 24-hour basis for emergency medications; and
(2) that the resident's medications be delivered to the facility on a timely and reasonable basis.

(c) The resident's choice of pharmacy provider must be in accordance with §19.406(c) of this title (relating to Free Choice).

§19.1503 Additional Supervision and Consultation Requirements

 

(a) The facility must provide pharmaceutical services under the responsibility and direction of the consultant pharmacist and the director of nursing.
(b) The facility must ensure that notes on the monthly visits by the consulting pharmacist are entered in the resident's clinical record.
(c) The number of hours per month the consultant pharmacist devotes to the pharmaceutical services for ordering, storage, administration, disposal, recordkeeping (documentation) of drugs and medications, and drug regimen review must be sufficient to meet the needs of the residents.
(d) A record of consultant pharmacist services, consultations, and recommendations for pharmacy procedure must be maintained at the facility.

 

§19.1504 Drug Security

 

(a) The facility must establish procedures for storing and disposing of drugs and biologicals in accordance with federal, state, and local laws.
(b) When not in use, a medication cart must be secured in a designated area.
(c) Small multiple-dose drug containers which are placed into another container must be labeled in a manner so that, if the two containers become separated, the small drug container still has a strip label attached containing the name of the resident and the prescription number.
(d) Self-administered medications may be kept in a locked cabinet in the resident's room. When medications are self-administered, the facility remains responsible for medication security, accurate information, and medication compliance.
(e) The facility must store each resident's drugs in their original containers.
(f) The facility must store medications under appropriate conditions of sanitation, temperature, light, moisture, ventilation, segregation, and security.
(g) Medications of deceased residents, medications that have passed the expiration date, and medications that have been discontinued must be securely stored and reconciled. These medications must be disposed of according to federal and state laws or rules on a quarterly basis. Discontinued drugs may be reinstated if reordered prior to destruction. These medications cannot be given to a family member or representative.
(h) When the directions for administration of a resident's medication have changed, but the existing supply of medication can still be administered accurately, the medication must not be destroyed. The facility must affix a change-of-direction ancillary sticker or similar system and use the remaining medication. The medication label must be updated at the time of next dispensing.

 

§19.1506 Drug Orders

 

(a) All drugs must be prescribed by the resident's physician or consulting physician, dentist, podiatrist, or other individual allowed by law to prescribe. If drug orders are verbal, they must be taken by a licensed nurse, pharmacist, physician assistant or a physician, and immediately recorded and signed by the person receiving the order. All drug orders must be counter-signed by the prescriber and returned to the chart in a timely manner.
(b) The facility may permit verbal orders for Schedule II drugs only in an emergency.
(c) Medications must be ordered and reordered on a timely basis so that no resident misses a dose.
(d) The facility must have written policies and procedures for stopping the administration of drugs.

 

§19.1507 Drug Release

 

(a) Medications must be released to residents only on the written or verbal authorization of the attending physician. When a resident is transferred directly to another nursing facility or discharged to home, the resident's medications must be released to the new facility or to the resident or his family, respectively.
(b) If a resident is leaving the facility on a furlough, enough prescription drugs to last throughout the furlough must be released. The facility must inventory Schedule II, III, and IV drugs in and out. Nonschedule drugs should be listed by name. The pharmacist must handle any division of the prescription, and all information on the original prescription label must appear on the furlough medication supply.

 

§19.1508 Drug Administration

 

(a) The facility must establish drug administration procedures to ensure that:

(1) drugs to be administered are checked against the physician's orders;
(2) the resident is identified before the administration of a drug;
(3) each resident has an individual medication record, where the dose of drug administered is properly recorded by the person who administered the drug;
(4) drugs and biologicals are prepared and administered by the same person, except under unit-of-use package distribution systems and as outlined in §19.418 of this title (relating to Self-Administration of Drugs); and
(5) drugs prescribed for one resident must not be administered to any other person.

(b) The facility nursing staff must report drug errors and adverse drug reactions to the resident's physician in a timely manner, as warranted by an assessment of the resident's condition, and record them in the resident's record. An incident report must be completed in accordance with §19.1923 of this title (relating to Incident or Accident Reporting). Medication errors include, but are not limited to, administering the wrong medication, administering at the wrong time, administering the wrong dosage strength, administering by the wrong route, omitting a medication, and/or administering to the wrong resident.
(c) Nursing facilities must have current medication reference texts or sources, including information on pediatric medications, dosages, sites, routes, techniques of drug administration, desired effects, and possible side effects, if facilities have pediatric residents.
(d) A licensed nurse may exercise professional judgment in the crushing of a medication, providing that the medication is not a time-released or enteric coated medication.

(1) If there is any question about crushing a medication for a resident, the licensed nurse must check with the treating physician, dispensing pharmacist, or consultant pharmacist.
(2) The crushed medication should be administered as soon as feasible once it has been added to another substance.
 

§19.1509 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; and
(3) Schedule V drugs are exempt from the requirements in paragraphs (1) and (2) of this section.
 

§19.1510 Emergency Medication Kits

 

Stocks of inventoried emergency medications may be kept in facilities.

(1) Emergency medication kits must be maintained in compliance with 22 TAC §291.121(b) (relating to Remote Pharmacy Services), with the exception of emergency medication kits in veterans homes, as defined by Natural Resources Code, §164.002. In veterans homes, a United States Department of Veterans Affairs pharmacy or another federally operated pharmacy may maintain emergency medication kits.
(2) Facilities must have contracts with the 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.

NFRLMC, Subchapter Q, Infection Control

 

 

Revision 12-2

 

§19.1601 Infection Control

 

(a) Infection Control Program. The facility must establish and maintain an infection control program designed to provide a safe, sanitary, and comfortable environment and to help prevent the development and transmission of disease and infection, including influenza, pneumococcal pneumonia, and tuberculosis. Under the program, the facility must:

(1) investigate, control, and prevent infections in the facility;
(2) decide what procedures, such as isolation, should be applied to an individual resident; and
(3) maintain a record of incidents and corrective actions related to infections.

(b) Preventing spread of infection.

(1) If the facility determines in accordance with its infection control program, that a resident needs isolation to prevent the spread of infection, the facility must isolate the resident. Residents with communicable disease must be provided acceptable accommodations according to current practices and policies for infection control. See §19.1(b)(4)(I) of this title (relating to Basis and Scope) for information concerning the Centers for Disease Control and Prevention (CDC) guidelines.
(2) The facility must prohibit employees with a communicable disease or infected skin lesions from direct contact with residents or their food, if direct contact will transmit the disease.
(3) The facility must require staff to wash their hands after each direct resident contact for which handwashing is indicated by accepted professional practice.
(4) The name of any resident with a reportable disease as specified in Title 25, Chapter 97, Subchapter A (relating to Control of Communicable Diseases) must be reported immediately to the city health officer, county health officer, or health unit director having jurisdiction, and appropriate infection control procedures must be implemented as directed by the local health authority.

(c) Communicable Diseases. The facility must have and implement written policies for the control of communicable diseases in employees and residents and must maintain evidence of compliance with local and state health codes and ordinances regarding employee and resident health status. (d) Tuberculosis.

(1) The facility must conduct and document an annual review that assesses the facility's current risk classification according to the current CDC Guidelines for Preventing the Transmission of Mycobacterium Tuberculosis in Health Care Settings.
(2) The facility must screen all employees before providing services in the facility, according to CDC guidelines. The facility must require all persons providing services under an outside resource contract to provide evidence of a current tuberculosis screening prior to providing services in the facility. The facility must document or keep a copy of the evidence provided.
(3) If the facility determines or suspects that an employee or person providing services under an outside resource contract has been exposed to or has a positive screening for a communicable disease, the facility must respond according to the current CDC guidelines and keep documentation of the action taken.
(4) If the facility determines that an employee or a person providing services under an outside resource contract has been exposed to a communicable disease, the facility must conduct and document a reassessment of the risk classification. The facility must conduct and document subsequent screening based upon the reassessed risk classification.
(5) The facility must screen all residents at admission in accordance with the attending physician's recommendations and current CDC guidelines. If the facility determines or suspects that a resident has been exposed to a communicable disease or has a positive screening, the facility must respond according to the current CDC guidelines and attending physician's recommendations, and keep documentation of the response.

(e) Vaccinations.

(1) 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.
(A) The policy must:
(i) require an employee, contractor, or other individual with privileges 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, contractor, or other individual presents to residents by the employee's, contractor's, or other individual's routine and direct exposure to residents;
(ii) specify the vaccines an employee, contractor, or other individual with privileges to provide direct resident care is required to receive in accordance with clause (i) of this subparagraph;
(iii) include procedures for the facility to verify that an employee, contractor, or other individual with privileges to provide direct resident care has complied with the policy;
(iv) include procedures for the facility to exempt an employee, contractor, or other individual with privileges to provide direct resident care from the required vaccines for the medical conditions identified as contraindications or precautions by the CDC;
(v) for an employee, contractor, or other individual with privileges to provide direct resident care who is exempt from the required vaccines, include procedures the employee, contractor, or other individual must follow to protect residents from exposure to vaccine preventable diseases, such as the use of protective equipment, such as gloves and masks, based on the level of risk the employee, contractor, or other individual presents to residents by the employee's, contractor's, or other individual's routine and direct exposure to residents;
(vi) prohibit discrimination or retaliatory action against an employee, contractor, or other individual with privileges to provide direct resident care who is exempt from the required vaccines for the medical conditions identified as contraindications or precautions by the CDC, except that required use of protective medical equipment, such as gloves and masks, may not be considered retaliatory action;
(vii) require the facility to maintain a written or electronic record of each employee's, contractor's, or other individual's compliance with or exemption from the policy; and
(viii) include disciplinary actions the facility may take against an employee, contractor, or other individual with privileges to provide direct resident care who fails to comply with the policy.
(B) The policy may:
(i) include procedures for an employee, contractor, or other individual with privileges to provide direct resident care to be exempt from the required vaccines based on reasons of conscience, including a religious beliefs; and
(ii) prohibit an employee, contractor, or other individual with privileges to provide direct resident care who is exempt from the required vaccines from having contact with residents during a public health disaster, as defined in Texas Health and Safety Code, §81.003 (relating to Definitions).
(2) A facility must offer vaccinations to residents in accordance with an immunization schedule adopted by the Advisory Committee on Immunization Practices of the CDC.
(A) Pneumococcal vaccinations for residents. The facility must offer pneumococcal vaccination to a resident 65 years of age or older who has not received the vaccination and to a resident younger than 65 years of age, who has not received the vaccination but is a candidate for it because of chronic illness. A pneumococcal vaccination must be offered to a current resident of a facility and to a new resident at the time of admission. A vaccination must be completed unless a physician has indicated that the vaccination is medically contraindicated or the resident refuses the vaccination.
(i) The facility must develop and implement policies and procedures to ensure that the resident or resident's legal representative receives education regarding the benefits and potential side effects of the pneumococcal vaccination. When a pneumococcal vaccination is offered, the facility must show in the resident medical record that this was provided.
(ii) Based on an assessment and practitioner recommendation, a second pneumococcal vaccination may be given five years after the first pneumococcal vaccination, unless medically contraindicated or the resident or the resident's legal representative refuses the second vaccination.
(B) Influenza vaccinations for residents and employees. The facility must offer influenza vaccinations to residents and employees in contact with residents, unless the vaccination is medically contraindicated by a physician or the employee or resident has refused the vaccination.
(i) Influenza vaccinations for all residents and employees in contact with residents must be completed by November 30 of each year. Employees hired or residents admitted after this date and during the influenza season (through March of each year) must receive influenza vaccinations, unless medically contraindicated by a physician or the employee, the resident, or the resident's legal representative refuses the vaccination.
(ii) The facility must develop and implement policies and procedures that ensure that the resident or resident's legal representative receives education regarding the benefits and potential side effects of the influenza vaccination. When an influenza vaccination is offered, the facility must show in the resident medical record that this education was provided.
(C) Hepatitis B vaccinations for employees. The facility must develop a method to identify employees at risk of directly contacting blood or potentially infectious materials. The facility must offer an employee identified as being at risk of directly contacting blood or potentially infectious materials a hepatitis B vaccine within 10 days of employment. If the employee initially declines the hepatitis B vaccination but at a later date, while still at risk of directly contacting blood or potentially infectious materials, decides to accept the vaccination, the facility must make the vaccination available within 10 days after the employee decides to accept that vaccination. (D) Documentation of receipt, refusal, or contraindication of vaccination.
(i) Except as provided in clause (ii) of this subparagraph, the medical record for each resident must show the date of the receipt or refusal of the annual influenza vaccination and the pneumococcal vaccination.
(ii) If a resident does not receive or refuse a vaccination, the resident's medical record must show the resident did not receive the annual influenza vaccination or the pneumococcal vaccination due to a medical contraindication.

(f) Linens. Personnel must handle, store, process, and transport linens so as to prevent the spread of infection and in accordance with §19.325 of this chapter (relating to Linen).
(g) The Quality Assessment and Assurance Committee as described in §19.1917 of this chapter (relating to Quality Assessment and Assurance) will monitor the infection control program.

 

§19.1602 Universal Precautions

 

Universal precautions must be used in the care of all residents. Facilities are responsible for complying with OccupationalSafety Hazards Administration (OSHA) regulations found at 29 Code of Federal Regulations, §1910.1030 (relating to BloodbornePathogens).

 

NFRLMC, Subchapter R, Physical Plant and Evironment

Revision 18-3

 

§19.1701 Physical Environment

The facility must be designed, constructed, equipped, and maintained to protect the health and ensure the safety of residents, personnel, and the public.

(1) Life safety from fire.

(A) The facility must meet the applicable provisions of NFPA 101 as designated by the federal law and regulations.
(B) After consideration of the findings of HHSC, CMS may waive specific provisions of NFPA 101 which, if rigidly applied, would result in unreasonable hardship on the facility, but only if the waiver does not adversely affect the health and safety of residents or personnel.

(2) Emergency power.

(A) An emergency electrical power system must supply power adequate at least for lighting all entrances and exits; equipment to maintain the fire detection, alarm, and extinguishing systems;
and any systems or equipment whose failure is likely to cause major injury or death to a resident if the normal electrical supply is interrupted.
(B) When systems or equipment whose failure is likely to cause major injury or death to a resident are used, the facility must provide emergency electrical power with an emergency generator defined in NFPA 99 located on the premises.

(3) Space and equipment. The facility must:

(A) provide sufficient space and equipment in dining, health services, recreation, living, and program areas to enable staff to provide residents with needed services as required by these standards and as identified in each resident's plan of care; and
(B) maintain all essential mechanical, electrical, and patient care equipment in safe operating condition; and
(C) conduct regular inspections of all bed frames, mattresses, and bed rails, if any, as part of a regular maintenance program to identify areas of possible entrapment. When bed rails and mattresses are used and purchased separately from the bed frame, the facility must ensure that the bed rails, mattress, and bed frame are compatible.

(4) Resident rooms. Resident rooms must be designed and equipped for adequate nursing care, comfort, and privacy of residents.

(A) Bedrooms must:

(i) accommodate no more than four residents for a facility that receives approval of construction or reconstruction plans by state and local authorities or are newly certified before November 28, 2016;
(ii) accommodate no more than two residents for a facility that receives approval of construction or reconstruction plans by state and local authorities or are newly certified on or after November 28, 2016;
(iii) measure at least 80 square feet per resident in multiple resident bedrooms and at least 100 square feet in single resident rooms;
(iv) have direct access to an exit corridor;
(v) be designed or equipped to ensure full visual privacy for each resident;
(vi) in facilities initially certified after March 31, 1992, except in private rooms, have ceiling-suspended curtains for each bed, which extend around the bed to provide total visual privacy, in combination with adjacent walls and curtain;
(vii) have at least one window to the outside; and
(viii) have a floor at or above grade level.

(B) The facility must provide each resident with:

(i) a separate bed of proper size and height for the safety and convenience of the resident;
(ii) a clean, comfortable mattress;
(iii) bedding appropriate to the weather and climate; and
(iv) functional furniture appropriate to the resident's needs and individual closet space in the resident's bedroom with clothes racks and shelves accessible to the resident.

(C) HHSC may permit variations in requirements specified in paragraph (1)(A) and (B) of this section relating to rooms in individual cases when the facility demonstrates in writing that the variations:

(i) are required by the special needs of the residents; and
(ii) will not adversely affect residents' health and safety.

(5) Bathroom. Each resident room must be equipped with or located near toilet and bathing facilities. For a facility that receives approval of construction from state and local authorities or are newly certified on or after November, 28, 2016, each resident room must have its own bathroom equipped with at least a commode and sink.
(6) Nurse call system. The facility must be adequately equipped to allow residents to call for staff assistance through a communication system which relays the call directly to a staff member or to a centralized staff work area:

(A) before November 28, 2019, from each resident’s room;
(B) beginning November 28, 2019, from each resident’s bedside; and
(C) from toilet and bathing facilities.

(7) Dining and resident activities. The facility must provide one or more rooms designated for resident dining and activities. These rooms must be:

(A) well-lighted;
(B) well ventilated, with nonsmoking areas identified;
(C) adequately furnished; and
(D) sufficiently spacious to accommodate all activities.

(8) Other environmental conditions. The facility must provide a safe, functional, sanitary, and comfortable environment for residents, staff, and the public. The facility must:

(A) establish procedures to ensure that water is available to essential areas when there is a loss of normal water supply;
(B) have adequate outside ventilation by means of windows, mechanical ventilation, or a combination of the two;
(C) equip corridors with firmly secured handrails on each side;
(D) maintain an effective pest control program so that the facility is free of pests and rodents; and
(E) establish policies, according to applicable federal, state, and local laws and regulations, regarding smoking, smoking areas, and smoking safety that also take into account non-smoking residents.

NFRLMC, Subchapter T, Administration

Revision 18-3

 

§19.1901 Administration

A nursing facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.

(1) Licensure. A nursing facility (NF) must be licensed by the Texas Department of Human Services (DHS) as described in §19.201 of this title (relating to Criteria for Licensing).
(2) Compliance with federal, state, and local laws and professional standards. The facility must operate and provide services in compliance with all applicable federal, state, and local laws, regulations, and codes, and with accepted professional standards and principles that apply to professionals providing services in such a facility.
(3) Medicaid-certified facilities' relationship to other Health and Human Services regulations. In addition to compliance with the regulations set forth in these Nursing Facility Requirements for Licensure and Certification, as Medicaid providers, facilities are obliged to meet the applicable provisions of other federal regulations, including but not limited to those pertaining to nondiscrimination on the basis of race, color, or national origin (45 Code of Federal Regulations, Part 80), nondiscrimination on the basis of handicap (45 Code of Federal Regulations, Part 84), nondiscrimination on the basis of age (45 Code of Federal Regulations, Part 91), protection of human subjects of research (45 Code of Federal Regulations, Part 46), and fraud and abuse (42 Code of Federal Regulations, Part 455). Although these regulations are not in themselves considered requirements under 42 Code of Federal Regulations 483, their violation may result in the termination or suspension of payment with federal funds, or the refusal to grant or continue payment with federal funds.

 

§19.1902 Governing Body

(a) The facility must have a governing body, or designated persons functioning as a governing body that is legally responsible for establishing and implementing policies regarding the management and operation of the facility. The governing body must have periodically updated written policies and procedures that are formally adopted and dated, specifying and governing all services. The policies and procedures must be available to all of the facility's governing body's members, staff, residents, family or legal representatives of residents, and the public. The governing body must:

(1) designate a person to exercise the administrator's authority when the facility does not have an administrator. The facility must secure a licensed nursing home administrator within 30 days; and
(2) ensure that a person designated as being in authority notifies the Texas Department of Human Services immediately when the facility does not have an administrator.

(b) The facility must operate under the supervision of a nursing facility administrator who is:

(1) licensed by the Texas Board of Nursing Facility Administrators;
(2) responsible for management of the facility; and
(3) required to work at least 40 hours per week on administrative duties.

(c) The administrator must be accountable to the governing body for overall management of the nursing facility.

 

§19.1903 Required Training of Nurse Aides

See also §19.1929 of this title (relating to Staff Development).

(1) Definitions. The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:
(A) Licensed health professional — A physician; physician assistant; nurse practitioner; physical, speech, or occupational therapist; physical or occupational therapy assistant; registered professional nurse; licensed practical nurse; or licensed or certified social worker.
(B) Nurse aide — An individual providing nursing or nursing-related services to residents in a facility under the supervision of a licensed nurse. This definition does not include an individual who is a licensed health professional or a registered dietitian or someone who volunteers such services without monetary compensation.
(2) General rule. A facility must not use any individual working in the facility as a nurse aide for more than four months, on a full-time basis, unless:
(A) that individual is competent to provide nursing and nursing related services, and
(B) that individual:
(i) has completed a training and competency evaluation program, or a competency evaluation program approved by the state as meeting the requirements of 42 Code of Federal Regulations §§483.151-493.154; or
(ii) has been deemed or determined competent as provided in 42 Code of Federal Regulations §483.150(a) and (b).
(3) Nonpermanent employees. A facility must not use on a temporary, per diem, leased, or any basis other than a permanent employee any individual who does not meet the requirements in paragraphs (2)(A) and (B) of this section.
(4) Competency. A facility must not use any individual who has worked less than four months as a nurse aide in that facility unless the individual:
(A) is a full-time employee in a state-approved training and competency evaluation program;
(B) has demonstrated competence through satisfactory participation in a state-approved nurse aide training and competency evaluation program, or competency evaluation program; or
(C) has been deemed or determined competent as provided in 42 Code of Federal Regulations §483.150(a) and (b).
(5) Registry verification. Before allowing an individual to serve as a nurse aide, a facility must receive registry verification that the individual has met competency evaluation requirements and is not designated in the registry as having a finding concerning abuse, neglect or mistreatment of a resident, or misappropriation of a resident's property, unless:
(A) the individual is a full-time employee in a training and competency evaluation program approved by the state; or
(B) the individual can prove that he has recently successfully completed a training and competency evaluation program, or competency evaluation program approved by the state and has not yet been included in the registry. Facilities must follow up to ensure that such an individual actually becomes registered.
(6) Multi-state registry verification. Before allowing an individual to serve as a nurse aide, a facility must seek information from every state registry, established under §1819(e)(2)(A) or §1919(e)(2)(A) of the Social Security Act, that the facility believes will include information about the individual.
(7) Required retraining. If, since an individual's most recent completion of a training and competency evaluation program, there has been a continuous period of 24 consecutive months during none of which the individual provided nursing or nursing-related services for monetary compensation, the individual must complete a new training and competency evaluation program or a new competency evaluation program.
(8) Regular in-service education. The facility must complete a performance review of every nurse aide at least once every 12 months, and must provide regular in-service education based on the outcome of these reviews. The in-service training must:
(A) be sufficient to ensure the continuing competence of nurse aides, but must be no less than 12 hours per year;
(B) address areas of weakness as determined in nurse aides' performance reviews and may address the special needs of residents as determined by the facility staff; and
(C) for nurse aides providing services to individuals with cognitive impairments, also address the care of the cognitively impaired.
(9) The facility must comply with the nurse aide training and registry rules found in Title 40, Texas Administrative Code, Chapter 94 (relating to Nurse Aides).

 

§19.1904 Proficiency of Nurse Aides

The facility must ensure that nurse aides are able to demonstrate competency in skills and techniques necessary to care for residents' needs, as identified through resident assessments, and described in the plan of care.

 

§19.1905 Staff Qualifications

(a) The facility must employ on a full-time, part-time, or consultant basis those professionals necessary to carry out the provisions of these requirements of participation.
(b) Professional staff must be licensed, certified or registered in accordance with applicable state laws.

 

§19.1906 Use of Outside Resources

(a) If the facility does not employ a qualified professional to furnish a specific service to be provided by the facility, the facility must have that service furnished to residents by a person or agency outside the facility under an agreement described in subsection (b) of this section.
(b) Agreements pertaining to services furnished by outside resources must specify in writing that the facility assumes responsibility for:

(1) obtaining services that meet professional standards and principles; and
(2) the timeliness of the services.

(c) Except for those members of the comprehensive assessment team, the facility allows outside resources access to the clinical records of only those residents who have orders for the service(s) to be provided.

 

§19.1907 Medical Director

(a) The nursing facility must designate a physician to serve as medical director.
(b) The medical director is responsible for:

(1) implementation of resident care policies (see §19.1922 of this title (relating to Resident Care Policies)); and
(2) the coordination of medical care in the facility.

 

 

§19.1908 Laboratory Services

(a) The facility must provide or obtain clinical laboratory services to meet the needs of its residents. The facility is responsible for the quality and timeliness of the services.

(1) If the facility provides its own laboratory services, the services must meet the applicable conditions for coverage of the services furnished by laboratories specified in 42 Code of Federal Regulations, Part 493.
(2) If the facility provides blood bank and transfusion services, it must meet the requirements for laboratories specified in 42 Code of Federal Regulations, Part 493.
(3) If the laboratory chooses to refer specimens for testing to another laboratory, the referral laboratory must be approved or licensed to test specimens in the appropriate specialties and/or subspecialties of services in accordance with 42 Code of Federal Regulations, Part 493.
(4) If the facility does not provide laboratory services on site, it must have an agreement to obtain these services only from a laboratory that meets the requirements of 42 Code of Federal Regulations, Part 493, or from a physician's office.

(b) The facility must:

(1) provide or obtain laboratory services only when ordered by the attending physician;
(2) promptly notify the attending physician of the findings;
(3) assist the resident in making transportation arrangements to and from the source of service, if the resident needs assistance; and
(4) file in the resident's clinical record laboratory reports that are dated and contain the name and address of the issuing laboratory.

 

 

§19.1909 Radiology and Other Diagnostic Services

(a) The nursing facility must provide or obtain radiology and other diagnostic services to meet the needs of its residents. The facility is responsible for the quality and timeliness of the services.

(1) If the facility provides its own diagnostic services, the services must meet the applicable conditions of participation for hospitals contained in 42 Code of Federal Regulations, §482.26.
(2) If the facility does not provide its own diagnostic services, it must have an agreement to obtain these services from a provider or supplier that is approved to provide these services under Medicare.

(b) The facility must:

(1) provide or obtain radiology and other diagnostic services only when ordered by the attending physician;
(2) promptly notify the attending physician of the findings;
(3) assist the resident in making transportation arrangements to and from the source of service, if the resident needs assistance; and
(4) file in the resident's clinical record signed and dated reports of x-ray and other diagnostic services.

 

 

§19.1910 Clinical Records

(a) The facility must maintain clinical records on each resident, in accordance with accepted professional health information management standards and practices, that are:

(1) complete;
(2) accurately documented;
(3) readily accessible;
(4) systematically organized; and
(5) protected from unauthorized release.

(b) Clinical records must be retained for:

(1) five years after medical services end; or
(2) for a minor, three years after a resident reaches legal age under Texas law.

(c) The facility must safeguard clinical record information against loss, destruction, or unauthorized use;
(d) The facility must keep confidential all information contained in the resident's records, regardless of the form or storage method of the records, except when release is required by:

(1) transfer to another health care institution;
(2) law or this chapter;
(3) third party payment contract; or
(4) the resident.

 

§19.1911 Contents of the Clinical Record

(a) A resident's clinical record must meet all documentation requirements in the Texas Health and Human Services Commission rule at 1 TAC §371.214 (relating to Resource Utilization Group Classification System).
(b) The clinical record of each resident must contain:

(1) a face sheet that contains the attending physician's current mailing address and telephone numbers;
(2) sufficient information to identify and care for the resident, to include at a minimum:
(A) full name of resident;
(B) full home/mailing address;
(C) social security number;
(D) health insurance claim numbers, if applicable;
(E) date of birth; and
(F) clinical record number, if applicable;
(3) a record of the resident's assessments, including 15 months of MDS records;
(4) the comprehensive, interdisciplinary plan of care and services provided (see also §19.802 of this chapter (relating to Comprehensive Care Plans));
(5) a permanency plan, for residents younger than 22 years of age;
(6) the results of any Preadmission Screening and Resident Review;
(7) signed and dated clinical documentation from all health care practitioners involved in the resident's care, with each page identifying the name of the resident for whom the clinical care is intended;
(8) any directives or medical powers of attorney as described in §19.419 of this chapter (relating to Advance Directives);
(9) discharge information in accordance with §19.803 of this chapter (relating to Discharge Summary (Discharge Plan of Care)) and a physician discharge summary, to include, at least, dates of admission and discharge, admitting and discharge diagnoses, condition on discharge, and prognosis, if applicable;
(10) at admission or within 14 days after admission, documentation of an initial medical evaluation, including history, physical examination, diagnoses and an estimate of discharge potential and rehabilitation potential, and documentation of a previous annual medical examination;
(11) authentication of a hospital diagnosis, which may be in the form of a signed hospital discharge summary, a signed report from the resident's hospital or attending physician, or a transfer form signed by the physician;
(12) the physician's signed and dated orders, including medication, treatment, diet, restorative and special medical procedures, and routine care to maintain or improve the resident's functional abilities (required for the safety and well-being of the resident), which must not be changed either on a handwritten or computerized physician's order sheet after the orders have been signed by the physician unless space allows for additional orders below the physician's signature, including space for the physician to sign and date again;
(13) arrangements for the emergency care of the resident in accordance with §19.1204 of this chapter (relating to Availability of Physician for Emergency Care);
(14) observations made by nursing personnel according to the time frames specified in §19.1010 of this chapter (relating to Nursing Practices);
(15) items as specified on the MDS assessment;
(16) current information, including:
(A) PRN medications and results;
(B) treatments and any notable results;
(C) physical complaints, changes in clinical signs and behavior, mental and behavioral status, and all incidents or accidents;
(D) flow sheets, which may include bathing, restraint observation or release documentation, elimination, fluid intake, vital signs, ambulation status, positioning, continence status and care, and weight;
(E) a record of dietary intake, including deviations from normal diet, rejection of substitutions, and physician's ordered snacks or supplemental feedings;
(F) a record of the date and hour a drug or treatment is administered;
(G) documentation of a special procedure performed for the safety and well-being of the resident, and
(17) a copy of the most recent court order and letters of guardianship appointing a guardian of the resident or the resident’s estate received by the facility.

 

§19.1912 Additional Clinical Record Service Requirements

(a) Index of admissions and discharges. The facility must maintain a permanent, master index of all residents admitted to and discharged from the facility. This index must contain at least the following information concerning each resident:

(1) name of resident (first, middle, and last);
(2) date of birth;
(3) date of admission;
(4) date of discharge; and
(5) social security, Medicare, or Medicaid number.

(b) Facility closure. In the event of closure of a facility, change of ownership or change of administrative authority, the new management must maintain documented proof of the medical information required for the continuity of care of all residents. This documentation may be in the form of copies of the resident's clinical record or the original clinical record. In a change of ownership, the two parties will agree and designate in writing who will be responsible for the retention and protection of the inactive and closed clinical records.
(c) Method of recording/correcting information. All resident care information must be recorded in ink or permanent print except for the medication/treatment diet section of the care plan. Correction of errors will be in accordance with accepted health information management standards.

(1) Erasures are not allowed on any part of the clinical record, with the exception of the medication/treatment/diet section of the resident care plan.
(2) Correction of errors will be in accordance with accepted health information management standards.

(d) Required record retention. Periodic thinning of active clinical records is permitted; however, the following items must remain in the active clinical record:

(1) current history and physical,
(2) current physician's orders and progress notes,
(3) current resident assessment instrument (RAI) and subsequent quarterly reviews; in Medicaid-certified facilities, all RAIs and Quarterly Reviews for the prior 15-month period,
(4) current care plan,
(5) most recent hospital discharge summary or transfer form
(6) current nursing and therapy notes,
(7) current medication and treatment records,
(8) current lab and x-ray reports, and
(9) the admission record; and
(10) the current permanency plan.

(e) Readmissions.

(1) If a resident is discharged for 30 days or less and readmitted to the same facility, upon readmission, to update the clinical record, staff must:
(A) obtain current, signed physician's orders;
(B) record a descriptive nurse note, giving a complete assessment of the resident's condition;
(C) include any changes in diagnoses, etc.;
(D) obtain signed copies of the hospital or transferring facility history and physical and discharge summary. A transfer summary, containing this information is acceptable;
(E) complete a new RAI and update the comprehensive care plan if evaluation of the resident indicates a significant change which appears to be permanent. If no such change has occurred, then update only the resident comprehensive care plan; and
(F) comply with §19.805 of this title (regarding Permanency Planning for Pediatric Residents).
(2) A new clinical record must be initiated if the resident is a new admission or has been discharged for over 30 days.

(f) Signatures.

(1) The use of electronic data transmission of facsimiles (faxing) is acceptable for sending and receiving health care documents, including the transmission of physicians' orders. Long term care facilities may utilize electronic transmission if they adhere to the following requirements:
(A) The facility must implement safeguards to assure that faxed documents are directed to the correct location to protect confidential health information.
(B) All faxed documents must be signed by the author before transmission.
(2) Stamped signatures are acceptable for all health care documents requiring a physician's signature, if the person using the stamp sends a letter of intent which specifies that he will be the only one using the stamp, and then signs the letter with the same signature as the stamp.
(3) The facility must maintain all letters of intent on file and make them available to representatives of the Texas Department of Human Services (DHS) upon request.
(4) Use of a master signature legend in lieu of the legend on each form for nursing staff signatures of medication, treatment, or flow sheet entries is acceptable under the following circumstances:
(A) Each nursing employee documenting on medication, treatment, or flow sheets signs his full name, title, and initials on the legend.
(B) The original master legend is kept in the clinical records office or director of nurses' office.
(C) A current copy of the legend is filed at each nurses station.
(D) When a nursing employee leaves employment with the facility, his name is deleted from the list by lining through it and writing the current date by the name.
(E) The facility updates the master legend as needed for newly hired and terminated employees.
(F) The master signature legend must be retained permanently as a reference to entries made in clinical records.

(g) Destruction of Records. When resident records are destroyed after the retention period is complete, the facility must shred or incinerate the records in a manner which protects confidentiality. At the time of destruction, the facility must document the following for each record destroyed:

(1) resident name;
(2) medical record number, if used;
(3) social security number, Medicare/Medicaid number, or the date of birth; and
(4) date and signature of person carrying out disposal.

(h) Confidentiality. The facility must develop and implement policies and procedures to safeguard the confidentiality of medical record information from unauthorized access.

(1) Except as provided in paragraph (2) of this subsection, the facility must not allow access to a resident's clinical record unless a physician's order exists for supplies, equipment, or services provided by the entity seeking access to the record.
(2) The facility must allow access and/or release confidential medical information under court order or by written authorization of the resident or his or her legal representative (see §19.407 of this title (relating to Privacy and Confidentiality)).

 

§19.1913 Clinical Records Service Supervisor

The facility must designate in writing a clinical records supervisor who has the authority, responsibility, and accountability for the functions of the clinical records service. The clinical records supervisor must be:

(1) A registered health information administrator (RHIA) or registered health information technician (RHIT); or
(2) An individual with experience appropriate to the scope and complexity of services performed as determined by the Texas Department of Human Services, and who receives consultation at a minimum of every 180 days from an RHIA or RHIT.

 

§19.1914 Disaster and Emergency Preparedness

(a) Definitions. In this section:

(1) "emergency situation" means an impending or actual situation that:
(A) interferes with normal activities of a facility and its residents;
(B) may:
(i) cause injury or death to a resident or staff member of the facility; or
(ii) cause damage to facility property;
(C) requires the facility to respond immediately to mitigate or avoid the injury, death, damage or interference; and
(D) does not include a situation that arises from the medical condition of a resident, such as cardiac arrest, obstructed airway, or cerebrovascular accident;
(2) "plan" refers to a facility's emergency preparedness and response plan; and
(3) "receiving facility" means a facility or location 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 printed copy of the plan in a central location that is accessible to all staff at all times and at a work station of each personnel supervisor who has responsibilities under the plan;
(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 all potential internal and external emergency situations relevant to the facility's operations and geographical area, such as a fire, failure of heating and cooling systems, a power outage, a bomb threat, an explosion, a hurricane, a tornado, a flood, extreme snow and ice conditions for the area, a wildfire, terrorism, a hazardous materials accident, or a thunderstorm with a risk for harm to persons or property;
(2) include a description of the facility's resident population;
(3) include a section for each core function of emergency management, as described in subsection (d) of this section, that is based on a facility's decision to either shelter-in-place or evacuate during an emergency situation;
(4) include a section for a fire safety plan that complies with §19.326 of this chapter (relating to Safety Operations); and
(5) include a section for self reporting incidents that complies with subsection (f) of this section.

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

(1) Direction and control. The facility's plan must contain a section for direction and control that:
(A) designates by name or title the emergency preparedness coordinator (EPC), who is the facility staff person with the authority to manage the facility's response to an emergency situation in accordance with the plan, and includes the EPC's current phone number;
(B) designates by name or title the alternate EPC, who is the facility staff person with the authority to act as the EPC if the EPC is unable to serve in that capacity, and includes the alternate EPC's current phone number;
(C) documents the name and contact information for the local emergency management coordinator (EMC) for the area where the facility is located, as identified by the office of the local mayor or county judge;
(D) includes procedures for notifying the local EMC of the execution of the plan;
(E) includes a plan for coordinating a staffing response to an emergency situation; and
(F) includes a plan for guiding residents to a safe location that is based on the type of emergency situation occurring and a facility's decision to either shelter-in-place or evacuate during an emergency situation.
(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) addresses monitoring local news and weather reports regarding a disaster or potential disaster taking into consideration factors such as geographic specific natural disasters, whether a disaster is likely to be addressed or forecast in the reports, and the conditions, natural or otherwise, that would cause staff to monitor news and weather reports for a disaster.
(3) Communication. A facility's plan must contain a section for communication that:
(A) identifies the facility's primary mode of communication to be used during an emergency situation and the facility's alternate mode of communication to be used in the event of power failure or the loss of the facility's primary mode of communication in an emergency situation;
(B) requires posting of the emergency contact number for the local fire department, ambulance, and police on or near each telephone in the facility in communities where a "911" emergency management system is unavailable;
(C) includes procedures for maintaining a current list of telephone numbers for residents' responsible parties;
(D) includes procedures for maintaining a current list of telephone numbers for pre-arranged receiving facilities;
(E) includes procedures for maintaining a current list of telephone numbers for the facility's staff;
(F) identifies the location of the lists described in subparagraphs (C) through (E) of this paragraph and in subsection (d)(1)(A) and (B) of this section;
(G) 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 and residents' responsible parties about an impending or actual evacuation;
(H) provides a method for a person to obtain resident information during an emergency situation; and
(I) includes procedures for the facility to maintain communication with:
(i) facility staff involved in an emergency situation;
(ii) a receiving facility; and
(iii) the driver of a vehicle transporting residents, medication, 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 includes:
(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 DADS Regulatory Services regional office for the area in which the facility is located by telephone immediately after the EPC makes a decision to shelter-in-place:
(i) before, during, or after a hurricane or flood impacts a facility, if the risk assessment identified a hurricane or flood as a potential emergency situation; or
(ii) after any other type of emergency situation that has caused property damage to a facility;
(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) identifies evacuation destinations and routes, and includes a map that shows the destinations and routes;
(B) includes procedures for implementing a decision to evacuate residents to a receiving facility;
(C) includes a current copy of an agreement with a receiving facility, outlining arrangements for receiving residents in the event of an evacuation, if the evacuation destination identified in accordance with subparagraph (B) of this paragraph is a receiving facility that is not owned by the same entity as the evacuating facility;
(D) includes procedures for:
(i) ensuring facility staff accompany evacuating residents;
(ii) ensuring that residents and facility staff present in the building have been evacuated;
(iii) accounting for residents and facility staff 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 after an evacuation;
(vii) determining if it is safe to re-enter and occupy the building after an evacuation; and
(E) includes procedures for notifying the local EMC regarding an evacuation of the facility;
(F) includes procedures for notifying DADS Regulatory Services regional office for the area in which the facility is located by telephone immediately after the EPC makes a decision to evacuate; and
(G) includes procedures for notifying DADS Regulatory Services regional office for the area in which the facility is located by telephone immediately when residents have returned to the facility after an evacuation.
(6) Transportation. A facility's plan must contain a section for transportation that:
(A) arranges for a sufficient number of vehicles to safely evacuate all residents;
(B) identifies facility staff designated to drive a facility owned, leased or rented vehicle during an evacuation;
(C) includes procedures for safely transporting residents, facility staff involved in an evacuation; and
(D) includes procedures for safely transporting and having 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 the types of services used by residents, such as dialysis, oxygen, respirator care, or hospice services; and
(B) ensures the resident's needs identified in subparagraph (A) of this paragraph are met during an emergency situation.
(8) Resource Management. A facility's plan must contain a section for resource management that:
(A) includes a plan for identifying medications, records, food, water, equipment and supplies needed during an emergency situation;
(B) identifies facility staff who are assigned to locate the items in subparagraph (A) of this paragraph and who must ensure the transportation of the items during an emergency situation; and
(C) includes procedures to ensure medications are secure and maintained at the proper temperature during an emergency situation.

(e) Training. The facility must:

(1) train a facility staff member on the staff member's responsibilities under the plan within 30 days after assuming job duties;
(2) train a facility staff member on the staff member's responsibilities under the plan at least annually and when the staff member's responsibilities under the plan change; and
(3) conduct one unannounced annual drill 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) Self-Reported Incidents.

(1) A facility must report a fire to DADS as follows:
(A) by calling 1-800-458-9858 immediately after the fire; and
(B) by submitting a completed DADS form titled "Fire Report for Long Term Care Facilities" within 15 calendar days after the fire.
(2) A facility must report an emergency situation that caused the death or serious injury of a resident to DADS as follows:
(A) by calling 1-800-458-9858 immediately after the death or serious injury; and
(B) by submitting a completed DADS form titled "DADS Provider Investigation Report" within 5 working days after making the telephone report required by subparagraph (2)(A) of this subsection.

 

§19.1915 Transfer Agreement

(a) The facility must have in effect a written transfer agreement with one or more hospitals that reasonably assures that:

(1) Residents will be transferred from the facility to the hospital and ensured of timely admission to the hospital when transfer is medically appropriate as determined by the attending physician.
(2) Medical and other information needed for care and treatment of residents, and when the transferring facility deems it appropriate, for determining whether such residents can be adequately cared for in a less expensive setting than either the facility or the hospital, will be exchanged between the institutions.
(3) For Medicaid-certified facilities, the hospitals must be approved for participation under the Medicare and Medicaid programs.

(b) In addition, to ensure continuity of care, the transfer agreement should:

(1) provide for prompt diagnostic and other medical services;
(2) ensure accountability for a resident's personal effects at the time of transfer;
(3) specify the steps needed to transfer a resident in a prompt, safe and efficient manner; and
(4) provide for supplying, at the time of transfer, a summary of administrative, social, medical, and nursing information to the facility to which the resident is transferred.

(c) If the board and/or governing body for a long-term care facility and a hospital are the same, the controlling entity must have written procedures outlining how transfers will occur.
(d) The facility is considered to have a transfer agreement in effect if DHS determines that the facility attempted in good faith to enter into an agreement with a hospital sufficiently close to the facility to make transfer feasible but could not, and it is in the public interest not to enforce this requirement. The facility must document in writing its good faith effort to enter into an agreement.

 

§19.1916 Respite Care

Facilities offering respite care must meet the requirements of this chapter, except as provided in paragraph (4) of this section.

(1) Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.
(A) Plan of care — A written description of the medical care or the supervision and nonmedical care needed by an individual during respite care.
(B) Respite care — The provision by a facility to an individual, for not more than two weeks for each stay in the facility, of room, board, and care at the level ordinarily provided for permanent residents.
(2) Plan of care. The facility and the individual arranging respite care must agree on the plan of care, and the plan must be filed at the facility before the facility admits the individual. (A) The plan of care must be signed by:
(i) a licensed physician if the individual needing care requires medical care or treatment; or
(ii) the individual arranging the care if medical care or treatment is not required.
(B) The facility may keep a plan of care for an individual for six months from the date on which it is developed. During that period, the facility may admit the individual as frequently as needed.
(3) Notification. A facility must notify the Texas Department of Human Services (DHS) in writing that it offers respite services.
(4) Inspections. During licensing or certification inspections, or at other times DHS determines necessary, DHS inspects a facility's records of respite care services, physical accommodations for respite care, and the plan of care records to ensure that the respite care services comply with the certification requirements of this chapter, with the following exceptions:
(A) The clinical record of each respite care resident must contain:
(i) general identifying information necessary to care for the individual and maintain his clinical record;
(ii) resident assessment and care plan according to facility policy;
(iii) progress notes and/or flow sheets which document care and services;
(iv) reports of diagnostic or lab studies;
(v) physician's orders; and
(vi) discharge and readmission information as required by facility policy for respite care services.
(B) Resident assessment requirements of §19.801 of this title (relating to Resident Assessment) apply to respite care services only on the 14th day of care.
(C) The clinical records requirement found at §19.1912(e) of this title (relating to Additional Clinical Record Service Requirements) does not apply.
(5) Suspension. DHS may require an institution to cease providing respite care if DHS determines that the respite care does not meet the requirement of this chapter and that the facility cannot comply with those requirements in the respite care it provides. DHS may suspend the license of a facility that continues to provide respite care after receiving a written order from DHS to cease.
(6) 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 nurse-to-resident ratio must include any individual receiving respite care services regardless of the number of hours that the individual spends in the facility.

 

§19.1917 Quality Assessment and Assurance

(a) The facility must maintain a Quality Assessment and Assurance Committee consisting of:

(1) the director of nursing services;
(2) a physician designated by the facility; and
(3) at least three other members of the facility's staff.

(b) The Quality Assessment and Assurance Committee:

(1) meets at least quarterly to identify issues with respect to which quality assessment and assurance activities are necessary; and
(2) develops and implements appropriate plans of action to correct identified quality deficiencies.

(c) Texas or the Secretary of Health and Human Services may not require disclosure of the records of the Quality Assessment and Assurance Committee except insofar as such disclosure is related to the compliance of the committee with the requirements of subsection (b) of this section.
(d) Good faith attempts by the committee to identify and correct quality deficiencies may not be used as a basis for sanctions.
(e) The Quality Assessment and Assurance Committee must adopt and ensure implementation of a policy to identify, assess, and develop strategies to control risk of injury to residents and nurses associated with the lifting, transferring, repositioning, or moving of a resident. The policy must establish a process that includes:

(1) analysis of the risk of injury to both residents and nurses posed by the resident handling needs of the resident populations served by the nursing facility and the physical environment in which resident handling and moving occurs;
(2) annual in-service education of nurses in the identification, assessment, and control of risk of injury to residents and nurses during resident handling;
(3) evaluation of alternative ways to reduce risks associated with resident handling, including evaluation of equipment and the environment;
(4) restriction, to the extent feasible with existing equipment and aids, of manual resident handling or moving of all or most of a resident's weight to emergency, life-threatening, or otherwise exceptional circumstances;
(5) collaboration with and an annual report to the nurse staffing committee;
(6) specific procedures for nurses to refuse to perform or be involved in resident handling or moving that the nurse believes in good faith will expose a resident or a nurse to an unacceptable risk of injury;
(7) submission of an annual report by the nursing staff to the Quality Assessment and Assurance Committee on activities related to the identification, assessment, and development of strategies to control risk of injury to residents and nurses associated with the lifting, transferring, repositioning, or moving of a resident; and
(8) in developing architectural plans for constructing or remodeling a nursing facility or a unit of a nursing facility in which resident handling and moving occurs, consideration of the feasibility of incorporating resident handling equipment or the physical space and construction design needed to incorporate that equipment at a later date.

 

§19.1918 Disclosure of Ownership

(a) The facility must comply with the disclosure requirements of 42 Code of Federal Regulations, §420.206 and §455.104.
(b) The facility must provide written notice to Facility Enrollment, Long Term Care-Regulatory, Texas Department of Human Services (DHS) at the time of change if a change occurs in:

(1) persons with an ownership or control interest, as defined in 42 Code of Federal Regulations, §420.201 and §455.101;
(2) the officers, directors, agents or managing employees;
(3) the corporation, association, or other company responsible for the management of the facility;
(4) the facility's administrator or director of nursing; or
(5) the controlling person.

(c) The notice specified in subsection (b) of this section must include the identity of each new individual or company.
(d) Failure to notify Facility Enrollment within 30 days of a change specified in subsection (b) will result in a $500 administrative penalty. If the notice is postmarked within the 30-day period, 15 days will be added to the time period to receive the notice.

 

§19.1919 Right to Possession

(a) As a condition of continued licensure, a license holder must maintain the right to possession of the facility as described in §19.204(b)(1) of this title (relating to Application Requirements).
(b) The license holder must notify DADS in writing within 72 hours after the license holder becomes aware of or should have become aware of the loss and imminent loss of the right to possession of the facility, such as notice of eviction, foreclosure, termination of lease, or similar proposed action. The notification must:

(1) include a description of the specific situation that resulted in loss of possession of the facility;
(2) be faxed to (512) 438-2730 or (512) 438-2728; and
(3) be kept on file with a copy of the fax confirmation.

 

§19.1920 Operating Policies and Procedures

(a) The facility must have an administrative policy and procedure manual that outlines the general operating policies and procedures of the facility. The manual must include policies and procedures related to admission and admission agreements, resident care services, refunds, transfers and discharges, termination from Medicaid or Medicare participation in accordance with §19.2121 of this chapter (relating to General Provisions), receiving and responding to complaints and recommendations, and protection of residents' personal property and civil rights. A copy of this manual must be made available for review upon request to each physician, staff member, resident, and resident's next of kin or guardian and to the public.
(b) The facility must have written personnel policies and procedures that are explained to employees during initial orientation and are readily available to them after that time.
(c) The facility must ensure that personnel records are correct and contain sufficient information to support placement in the assigned position (including a resume of training and experience). When appropriate, a current copy of the person's license or permit must be in the file.
(d) Upon request of the (DADS), the facility must make available financial records to demonstrate the facility's compliance with applicable state laws and standards relating to licensing.

 

§19.1921 General Requirements for a Nursing Facility

(a) The facility must admit and retain only residents whose needs can be met through service from the facility staff, or in cooperation with community resources or other providers under contract.
(b) Individuals who have met the requirements of Chapter 17 of this title (relating to Preadmission Screening and Resident Review (PASRR)) and have mental or physical diseases, or both, that endanger other residents may be admitted or retained if adequate rooms and care are provided to protect the other residents.
(c) The term "hospital" may not be used as part of the name of a nursing facility unless it has been classified and duly licensed as a hospital by the appropriate state agency.
(d)A facility that ceases operation, temporarily or permanently, voluntarily or involuntarily, must provide notice to the residents and residents' relatives or responsible parties of closure. See §19.2310 of this chapter (relating to Nursing Facility Ceases to Participate) for additional notice requirements that apply to a Medicaid or Medicare certified facility.

(1) If the closure is voluntary, within one week after the date on which the decision to close is made, the facility must send written notice to residents' relatives or responsible parties stating that the closure will occur no earlier than 60 days after receipt of the notice.
(2) If the closure is involuntary, the facility must make the notification, whether orally or in writing, immediately on receiving notice of the closure.

(e) Each licensed facility must conspicuously and prominently post the information listed in paragraphs (1) - (13) of this subsection in an area of the facility that is readily available to residents, employees, and visitors. The posting must be in a manner that each item of information is directly visible at a single time. In the case of a licensed section that is part of a larger building or complex, the posting must be in the licensed section or public way leading to it. Any exceptions must be approved by DADS. The following items must be posted:

(1) the facility license;
(2) a complaint sign provided by DADS giving the toll-free telephone number;
(3) a notice in a form prescribed by DADS that inspection and related reports are available at the facility for public inspection;
(4) a concise summary prepared by DADS of the most recent inspection report;
(5) a notice of DADS toll-free telephone number 1-800-458-9858 to request summary reports relating to the quality of care, recent investigations, litigation or other aspects of the operation of the facility that are available to the public;
(6) a notice that DADS can provide information about the nursing facility administrator at 512-438-2015;
(7) if a facility has been ordered to suspend admissions, a notice of the suspension, which must be posted also on all doors providing public ingress to and egress from the facility;
(8) the statement of resident rights provided in §19.401 of this chapter (relating to Introduction) and any additional facility requirements involving resident rights and responsibilities;
(9) a notice that employees, other staff, residents, volunteers, and family members and guardians of residents are protected from discrimination or retaliation as provided by the Texas Health and Safety Code, §260A.014 and §260A.015; and that the facility has available for public inspection a copy of the Texas Health and Safety Code, Chapter 260A;
(10) a prominent and conspicuous sign for display in a public area of the facility that is readily available to the residents, employees, and visitors and that includes the statement: CASES OF SUSPECTED ABUSE, NEGLECT, OR EXPLOITATION SHALL BE REPORTED TO THE DEPARTMENT OF AGING AND DISABILITY SERVICES BY CALLING 1-800-458-9858;
(11) for a facility that advertises, markets, or otherwise promotes that it provides services to residents with Alzheimer's disease and related disorders, a disclosure statement describing the nature of its care or treatment of residents with Alzheimer's disease and related disorders in accordance with §19.204(b)(4) of this chapter (relating to Application Requirements);
(12) at each entrance to the facility, a sign that states that a person may not enter the premises with a concealed handgun and that complies with Government Code §411.204; and
(13) daily for each shift, the current number of licensed and unlicensed nursing staff directly responsible for resident care in the facility. In addition, the nursing facility must make the information required to be posted available to the public upon request.

(f) A facility that advertises, markets, or otherwise promotes that it provides services to residents with Alzheimer's disease and related disorders must give:

(1) the disclosure statement required by §19.204(b)(4) of this chapter (related to Applications Requirements) to:
(A) an individual with Alzheimer's disease or a related disorder, who is seeking to become a resident of the facility;
(B) an individual assisting an individual with Alzheimer's disease or a related disorder who is seeking to become a resident of the facility; and
(C) an individual seeking information about the facility's care and treatment of residents with Alzheimer's disease or a related disorder.
(2) an amended disclosure statement required by §19.204(b)(4)(C) to a resident, responsible party, or legal guardian at least 30 days before the change in the operation of the facility reflected in the amended disclosure statement is effective.

(g) The reports referenced in subsection (e)(3) of this section must be maintained in a well-lighted, accessible location and must include:

(1) a statement of the facility's compliance record that is updated at least bi-monthly and reflects at least one year's compliance record, in a form required by DADS; and
(2) if a facility has been cited for a violation of residents' rights, a copy of the citation, which must remain in the reports until any regulatory action with respect to the violation is complete and DADS has determined that the facility is in full compliance with the applicable requirement.

(h) The facility must inform the resident or responsible party or both upon the resident's admission that the inspection reports referenced in subsection (e)(3) of this section are available for review.
(i) A facility must provide the telephone number for reporting cases of suspected abuse, neglect, or exploitation to an immediate family member of a resident of the facility upon the resident's admission to the facility.
(j) A copy of the Texas Health and Safety Code, Chapters 242 and 260A, must be available for public inspection at the facility.
(k) Within 72 hours after admission, the facility must prepare a written inventory of the personal property a resident brings to the facility, such as furnishings, jewelry, televisions, radios, sewing machines, and medical equipment. The facility does not have to inventory the resident's clothing; however, the operating policies and procedures must provide for the management of resident clothing and other personal property to prevent loss or damage. The facility administrator or his or her designee must sign and retain the written inventory and must give a copy to the resident or the resident's responsible party or both. The facility must revise the written inventory to show if property is lost, destroyed, damaged, replaced, or supplemented. Upon discharge of the resident, the facility must document the disposition of personal effects by a dated receipt bearing the signature of the resident or the resident's responsible party or both. See §19.416 of this chapter (relating to Personal Property).
(l) Each facility must comply with the provisions of the 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).
(m) Before a facility hires an unlicensed employee, the facility must search the employee misconduct registry (EMR) established under §253.007, Texas Health and Safety Code, and the DADS nurse aide registry (NAR) to determine whether the individual is designated in either registry as unemployable. Both registries can be accessed on the DADS Internet website.
(n) A facility is prohibited from hiring or continuing to employ a person who is listed in the EMR or NAR as unemployable.
(o) A facility must provide notification about the EMR to an employee in accordance with §93.3 of this title (relating to Employment and Registry Information).
(p) In addition to the initial search of the EMR and NAR, a facility must:

(1) conduct a search of the NAR and EMR to determine if an employee of the facility is listed as unemployable in either registry as follows:
(A) for an employee most recently hired before September 1, 2009, by August 31, 2011, and at least every twelve months thereafter; and
(B) for an employee most recently hired on or after September 1, 2009, at least every twelve months; and
(2) keep a copy of the results of the initial and annual searches of the NAR and EMR in the employee's personnel file.

(q) A facility must upload to the DADS website, at http://fives.dads.state.tx.us/choose.asp, a statement of all facility requirements involving resident rights and responsibilities that are not described in §19.401(b) of this chapter. The facility must promptly upload a revised statement if the facility changes its requirements.

 

§19.1922 Resident Care Policies

(a) The facility must have written policies to govern the nursing care and related medical or other services provided. The written policies must include plans for promoting self-care and independence. If children are admitted to the facility, written policies must address the care of children, consistent with currently acceptable pediatric practice and should address the ongoing assessment of the potential for community reintegration.
(b) Resident care policies are developed by the medical director and by professional personnel, including one or more physicians, licensed or registered nurses, a registered pharmacist, and the licensed nursing home administrator. The advisory group must review the policies at least annually and update them as necessary.

 

§19.1923 Incident or Accident Reporting

(a) The facility must detail in the medical record every accident or incident, including allegations of mistreatment of residents by facility staff, medication errors, and drug reactions.
(b) Accidents, whether or not resulting in injury, and any unusual incidents or abnormal events including allegations of mistreatment of residents by staff or personnel or visitors, must be described in a separate administrative record and reported by the facility in accordance with the licensure Act and this section.

(1) If the incident appears to be of a serious nature, it must be investigated by or under the direction of the director of nurses, the facility administrator, or a committee charged with this responsibility.
(2) If the incident involves a resident and is serious or requires special reporting to HHSC, the resident's responsible party and attending physician must be immediately notified.

(c) Accident or incident reports must be retained for at least two years following the occurrence and must contain the following information:

(1) For incidents involving residents, the name of the resident; witnesses, if any; date, time, and description of the incident; circumstances under which it occurred; action taken including documentation of notification of the responsible party and attending physician, if appropriate; and the resident's current (post-incident) health condition, including vital signs and date and time of entry.
(2) Incident reports describing incidents not involving residents must contain such information as names of individuals involved, date, time, witnesses (if witnesses were present), description of the event or occurrence, including the circumstances under which it occurred, action taken, and final disposition that indicates resolution of the event or occurrence.

(d) The facility must investigate incidents/accidents and complaints for trends which may indicate resident abuse. Trends that might be identified include but are not limited to: type of accident, type of injury, time of day, staff involved, staffing level, and relationship to past complaints.
(e) The facility must make incident reports available for review, upon request and without prior notice, by representatives of HHSC, the U.S. Department of Health and Human Services, if applicable; and the Texas Department of Family and Protective Services. The facility must make reports related to specific incidents available to the Ombudsman and a certified ombudsman.

 

§19.1924 Financial Records

Nursing facility staff must maintain current financial records in accordance with recognized fiscal and accounting procedures. The facility must ensure that records clearly identify each charge and payment made on behalf of each resident residing in the facility. The facility must clearly state in its records to whom charges were made and for whom payment was received. Medicaid-certified facilities must also comply with the following requirements:

(1) The facility must make financial records and supporting documents available at any time within working hours and without prior notification for review by the Texas Department of Human Services, the Department of Health and Human Services, and the Texas attorney general's Medicaid Fraud Control Unit.
(2) The facility must keep the financial records in the facility for a minimum of three years and 90 days after the termination of the contract period or for three years after the end of the federal fiscal year in which services were provided if there was a provider agreement/contract with no specific termination date in effect. The facility must also keep for the same period of time supporting fiscal documents and other records necessary to ensure claims for federal matching funds.

 

§19.1925 Financial Condition

(a) Effective December 1, 2008, minimum standards of financial condition require the applicant or license holder to have sufficient financial resources to:

(1) satisfy obligations at the time they come due; and
(2) ensure at all times the delivery of essential care and services, such as nursing or dietary services, or utilities.

(b) A license holder must notify DADS of significant adverse changes in financial condition, which include changes in financial position, cash flow, results of operation or other events that could adversely affect the delivery of essential care and services, such as nursing or dietary services, or utilities. The following are examples of significant adverse changes in financial condition that must be reported:

(1) The license holder, operator, administrator, manager or other controlling person receives notice that a judgment or tax lien of at least $50,000 has been filed, recorded or levied against the facility or any of the assets of the facility or the license holder and the judgment or tax lien is not satisfied, or an appropriate extension has not been obtained, within three working days after receipt of the notice.
(2) A financial institution refuses to honor facility-operation-related checks or other financial instruments issued by the license holder, operator, administrator, manager or other controlling person or agent of the license holder, operator, administrator, manager, or other controlling person and:
(A) the cumulative amounts of the checks or financial instruments are $50,000 or more; and
(B) the checks or financial instruments are not honored or replaced to the satisfaction of the holders of the instruments within five working days after the holders have notified the license holder, operator, administrator, manager or the person authorized to issue the instrument of the dishonored items.
(3) The facility fails to maintain the facility's utilities or a sufficient quantity of supplies, including nursing, dietary, pharmaceutical or other care and service supplies, to meet the needs of the residents.
(4) The license holder, operator, administrator, manager or other controlling person fails to make timely payments of any facility-related tax of at least $10,000 and fails to satisfy such tax within five working days after the date the tax becomes due.
(5) The license holder, operator, administrator, manager or other controlling person files a voluntary bankruptcy petition, or a creditor files an involuntary bankruptcy petition against the license holder or controlling person, under the United States Code or any other laws of the United States.
(6) A court appoints a bankruptcy trustee for the facility.
(7) A person seeking appointment of a receiver for the facility files a petition in any jurisdiction
(8) The license holder, operator, administrator, manager or other controlling person is unable to meet conditions of a facility-operation-related loan or debt covenant unless the loan or debt covenant has been waived, and that inability leads to:
(A) the imposition of a fine or penalty;
(B) restructuring;
(C) a change in terms or conditions of the loan or debt covenant; or
(D) a recall by the issuing entity.
(9) The license holder, operator, administrator, manager or other controlling person is delinquent on more than $50,000 of facility-related contractual obligations or vendor contracts and has not cured the delinquency within five working days after receipt of notice from the creditor or creditors to pay the debt.


(c) The license holder must notify DADS in writing of a significant adverse change in its financial condition as required by subsection (b) of this section within 72 hours after the license holder becomes aware of or should have become aware of change.
(d) The license holder's notice required by subsection (b) of this section must include a description of:

(1) the specific significant adverse change in financial condition;
(2) how the significant adverse change in financial condition affects the license holder's ability to deliver essential care and services; and
(3) the actions the license holder has taken to address the significant adverse change in financial condition.

(e) The license holder must fax the notice required in subsection (b) of this section to (512) 438-2730 or (512) 438-2728, and the notice must be kept on file with a copy of the fax confirmation.
(f) The license holder must provide any other information DADS requests to substantiate continued compliance with the requirements of this section within 30 days after the request.

 

§19.1926 Medicaid Hospice Services

(a) When a nursing facility (NF) contracts for hospice services for residents, the nursing facility must:

(1) have a written contract for the provision of arranged services, which must be signed by authorized representatives of the NF and hospice and must include the following:
(A) the services to be provided;
(B) a stipulation that hospice-related services performed by NF staff may be provided only with the express authorization of the hospice;
(C) how the contracted services are to be coordinated, supervised, and evaluated by the hospice and the NF;
(D) delineation of the roles of the hospice and the NF in the admission process, recipient and family assessment, and the interdisciplinary team case conferences;
(E) a requirement for documentation of services furnished; and
(F) the qualifications of the personnel providing the services;
(2) provide room and board services, which include the performance of personal care services including: assistance in the activities of daily living, administration of medication, socializing activities, maintaining the cleanliness of a resident's room, and supervision and assisting in the use of durable medical equipment and prescribed therapies;
(3) immediately notify the hospice of any significant changes in the hospice recipient's condition;
(4) have joint procedures with the hospice provider for ordering medications that ensure the proper payor is billed and for reconciling billing between NF and hospice, including:
(A) contacting the hospice prior to filling a new prescription; and
(B) ensuring that drugs unrelated to the terminal illness are ordered through the Vendor Drug program; and
(5) ensure that hospice documentation is a part of the current clinical record, which, at a minimum, must include the current and past:
(A) Texas Medicaid Hospice Recipient Election/Cancellation form;
(B) MDS assessment;
(C) Physician Certification of Terminal Illness form;
(D) Medicare Election Statement, if dually eligible;
(E) verification that the recipient does not have Medicare Part A;
(F) hospice interdisciplinary assessments;
(G) hospice plan of care; and
(H) current interdisciplinary notes, which include the following:
(i) nurses notes and summaries;
(ii) physician orders and progress notes; and
(iii) medication and treatment sheets during the hospice certification period.

(b) The NF and hospice must ensure that the coordinated plan of care reflects the participation of the hospice, the NF, the recipient, and the recipient's legal representative to the extent possible. The plan of care must include directives for managing pain and other uncomfortable symptoms, and must be revised and updated as necessary to reflect the recipient's current status.
(c) The recipient has the right to refuse any services from the nursing facility and the hospice provider.
(d) The hospice retains overall professional management responsibility for directing the implementation of the plan of care related to the terminal illness and related conditions, which includes:

(1) designation of a hospice registered nurse to coordinate the implementation of the plan of care;
(2) provision of substantially all core services (physician, nursing, medical social work, and counseling services) that must be routinely provided directly by the hospice employees, and cannot be delegated to the NF, as outlined under 42 Code of Federal Regulations §418.80;
(3) provision of drugs and medical supplies as needed for palliation and management of the terminal illness and related conditions; and
(4) involvement of NF personnel in assisting with the administration of prescribed therapies in the plan of care only to the extent that the hospice would routinely use the services of a hospice patient's family or caregiver in the home setting.

(e) The hospice may arrange to have non-core hospice services provided by the NF if the hospice assumes professional management responsibility for the services and assures these services are performed in accordance with the policies of the hospice and the recipient's plan of care.

 

§19.1928 Volunteer Program

(a) The facility must promote a volunteer program designed to assist in meeting the social and emotional needs of the residents.
(b) A volunteer council may be utilized to solicit community involvement in the volunteer program.
(c) The facility should promote volunteer programs designed to provide social, emotional, educational, and sensory opportunities for its pediatric residents.

 

§19.1929 Staff Development

Each facility must implement and maintain programs of orientation, training, and continuing in-service education to develop the skills of its staff, as described in §19.1903 of this title (relating to Required Training of Nurse Aides).

(1) As part of orientation and annually, each employee must receive instruction regarding:
(A) Human Immunodeficiency Virus (HIV), as outlined in the educational information provided by the Texas Department of Health Model Workplace Guidelines. At a minimum the HIV curriculum must include:
(i) modes of transmission;
(ii) methods of prevention;
(iii) behaviors related to substance abuse;
(iv) occupational precautions;
(v) current laws and regulations concerning the rights of an acquired immune deficiency syndrome/HIV-infected individual; and
(vi) behaviors associated with HIV transmission which are in violation of Texas law; and
(B) restraint reduction and the prevention of falls through competency-based training. Facilities also may choose to train on behavior management, including prevention of aggressive behavior and de-escalation techniques.
(2) Each registered nurse, licensed vocational nurse, and nurse aide (nurse assistant) who provides nursing services must receive at least one hour of training each year in caring for people who have dementia.
(3) Nursing staff, licensed nurses, and nurse aides must receive annual in-service training which includes components, appropriate to their job responsibilities, from one or more of the following categories:
(A) communication techniques and skills useful when providing geriatric care, such as skills for communicating with the hearing impaired, visually impaired and cognitively impaired; therapeutic touch; and recognizing communication that indicates psychological abuse;
(B) assessment and nursing interventions related to the common physical and psychological changes of aging for each body system;
(C) geriatric pharmacology, including treatment for pain management and sleep disorders;
(D) common emergencies of geriatric residents and how to prevent them, for example, falls, choking on food or medicines, injuries from restraint use; recognizing sudden changes in physical condition, such as stroke, heart attack, acute abdomen, and acute glaucoma; and obtaining emergency treatment;
(E) common mental disorders with related nursing implications; and
(F) ethical and legal issues regarding advance directives, abuse and neglect, guardianship, and confidentiality.
(4) Facilities with pediatric residents must comply with the following:
(A) Facility staff must be trained in the use of pediatric equipment and supplies, including emergency equipment and supplies.
(B) Facility staff should receive annual continuing education dealing with pediatric issues, including child growth and development and pediatric assessment.
(5) Minimum continuing in-service education requirements are listed in subparagraphs (A)-(B) of this paragraph. Attendance at relevant outside training may be used to satisfy the in-service education requirement. The facility must keep in-service records for each employee listed. The minimum requirements are:
(A) licensed personnel — two hours per quarter; and
(B) nurse aides — 12 hours annually. For the purpose of this paragraph, a medication aide is considered a nurse aide and must receive the same continuing in-service education. This in-service education does not qualify as continuing education units required for renewal of a medication aide permit.
(6) A rural hospital participating in the Medicaid Swing Bed Program as specified in §19.2326 of this title (relating to Medicaid Swing Bed Program for Rural Hospitals) is not required to meet the requirements of this section, if the swing beds are used for no more than one 30-day length of stay per year, per resident.

 

§19.1930 Blood and Blood Products

If the facility stores and transfers blood or blood products, the facility must meet the conditions established for certification of hospitals that are contained in 42 Code of Federal Regulations, §482.27(d)(1)-(6).

 

§19.1934 Educational Requirements for Persons under Age 22

(a) A nursing facility that accepts school-age residents, ages 3 through 21, must provide assurances to the Texas Department of Human Services (DHS) that it has:

(1) established a written cooperative agreement with the local independent school district that includes:
(A) general responsibilities of the facility and the school district in delivering appropriate and mutually supportive services to eligible school-age residents;
(B) a provision allowing the school district staff to access, with appropriate consent of the eligible resident or guardian, the facility's resident record and assessment information to avoid unnecessary duplication of services;
(C) a provision allowing the school district staff an opportunity to participate in or provide information for the facility's admission, programmatic, and discharge-planning meetings when the educational needs of an eligible resident are being considered; and
(D) a provision allowing the NF staff to participate in or provide information to the school district's admission, review, and dismissal (ARD) committee during its deliberations about each eligible school-age resident; and
(2) developed written policies and procedures to ensure that all eligible school-age residents, ages 3 through 21, who have neither successfully graduated from nor completed an approved school program are enrolled in a Texas Education Agency-approved educational program. The facility must:
(A) notify the local education agency (LEA), in writing, within three days of the admittance of an individual between the ages of birth and 22; and
(B) provide the LEA with any of the following information or records available to the facility within 14 working days of a school-age child's admission to the facility:
(i) birth certificate or other document as proof of a child's identity;
(ii) medical history and medical records, including current immunization records;
(iii) social history;
(iv) vision and hearing screening and/or evaluation;
(v) assessment reports, including psychological, educational, related service, and vocational assessments;
(vi) the facility's care plan;
(vii) educational history (at last previous educational placement to facilitate the LEA's efforts to obtain educational records from the previous LEA); and (viii) any court order which authorizes the placement in the facility.
(C) maintain, as a separate document in the school-age resident's record, a copy of the original Individual Education Plan (IEP) developed by the school district, and any subsequent changes;
(D) document, in the comprehensive care plan, the following:
(i) efforts to resolve differences between the IEP and the comprehensive care plan;
(ii) educational objectives (such as behavior therapy or speech therapy), services, and approaches;
(iii) the resident's adjustment to the educational program;
(iv) changes and modifications to the plan; and
(v) discipline(s) in the facility responsible for follow-through on each educational objective; and
(E) provide to the local ARD committee a description of available space should a child need to be educated at the facility. If the ARD committee decides that the facility is the appropriate educational placement and the space is adequate, the facility must:
(i) provide the space as described, free of any costs, including those incurred for the operation and maintenance of the space; and
(ii) if the space will no longer be available or must be reduced, notify the LEA 30 days in advance with regard to one student and 90 days in advance regarding more than one student.

(b) If a provider desires to provide and administer the provider's own educational program(s), the provider must secure and maintain certification as a nonpublic school from the Texas Education Agency.
(c) In accordance with the Education Code, §29.012, DHS adopts by reference 19 TAC §89.1115 (relating to the Memorandum of Understanding Concerning Interagency Coordination of Special Education Services to Students with Disabilities in Residential Facilities).

 

§19.1935 Automated External Defibrillators

(a) In this section:

(1) "automated external defibrillator" means a heart monitor and defibrillator that:
(A) has received approval from the United States Food and Drug Administration of its premarket notification filed under United States Code, Title 21, §360(k);
(B) is capable of recognizing the presence or absence of ventricular fibrillation or rapid ventricular tachycardia;
(C) is capable of determining, without interpretation of cardiac rhythm by an operator, whether defibrillation should be performed; and
(D) after determining that defibrillation should be performed, automatically charges and requests delivery of an electrical impulse to an individual's heart; and
(2) "onsite" means:
(A) in a single story building;
(B) on each floor of a multiple story building; or
(C) in each small house of a multiple small house model.

(b) A facility must have at least one automated external defibrillator available for use onsite at all times. The facility must place the automated external defibrillator in a location that is easily accessible for staff persons who are trained to operate it.
(c) A facility must ensure at least one staff person who has completed and maintains training in cardiopulmonary resuscitation (CPR) and automated external defibrillator operation in accordance with the guidelines established by the defibrillator's manufacturer and as approved by the American Heart Association, the American Red Cross, or other nationally recognized associations is onsite at all times.
(d) A facility must ensure that a licensed physician provides medical consultation or general oversight of the staff training to ensure the facility complies with subsection (c) of this section.
(e) A facility must maintain and test the automated external defibrillator according to the manufacturer's guidelines and keep records of the maintenance and testing.
(f) A facility must ensure the use of an automated external defibrillator is consistent with a resident's advance directive executed or issued under Texas Health and Safety Code, Chapter 166, Subchapter C.
(g) The facility must notify the local emergency medical services provider by calling 9-1-1, per standard CPR procedures, while using an automated external defibrillator on a resident.
(h) Within 24 hours after acquiring an automated external defibrillator, a facility must notify the local emergency medical services provider of:

(1) the existence of the automated external defibrillator;
(2) the location of the automated external defibrillator in the facility; and
(3) the type of automated external defibrillator.

(i) If a facility has an automated external defibrillator on the effective date of this rule, the facility must provide the notification described in subsection (h) of this section within seven days after the effective date.

 

§19.1936 Guardianship Orders for a Nursing Facility Resident

(a) A facility must request a copy of any current court order appointing a guardian and letters of guardianship for a resident or a resident's estate from the resident's nearest relative or the person responsible for the resident's support.
(b) A facility must request the court order and letters of guardianship:

(1) when a facility admits an individual; and
(2) when the facility becomes aware a guardian is appointed after the facility admits a resident.

(c) A facility must request an updated copy of the court order and letters of guardianship at each annual assessment and retain documentation of any change.
(d) A facility must make at least one follow-up request within 30 days after the facility makes a request in accordance with subsection (b) or (c) of this section if the facility has not received:

(1) a copy of the court order and letters of guardianship; or
(2) a response that there is no court order and letters of guardianship.

(e) A facility must keep in the resident's clinical record:

(1) documentation of the results of the request for the court order and letters of guardianship; and
(2) a copy of the most recent court order appointing a guardian of a resident or a resident's estate and letters of guardianship that the facility received.

NFRLMC, Subchapter U, Inspections, Surveys, and Visits

Revision 18-3

 

§19.2002 Procedural Requirements - Licensure Inspections and Surveys

(a) HHSC inspection and survey personnel 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 licensing.
(b) An inspection may be conducted by an individual qualified surveyor or by a team, of which at least one member is a qualified surveyor.
(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. Releasing advance information of an unannounced inspection is a third degree felony, as provided in §242.045 of the Health and Safety Code.
(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) the State Ombudsman, a certified ombudsman, and an ombudsman intern who are authorized to attend and participate in inspections;
(3) representatives of the United States Department of Health and Human Services whose programs relate to the Medicare/Medicaid Long Term Care Program; and
(4) representatives of HHSC whose programs relate to the Medicare/Medicaid long term care program.

(g) HHSC conducts at least two unannounced inspections during each licensing period of each institution licensed under Health and Safety Code, Chapter 242, except as provided for in this subsection.

(1) In order to ensure continuous compliance, a sufficient number of inspections will be conducted between the hours of 5 p.m. and 8 a.m. in randomly selected institutions. This cursory after-hours inspection is 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 is minimal.
(2) For at least two unannounced inspections each licensing period, HHSC invites to the inspections at least one person as a citizen advocate from the American Association of Retired Persons, the Texas Senior Citizen Association, the Texas Retired Federal Employees, the Ombudsman Program, or any other statewide organization for the elderly. HHSC provides 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 protocols of HHSC. Advocates provide their own transportation. The schedule of inspections in this category are 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 HHSC upon request.

(1) During an inspection, survey, or investigation, HHSC is authorized to photocopy documents, photograph residents, and use any other available recordation devices to preserve all relevant evidence of conditions that HHSC 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 HHSC at the rate not to exceed the rate charged by HHSC 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) HHSC protects the copies for privacy and confidentiality in accordance with recognized standards of medical records practice, applicable state laws, and department policy.

(i) HHSC provides for a special team to conduct validation surveys or verify findings of previous licensure surveys.

(1) At HHSC's discretion, based on record review, random sample, or any other determination, HHSC may assign a team to conduct a validation survey. HHSC 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.

 

§19.2004 Determinations and Actions Pursuant to Inspections

(a) DADS will determine if a facility meets the licensing rules, including both physical plant and facility operation requirements.
(b) Violations of regulations will be listed on forms designed for the purpose of the inspection or will be listed in letter form when administrative penalties are being proposed.
(c) At the conclusion of an inspection, survey, or investigation, the violations will be discussed in an exit conference with the facility's management. A written list of the violations will be left with the facility at the time of the exit conference; any additional violation that may be determined during review of field notes or preparation of the official final list will be communicated to the facility in writing within 10 working days after the exit conference. DADS gives the facility an additional exit conference regarding the additional violations.
(d) Not later than the fifth working day after the date a facility receives the final statement of violations under this section, the facility must provide a copy of the statement to a representative of the facility's family council.
(e) Within 10 working days after receipt of the final statement of violations, the facility must submit an acceptable plan of correction to the regional director, except plans of correction under §19.2112(i) of this chapter (relating to Administrative Penalties). An acceptable plan of correction must address the following areas:

(1) how corrective action will be accomplished for those residents affected by the violations;
(2) how the facility will identify other residents with the potential to be affected by the same violations;
(3) what measures will be put into place or systemic changes made to ensure the violations will not recur;
(4) how the facility will monitor its corrective actions to ensure that the violations are being corrected and will not recur; and
(5) when corrective action will be completed.

(f) A clear and concise summary in nontechnical language of each licensure inspection or complaint investigation will be provided by DADS at the time the report of contact or similar document is provided.

 

§19.2006 Reporting Incidents and Complaints

(a) Each incident or complaint report must reflect the reporting person's belief that a resident has been or will be abused or neglected and must contain the following information:

(1) the address or phone number of the person making the report so that DADS can contact the person for any additional information, except for an anonymous report;
(2) the name and address of the resident;
(3) the name and address of the person responsible for the care of the resident, if available;
(4) information required by DADS guidelines, when the report is an incident; and
(5) any other relevant information. Relevant information includes the reporter's or complainant's basis or cause for reporting and his or her belief that a resident's physical or mental health or welfare has been or may be adversely affected by abuse or neglect caused by another person or persons, and any other information DADS considers relevant for the report.


(b) Should a report not include the information in subsection (a) of this section, the report may be considered a complaint or an incident report not meeting the reporting criteria and may be investigated using other procedures. In receiving an oral report, DADS will take all reasonable steps to elicit from the reporter all the information in subsection (a) of this section.
(c) Anonymous complaints of abuse or neglect will be treated in the same manner as acknowledged reports unless the anonymous report accuses a specific individual of abuse or neglect, which report need not be investigated.

 

§19.2008 Investigations of Incidents and Complaints

(a) In accordance with a memorandum of understanding between DADS and the Texas Department of Family and Protective Services (DFPS) (relating to Memorandum of Understanding Concerning Protective Services for the Elderly), DADS will receive and investigate reports of abuse, neglect, and exploitation of elderly and disabled persons or other residents living in facilities licensed under this chapter. In investigating allegations of abuse and neglect of children residing in facilities, the definitions of "abuse," "neglect," and "person responsible for a child's care, custody, or welfare" are those found in §261.001 of the Texas Family Code.
(b) DADS will investigate complaints of abuse, neglect, or exploitation when the act occurs in the facility, when such licensed facility is responsible for the supervision of the resident at the time the act occurs, or when the alleged perpetrator is affiliated with the facility. Complaints of abuse, neglect, or exploitation not meeting this criteria will be referred to DFPS.
(c) The primary purpose of an investigation is the protection of the resident. If, before the completion of an investigation, DADS determines that the immediate removal of the resident is necessary to protect the resident from further abuse or neglect, DADS will petition a court to allow the immediate removal of the resident from the facility.
(d) Investigations under this section are conducted in accordance with Texas Health and Safety Code, §260A.007.
(e) Investigations of reports do not preclude actions under the provisions of Subchapter V of this chapter (relating to Enforcement).
(f) If the initial phase of an incident or complaint investigation concludes that no abuse or neglect adversely affecting the physical or mental health or welfare of a resident has occurred, no further investigation will be undertaken.
(g) The individual reporting the alleged abuse or neglect or other complaint, the resident, the resident's family, any person designated by the resident to receive information concerning the resident, and the facility will be notified of the results of DADS investigation of a reported case of abuse or neglect or other complaint.

 

§19.2009 Hearings on Complaints of Resident Neglect and Abuse, and Misappropriation of Resident Property in Medicaid-Certified Facilities

Hearings required by 42 Code of Federal Regulations §488.335 will be conducted in person or by telephone for the purpose of determining whether sufficient grounds exist for a referral of an individual to the appropriate licensure authority and the facility administrator. The hearings referenced in this section are not applicable to information provided by the Texas Department of Human Services pursuant to 42 CFR §488.325(h) (referrals for substandard quality of care).

 

§19.2010 General Provisions

(a) Confidentiality. All reports, records, and working papers used or developed by the Texas Department of Human Services (DHS) in an investigation are confidential and may be released to the public only as provided below.

(1) 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.
(2) 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:
(A) be signed and dated within six months of the request or state a length of time the authorization is valid;
(B) detail the information to be released;
(C) identify to whom the information can be released; and
(D) release DHS from all liability for complying with the authorization.

(b) Immunity. A person who reports suspected instances of abuse or neglect will, in the absence of bad faith or malicious conduct, be immune from civil or criminal liability which might have otherwise resulted from making the report. Immunity will extend to participation in any judicial proceeding resulting from the report.
(c) Privileged communications. In a proceeding regarding a report or investigation conducted under this subchapter, evidence will not be excluded on a claim of privileged communication except in the case of a communication between an attorney and a client.
(d) Central registry. DHS will maintain a central registry of reported cases of abuse and neglect at the central office in Austin.

 

§19.2011 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) 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, 701 West 51st Street, Austin, Texas 78751 or P.O. Box 149030, Austin, TX 78714-9030;
(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-identification 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 as provided in §19.2010(a) of this title (relating to General Provisions).
(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 Texas Building and Procurement 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.

NFRLMC, Subchapter V, Enforcement

Revision 18-3

 

Division 1, Enforcement Generally

 

§19.2102 Enforcement Generally

The Texas Department of Human Services (DHS), as the state licensing agency and the survey and certification agency for the Medicaid program, may impose concurrently licensing remedies and Medicaid remedies on Medicaid-certified facilities.

 

Division 2, Licensing Remedies

 

§19.2103 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.

 

§19.2104 Suspension of a License

(a) The Texas Department of Human Services (DHS) may suspend a facility's license when the license holder, or any other person described in §19.201(e) of this title (relating to Criteria for Licensing), has:

(1) violated the requirements in either a repeated or substantial manner; or
(2) committed any act described in §19.2112(a)(2)-(6) of this title (relating to Administrative Penalties).

(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 §19.215, 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 Chapter 79, Subchapter Q of this title (relating to Formal Appeals). The suspension is effective 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 remains in effect until DHS determines that the reason for suspension no longer exists. DHS will conduct an on-site investigation before making a determination. During the suspension, the license holder must return the license to DHS.

 

§19.2106 Revocation of a License

(a) DADS may revoke a facility's license when the license holder, or any other person described in §19.201(f) of this title (relating to Criteria for Licensing), has:

(1) violated the requirements of the Health and Safety Code, Chapter 242, or the rules adopted under that chapter, in either a repeated or substantial manner;
(2) committed any act described in §19.2112(a)(2)-(6) of this title (relating to Administrative Penalties); or
(3) failed to notify DADS of a significant adverse change in financial condition, as required under §19.1925(b) of this title (relating to Financial Condition).

(b) Revocation of a license may occur simultaneously with any other enforcement provision available to DADS.
(c) The license holder will be notified by certified mail of DADS' intent to revoke the license, including the facts or conduct alleged to warrant the revocation, with a copy being sent to the facility. The license holder has an opportunity to show compliance with all requirements of law for the retention of the license as provided in §19.215 of this title (relating to Opportunity to Show Compliance). If the license holder requests an opportunity to show compliance, DADS gives the license holder a written affirmation or reversal of the proposed action.
(d) The license holder will be notified by certified mail of DADS' revocation of the facility's license, with a copy being sent to the facility. The license holder has 15 days from receipt of the certified mail notice to request a hearing in accordance with the Health and Human Services Commission's formal hearing procedures in 1 TAC, Chapter 357, Subchapter I. The revocation will take effect when the deadline for appeal of the revocation passes, unless the license holder appeals the revocation. If the license holder 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 DADS.

 

§19.2107  Revocation of a License by the HHSC Executive Commissioner

(a) In this section, “immediate threat to health and safety,” is defined as a condition 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.
(b) Except as provided by subsection (d) of this section, the executive commissioner revokes a license if DADS finds that:

(1) the license holder has committed three violations in §19.601 (b) or (c) of this chapter (relating to Resident Behavior and Facility Practice) that constitute an immediate threat to health and safety related to abuse or neglect of a resident within a 24-month period at the same facility; and
(2) each of the violations is reported in connection with a separate survey, inspection, or investigation visit that occurred on separate entrance and exit dates.

(c) For purposes of calculating the 24-month period described in subsection (b)(1) of this section, the date a violation occurs is the date of the initial exit conference for the survey, inspection, or investigation visit in which the violation was cited.
(d) The executive commissioner does not revoke a license under subsection (b) of this section if:

(1) the violation and the determination of an immediate threat to health and safety are not included on the written list of violations for a survey, inspection, or investigation left with the facility at the time of the initial exit conference described in §19.2004 of this chapter (relating to Determinations and Actions Pursuant to Inspections);
(2) the violation is not included on the final statement of violations described in §19.2004 of this chapter; or
(3) the violation has been reviewed under the informal dispute resolution process described in Title 1, Texas Administrative Code, Chapter 393 (relating to Informal Dispute Resolution and Informal Reconsideration), and the Texas Health and Human Services Commission determines that:

          (A) the violation should be removed from the license holder’s record; or
          (B) the violation should be reduced in severity so that the violation is no longer cited as an immediate threat to health and safety related to abuse or neglect of a resident.

(e) DADS notifies a license holder as provided in §19.2106(d) of this division (relating to Revocation of a License) if the executive commissioner revokes the license holder’s license in accordance with this section.
(f) A license holder may request, in accordance with §19.2113 of this division (relating to Criteria for the Executive Commissioner to Stay a License Revocation), that the executive commissioner stay a revocation imposed in accordance with this section.
(g) A license holder may request a hearing to appeal a revocation imposed in accordance with this section if the license holder does not request a stay of the revocation or if the executive commissioner denies the license holder’s request for a stay of the revocation. The request for a hearing must be made in accordance with §19.2106(d) of this division.
(h) If a license is revoked in accordance with this section, to ensure the health and safety of residents of the facility, DADS may:

(1) request the appointment of a trustee to operate the facility in accordance with §19.2116 of this division (relating to Involuntary Appointment of a Trustee);
(2) assist with obtaining a new operator for the facility; or
(3) assist with the relocation of residents to another facility.

 

§19.2108 Emergency Suspension and Closing Order

(a) The Texas Department of Human Services (DHS) will 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 aresident.

(b) The order suspending a license or closing a part of a facility under this section is immediately effective on the date on which 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 10 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 unless superseded by DHS's Medicaid discharge rules in §19.502 of this title (relating to Transfer and Discharge in Medicaid-Certified Facilities):

(1) A resident's rights or freedom of choice in selecting treatment facilities must be respected.
(2) If a facility or part of a facility is closed:

(A) DHS will notify the local health department director, city or county health authority, and representatives of the appropriate state agencies of the closure;
(B) the facility staff must notify each 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 must be given opportunity to designate a preference for a specific facility or for other arrangements;
(D) DHS must 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 a physician's orders are current. The medications 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 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;
(H) any return to the facility must be treated as a new admission in regard to exchange of medical information, medications, and completion of required forms; and
(I) a licensee whose facility is closed under this section is entitled to request an administrative hearing in accordance with Chapter 79, Subchapter Q of this title (relating to Formal Appeals), but requesting a hearing does not suspend the effectiveness of the order.

 

§19.2110 Referral to the Attorney General

In this section, "threatened violation" means a situation which, unless immediate steps are taken to correct, may cause injury or harm to a resident's health and safety. The Texas Department of Human Services (DHS) may refer a facility to the attorney general who may petition a district court for:

(1) a temporary restraining order to restrain a person from a violation or threatened violation of the requirements or any other law affecting residents if DHS reasonably believes that the violation or threatened violation creates an immediate threat to the health and safety of a resident;
(2) an injunction to restrain a person from a violation or threatened violation of the requirements or any other law affecting residents if DHS reasonably believes that the violation or threatened violation creates a threat to the health and safety of a resident; or
(3) the assessment of civil penalties under the Texas Health and Safety Code, §242.065, for a violation that threatens the health and safety of a resident. DHS recognizes the limited immunity from civil liability granted to volunteers serving as officers, directors, or trustees of charitable organizations, under the Charitable Immunity and Liability Act of 1987 (Texas Civil Practice and Remedies Code, Chapter 84).

 

§19.2111 Suspension of Admissions

(a) If the commissioner finds that a nursing facility has committed an act for which a civil penalty may be imposed under §242.065, Health and Safety Code, the commissioner may order the nursing facility to immediately suspend admissions. For the purpose of this remedy, the Texas Department of Human Services defines an admission as the entry into a facility of a new resident or of a resident who has been absent from the facility for 24 or more hours.

(1) A waiver to allow a resident to be admitted may be considered by the commissioner or his designee.
(2) In determining whether to grant a waiver under paragraph (1) of this subsection, factors that the commissioner or his or her designee may consider include, but are not limited to:

(A) the reason(s) for which admissions at the facility are suspended;
(B) the facility's ability to correct the reasons for which admissions at the facility are suspended;
(C) the relation between the reasons for which admissions at the facility are suspended and the health care needs of the resident who seeks to return to the facility;
(D) whether the resident who wants to return to the facility has a spouse or relative in the facility; or
(E) the effect that barring the resident's return to the facility or other alternative placement will have on the ability of the resident to maintain contact with the resident's attending physician, family, responsible party, and agent (if any) under a medical power of attorney.

(3) A facility, with regard to which admissions are suspended, must inform a resident or his responsible party upon leaving that facility, that if he leaves for more than 24 hours, he may not be able to return.

(b) A suspension of admissions is effective on the date a nursing facility receives notice of the order and of the manner in which the order may be appealed. The Texas Department of Human Services provides an opportunity for a hearing on the appeal of the order within 14 days of the date the suspension becomes effective.
(c) During the time admissions are suspended, a nursing facility must post a notice of the suspension on all entrance and exit doors. The notice must contain the dates of the suspension.
(d) A person commits a Class C misdemeanor if the person does not post the required notice or removes a notice while the suspension of admissions is in effect.

 

§19.2112 Administrative Penalties

(a) HHSC may assess an administrative penalty against a person who:

(1) violates Chapter 242, Health and Safety Code or a rule, standard or order adopted or license issued under Chapter 242;
(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 an attachment to the application; or
(B) with respect to a matter under investigation by HHSC;

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

(A) a book, record, or file required to be maintained by a facility; or
(B) any portion of the premises of a facility;

(4) willfully interferes with the work of, or retaliates against, a representative of, HHSC or the enforcement of this chapter;
(5) willfully interferes or retaliates against a representative of HHSC preserving evidence of a violation of a rule, standard, or order adopted or license issued under Chapter 242, Health and Safety Code;
(6) fails to pay a penalty assessed by HHSC under Chapter 242, Health and Safety Code by the 10th day after the date the assessment of the penalty becomes final;
(7) fails to notify HHSC of a change of ownership before the effective date of the change of ownership.
(8) willfully interferes with the State Ombudsman, a certified ombudsman, or an ombudsman intern performing the functions of the Ombudsman Program as described in 26 TAC §88.2 (relating to Definitions); or
(9) retaliates against the State Ombudsman, a certified ombudsman, or an ombudsman intern;

(A) with respect to a resident, employee of a facility, or other person filing a complaint with, providing information to, or otherwise cooperating with the State Ombudsman, a certified ombudsman, or an ombudsman intern; or
(B) for performing the functions of the Ombudsman Program as described in 26 TAC Chapter 88 (relating to State Long-Term Care Ombudsman Program).

(b) The persons against whom HHSC may impose an administrative penalty include:

(1) an applicant for a license;
(2) a license holder;
(3) a partner, officer, director, or managing employee of an applicant or a license holder; and
(4) a person who controls a nursing facility.

(c) HHSC recognizes the limited immunity from civil liability granted to volunteers serving as officers, directors or trustees of charitable organizations, under the Charitable Immunity and Liability Act of 1987 (Texas Civil Practice and Remedies Code, Chapter 84).
(d) In determining whether a violation warrants an administrative penalty, HHSC considers the facility's history of compliance and whether:

(1) a pattern or trend of violations exists; or
(2) the violation is recurrent in nature and type; or
(3) the violation presents danger to the health and safety of at least one resident; or
(4) the violation is of a magnitude or nature that constitutes a health and safety hazard having a direct or imminent adverse effect on resident health, safety, or security, or which presents even more serious danger or harm; or
(5) the violation is of a type established elsewhere in HHSC rules concerning licensing standards for long term care facilities.

(e) In determining the amount of the penalty, HHSC considers at a minimum:

(1) the gradations of penalties;
(2) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation and the hazard or potential hazard to the health and safety of the residents;
(3) the history of previous violations;
(4) deterrence of future violations; and
(5) efforts to correct the violation.

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

(1) Table of administrative penalties. The following table contains the gradations of penalties in accordance with the relative seriousness of the violation. While the table addresses most administrative penalty situations, administrative penalties for unique circumstances to which the table does not apply are established elsewhere in the requirements. The amount of the administrative penalty listed in subsection (a)(7)of this section is $500.
(2) Definitions. The following terms when used in this section have the following meanings, unless the context clearly indicates otherwise.

(A) Severity.

(i) No actual harm with a potential for minimal harm is a deficiency that has the potential for causing no more that a minor negative impact on the resident(s).
(ii) No actual harm with a potential for more than minimal harm is noncompliance that results in minimal physical, mental and/or psychological discomfort to the resident and/or has the potential (not yet realized) to compromise the resident's ability to maintain and/or reach his/her highest practicable physical, mental, and/or psychosocial well-being as defined by an accurate and comprehensive resident assessment, plan of care and provision of services.
(iii) Actual harm that is not immediate jeopardy is non-compliance that results in a negative outcome that has compromised the resident's ability to maintain and/or reach his/her highest practicable physical, mental and/or psychosocial well-being as defined by an accurate and comprehensive resident assessment, plan of care and provision of services. This does not include a deficient practice that only has limited consequence for the resident and would be included in (i) or (ii) above.
(iv) Immediate jeopardy to resident health and safety is a situation in which immediate corrective action is necessary because the facility's non-compliance 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.

(B) Scope.

(i) Isolated means one or a very limited number of residents are affected and/or one or a very limited number of staff are involved, or the situation has occurred only occasionally or in a very limited number of locations.
(ii) Pattern means more than a very limited number of residents are affected and/or more than a very limited number of staff are involved, or the situation has occurred in several locations, and/or the same residents have been affected by repeated occurrences of the same deficient practice. The effect of the deficient practice is not found to be pervasive throughout the facility.
(iii) Widespread means the problems causing the deficiencies are pervasive in the facility and/or represent systemic failure that affected or has the potential to affect a large portion or all of the facility's residents.

(g) The penalties for a violation of the requirement to post notice of the suspension of admissions, additional reporting requirements found at §19.601(a) of this chapter (relating to Resident Behavior and Facility Practice), or residents' rights cannot exceed $1,000 a day for each violation, unless the violation of a resident's right also violates a rule in Subchapter H of this chapter (relating to Quality of Life), or Subchapter J of this chapter (relating to Quality of Care).
(h) 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.
(i) HHSC may issue a preliminary report regarding an administrative penalty. Within 10 days of the issuance of the preliminary report, HHSC will give the facility written notice of the recommendation for an administrative penalty. The notice will include:

(1) a brief summary of the violations;
(2) a statement of the amount of penalty recommended;
(3) a statement of whether the violation is subject to correction under §19.2114 of this subchapter (relating to Right to Correct) and if the violation is subject to correction, a statement of:

(A) the date on which the facility must file a plan of correction (POC) to be approved by HHSC; and
(B) the date on which the POC must be completed to avoid assessment of the penalty; and

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

(j) Within 20 days after the date on which written notice of recommended assessment of a penalty is sent to a facility, the facility must give HHSC written consent to the penalty, make a written request for a hearing, or if the violation is subject to correction, submit a plan of correction in accordance with §19.2114 of this subchapter (relating to Right to Correct). If the facility does not make a response within the 20-day period, HHSC will assess the penalty.
(k) The procedures for notification of recommended assessment, opportunity for hearing, actual assessment, payment of penalty, judicial review, and remittance will be in accordance with Health and Safety Code, §§242.067 - 242.069. Hearings will be held in accordance with Health and Human Services Commission's rules at 1 TAC, Chapter 357, Subchapter I. Interest on penalties is governed by Health and Safety Code §242.069(g).

 

§19.2113  Criteria for the Executive Commissioner to Stay a License Revocation

(a) A license holder may request that the executive commissioner stay a license revocation imposed in accordance with §19.2107 of this chapter (relating to Revocation of a License by the Executive Commissioner). The request must:

(1) be in writing;
(2) be submitted to the department within 10 working days after the license holder receives written notification of the revocation;
(3) explain how the license holder meets the applicable criteria described in subsection (b) of this section;
(4) describe any potential negative impact to residents that may occur if the request for stay is denied;
(5) include any documentation supporting the request; and
(6) be signed by an authorized representative of the license holder.

(b) The executive commissioner grants or denies a request to stay a license revocation imposed in accordance with §19.2107 of this chapter if the license holder requests a stay in accordance with subsection (a) of this section. The executive commissioner may grant the request if, based on a review of the request and any other relevant documentation, the executive commissioner determines that:

(1) the stay would not jeopardize the health and safety of the residents or place the residents at risk of abuse or neglect based on the following criteria;

(A) no more than one of the violations that resulted in the proposed revocation was widespread in scope;
(B) the facility’s regulatory record, other than the three violations that resulted in the proposed revocation, encompassing five years preceding the date of the stay request, does not reflect a history of substandard quality of care violations;
(C) if the license holder requesting the stay holds licenses for other facilities, the license holder’s overall performance does not reflect a history of substandard quality of care violations related to abuse or neglect; and
(D) there are no other factors that will jeopardize the health and safety of the residents or place the residents at risk of abuse or neglect;

(2) the request submitted by the license holder demonstrates that:

(A) the license holder has explained why:

(i) the violations that resulted in the proposed revocation are not indicative of the overall quality of care provided at the facility; and
(ii) granting the stay will not jeopardize the health and safety of the residents or place the residents at risk of abuse or neglect and is likely to result in future compliance with licensure requirements;

(B) the license holder has conducted a system-wide analysis of the facility that identifies all underlying problems that led to or contributed to the violations that resulted in the proposed revocation and has developed a plan to address those problems; and
(C) the license holder has initiated action to implement the plan;

(3) the license holder meets one of the following criteria:

(A) a rapid response team determines that the facility has cooperated with the team and has demonstrated improvement in quality of care as described in §19.911 of this chapter (relating to Rapid Response Team); or
(B) for a “veteran’s home,” as defined in Texas Natural Resources Code §164.002, the Texas Veterans Land Board contracts with a different entity to operate the home than the entity that operated the home during the period in which the violations described by §19.2107 of this chapter occurred; and

(4) the license holder has entered into a stay agreement acceptable to the executive commissioner that, at a minimum, includes:

(A) a requirement that the license holder complete actions to address the underlying causes that resulted in the violations that led to the proposed revocation in accordance with a schedule;
(B) a requirement that the license holder not receive a violation that constitutes an immediate threat to health and safety or that results in actual harm to a resident for a period of time after the effective date of the stay agreement as determined by the executive commissioner, but no less than 12 months; and
(C) a waiver of the license holder’s right to request a hearing if the stay is lifted and the revocation is imposed in accordance with subsection (d)(2) of this section.

(c) For purposes of subsection (b)(4)(B) of this section, a facility has received a violation that constitutes an immediate threat to health and safety or that results in actual harm to a resident if the violation is cited and upheld in informal dispute resolution, if requested.

(d) If the executive commissioner grants a license holder’s request for a stay in accordance with this section:

(1) the stay is lifted and the revocation is rescinded if the executive commissioner determines the license holder has successfully completed all requirements of the stay agreement described in subsection (b)(4) of this section in accordance with the schedule described in subsection (b)(4)(A) of this section; or
(2) the stay is lifted and the revocation is imposed if the executive commissioner determines the license holder has not successfully completed all requirements of the stay agreement described in subsection (b)(4) of this section in accordance with the schedule described in subsection (b)(4)(A) of this section. 

 

§19.2114 Right to Correct

(a) HHSC may not collect an administrative penalty if, not later than the 45th day after the date the facility receives notice, the facility corrects the violation.
(b) If the facility reports to HHSC that the violation has been corrected, HHSC inspects the facility for the correction or take any other steps necessary to confirm that the violation has been corrected and notifies 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.

(c) The facility must request a hearing on the violation no later than the 20th day after the date on which the notice is sent.
(d) Subsection (a) of this section does not apply to:

(1) a violation that HHSC determines:

(A) results in serious harm to or death of a resident;
(B) constitutes a serious threat to the health or safety of a resident; or
(C) substantially limits the facility's capacity to provide care;

(2) the violations listed in §19.214(a)(2)-(6) of this title (relating to Criteria for Denying a License or Renewal of a License);
(3) the violation of a resident right; or
(4) a violation listed in 19.2112(a)(8) or (9) of this chapter (relating to Administrative Penalties).

(e) A facility that corrects a violation under subsection (a) of this section must maintain the correction. If the facility fails to maintain the correction until the first anniversary of the date the correction was made, HHSC may assess an administrative penalty equal to three times the amount of the original penalty assessed, but not collected. HHSC does not provide a facility an opportunity to correct the subsequent violation.

 

§19.2115 Amelioration of Violation

(a) In lieu of demanding payment of an administrative penalty, the commissioner may allow the person to use, under 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 nursing 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 an institution 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 that 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 nursing 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.

 

§19.2116 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, unless the trustee is placed in a veterans home. When a trustee is placed in a veterans home (as defined in Natural Resources Code, §164.002), the Veterans Land Board pays the trustee's fee.
(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. If the funds are not repaid within the year, DHS may determine that the facility is not eligible for a Medicaid contract.
(f) Any amount remaining due at the end of one year becomes delinquent and will be referred to the attorney general.

 

§19.2118 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 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 §19.2116 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 monetary, civil, or administrative penalties.

 

§19.2119 Open Hearing

(a) HHSC holds an open hearing in a facility if HHSC:

(1) has taken a punitive action against the facility in the preceding 12 months, or
(2) receives a complaint that HHSC has reasonable cause to believe is valid from the State Ombudsman, a certified ombudsman, an ombudsman intern, an advocate, resident, or relative of a resident relating to a serious or potentially serious problem in the facility.

(b) Only one hearing regarding a specific facility is held each year unless HHSC determines that, in the interest of resident health and safety, more should be held.
(c) HHSC mails notice of the time, date, and place of the hearing at least ten days before the hearing to:

(1) the facility;
(2) the designated closest living relative or legal guardian of each resident; and
(3) appropriate state and federal agencies that work with the facility.

(d) The facility is responsible for furnishing to HHSC a listing of the name and current mailing address of each resident's designated closest living relative, legal guardian, or responsible party.
(e) HHSC may exclude a facility's administrator and personnel from the hearing.
(f) HHSC confidentially notifies the complainant of the results of the investigation which followed the complaint.
(g) HHSC notifies the facility of any complaints which are received at the hearing and provide a summary of those complaints to the facility. HHSC does not identify the source of the complaints.

 

Division 3, Remedies in Medicaid-Certified Facilities

 

§19.2120 Definitions Pertaining to Medicaid Remedies

The following term, when used in this undesignated head, Remedies in Medicaid-Certified Facilities, shall have the following meaning, unless the context clearly indicates otherwise.
Accountability period - A 24-month period which begins each time the Texas Department of Human Services (DHS) imposes on a facility a required Category II or III remedy. Accountability periods may overlap.

 

§19.2121 General Provisions

Enforcement actions in Medicaid-certified facilities are performed according to regulations found in 42 Code of Federal Regulations §§431.151, 431.153, 488.301, 488.325(g), 488.330, 488.331, 488.335, and 488.400-488.456.

 

§19.2129 Interest on Civil Money Penalties

Interest on civil money penalties accrues at the rate of 10% from the date specified in Code of Federal Regulations §488.442 until paid.

 

§19.2144 Procedures Following Termination of the Provider Agreement

(a) The Texas Department of Human Services (DHS) may continue payments for no more than 30 days from the date DHS cancels a facility's provider agreement if DHS determines that:

(1) reasonable efforts are being made to transfer the residents to another facility, to community care, or to other alternate care; and
(2) additional time is needed to effect an orderly transfer of the residents.

(b) When a facility's provider agreement is terminated by DHS, the department will not enter into another provider agreement with the facility until 30 days have expired. If the facility reapplies for a provider agreement, DHS conducts an on-site visit to determine if the facility is complying with Medicaid requirements. If the facility is complying with Medicaid requirements and a provider agreement with the facility is not prohibited by DHS debarment rules, DHS enters into a provider agreement with the facility. This remedy will be applied in any category which results in the termination of the provider agreement.

 

§19.2146 Termination of Provider Agreement on the Basis of the Imposition of Enforcement Actions Three Times Within an Accountability Period

(a) When the Provider Enrollment Section of the Texas Department of Human Services (DHS) determines that DHS or the Health Care Financing Administration has imposed required Category II or III remedies (as designated on the chart in 59 Federal Register, 56183) on a facility three times within an accountability period, a recommendation is made to terminate the facility's provider agreement, unless DHS makes an affirmative finding that good cause exists to waive this requirement to facilitate a change in ownership to protect residents of a facility.
(b) DHS notifies the facilities in writing of its intention to terminate the facility's provider agreement. Notification occurs within:

(1) three calendar days from receipt of the recommendation of remedies for facilities found in immediate jeopardy; or
(2) fifteen calendar days from receipt of the recommendation of remedies for facilities not found in immediate jeopardy.

(c) The provider agreement is terminated on the 20th day after the facility receives notice of DHS's decision to terminate the provider agreement.
(d) The appeal for this remedy is the appeal on the issue of noncompliance that led to the imposition of enforcement actions for the third time within the accountability period. Appeals for this remedy follow the federal procedures in 42 Code of Federal Regulations (CFR) 498 for dually-participating facilities or in 42 CFR 431 for Medicaid-only facilities.

 

§19.2147 Informal Dispute Resolution

The Texas Department of Human Services (DHS) provides an informal dispute resolution process (IDR) in the central office, as follows:

(1) A written request, all supporting documentation, and registration information as required under paragraph (3) of this section, must be submitted to the Texas Department of Human Services, Long Term Care-Regulatory, ATTN: IDR Coordinator, P.O. Box 149030 (MC-E-343), Austin, TX 78714-9030, no later than the 10th calendar day after receipt of the official statement of deficiencies.
(2) DHS will complete the IDR process no later than the 30th calendar day after receipt of the facility's written request, all documentation, and required registration information.
(3) Any individual representing a facility in an IDR must register with DHS and disclose the following:

(A) the individual's employment history during the preceding five years, including employment in regulatory agencies of this state and other states;
(B) ownership, including the identity of the controlling person or persons, of the facility the person is representing before DHS; and
(C) the identity of other entities the person represents or has represented before the agency during the previous 24 months.

 

§19.2148 Arbitration

A facility may elect arbitration as provided in 1 TAC Chapter 163 (relating to Arbitration Procedures for Certain Enforcement Actions of the Department of Human Resources).

 

§19.2149 Exclusions

This undesignated head governs the cancellation of current Texas Department of Human Services (DHS) Medicaid contracts with nursing facilities; debarment of former or potential contractors is governed by §§69.275-69.279 of this title (concerning Debarment and Suspension of Current and Potential Contractor's Rights, Causes for and Conditions of Debarment, Causes for and Conditions of Suspension, Proof Required for Debarment and Suspension, and Notice Requirements for Debarment and for Suspension).

 

§19.2150 Fraud Referral

None of the options described in this undesignated head are intended to restrict the Texas Department of Human Services (DHS) from imposing, as necessary, appropriate remedies for program violations listed in §79.2105 of this title (relating to Grounds for Fraud Referral and Administrative Sanction).

 

§19.2151 Construction

The remedies provided under this undesignated head are in addition to those otherwise available under state and federal law and are not to be construed as limiting any other remedies, including any remedy available to an individual at common law.

NFRLMC, Subchapter W, Certification of Facilities for Care of Persons with Alzheimer's Disease and Related Disorders

Revision 18-3

 

 

§19.2208 Standards for Certified Alzheimer's Facilities

 

(a) General requirements.

(1) Residents eligible for admission to Alzheimer's units will have a diagnosis of Alzheimer's disease or related disorders. The need for admission to the Alzheimer's unit must be documented by the attending physician.
(2) Security and safety measures are provided to prevent the residents from harming themselves or leaving designated indoor or outdoor areas without supervision by staff members or other responsible escort. Policies will also be provided to prevent abuse of the rights and property of other residents.
(3) Understanding that security measures to prevent wandering may infringe on resident rights, care must be exercised in the use of physical, or chemical restraint. The specific purpose and time-limited orders for any additional physical or chemical restraint must be written and renewed according to facility policy. The frequency of such renewal must not exceed 60 days.
(4) Activity and recreational programs will be provided and utilized to the maximum extent possible for all residents in order to promote physical well being and help with behavior management. The program must be tailored to the individual resident's needs, being appropriate for his specific impairment and stage of disease.
(5) Residents are provided privacy in treatment and in care for his or her personal needs.
(6) Access to outdoor areas must be provided and such areas must have suitable walls or fencing that do not allow climbing or present a hazard.
(A) The minimum distance of the fence from the building must be:
(i) 8'-0" from the building if there are no window openings; or
(ii) 20'-0" from bedroom window if the fencing is solid and 15'-0" from bedroom window if the fencing is open similar to chain-link.
(B) The minimum area of enclosure must be 800 square feet. Exception: If the enclosed space has an area of refuge which extends beyond a minimum of 20'-0" from the building and the area of refuge is equal to or greater than 15 square feet per resident for the wings enclosed.
(C) An exit gate from the enclosure to a public way must comply with the following criteria:
(i) A minimum of two gates must be remotely located from each other if only one wing or exit is enclosed. If the enclosed space between the building and the fence is less than 10'-0", one of the remotely located exit gates must be directly in line with the building exit door.
(ii) If doors into two or more smoke compartments are enclosed by the fencing and entry access can be made at each door, a minimum of one gate is required.
(iii) The gates must be located to provide a continuous path of travel from the building exit to a public way including walkways of concrete, asphalt, or other approved materials suitable for wheeled beds, chairs, and stretchers. Gates and walkways must be wide enough to accommodate beds and wheelchairs.
(D) If gate are locked, the gate nearest the exit from the building must be locked with an electronic lock which operates the same as electronic locks on corridor control doors and/or exit doors and is in compliance with the NFPA 70 for exterior exposure. Additional gates may also have electronic locks or may have keyed locks provided staff carry the keys. A gate between two enclosed wings may have a keyed lock provided access can be gained into both wings from the exterior.
(E) Fencing material must comply with the following:
(i) Wood — no limit on height, should be constructed with posts and support members on the exterior to deter residents from climbing over fence.
(ii) Wire — if chain-link type fence, provide protection on top of the fence to prevent resident injury from pointed wire.
(7) Any security measures taken to provide for the safety of wandering patients should be as unobtrusive as possible.
(8) Toxic garden plantings must be prohibited.

(b) Staff.

(1) All assigned staff members and consultants to the unit must have documented training in the care and handling of Alzheimer's residents, including at least:
(A) eight hours of orientation to cover the following:
(i) facility Alzheimer's policies;
(ii) etiology and treatment of dementias;
(iii) stages of Alzheimer's disease;
(iv) behavior management; and
(v) communication; and
(B) four hours of the required annual continuing education must be in Alzheimer's disease or related disorders.
(2) A social worker, licensed or temporarily licensed by the State of Texas, must be utilized as Community/Family Support Coordinator whose functions must include:
(A) evaluation of resident's initial social history on admission;
(B) utilization of community resources;
(C) conducting quarterly family support group meetings; and
(D) identification and utilization of existing Alzheimer's network.
(3) Specially trained staff will be maintained and assigned exclusively to the Alzheimer's unit. Although emergency scheduling may require substitution of staff, every effort should be made to provide residents with familiar staff members in order to minimize resident confusion. Staff training will meet at least the minimum requirements in subsection (a)(2) of this section.
(4) Required overall minimum staffing ratios for direct care in certified Alzheimer's units in nursing facilities are as follows:
SHIFT STAFF : RESIDENTS
7:00 a.m. - 3:00 p.m. (Day) 1 : 6
3:00 p.m. - 11:00 p.m. 1 : 10
11:00 p.m. - 7:00 a.m. 1 : 18


(c) Physical plant. Alzheimer's units must be segregated from other parts of a facility with appropriate security devices and measures and must meet the following requirements.

(1) Living rooms, day rooms, lounges, and sun rooms, must be provided on a sliding scale as follows:
Number of Beds Area Per Bed (Minimum)
4 - 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 (Example: 100 beds equals 1,000 square feet)
(2) A dining area must a minimum of 10 square feet per resident with at least one exterior window.
(3) Bathtubs or showers must be provided at a minimum rate of one for each 20 beds in nursing facilities.
(4) Water closets and lavatories must be provided at a minimum rate of:
(A) one for each eight beds in nursing facilities; and
(B) one for each 15 clients in adult day health care facilities.
(5) In all facilities a lavatory must be provided in or adjacent to each area having a water closet.
(6) A monitoring station for staff must be provided with the following:
(A) writing surface such as a desk or built-in counter top;
(B) chair;
(C) task illumination;
(D) communication system such as a telephone or intercom to the main staff station of the facility; and
(E) storage for resident records such as a lockable metal cabinet or storage closet.
(7) Two remote exits must be provided in order to meet NFPA 101 requirements.
(8) Corridor control doors, if used for security of the residents, must be similar to smoke doors, that is, be 44 inches in width each leaf, and must swing in opposite directions. A latch or other fastening device on a door must 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.
(9) Locking devices may be used on the control doors provided the following criteria are met.
(A) The building must have a complete sprinkler system and a complete fire alarm system including a corridor smoke detection system or smoke detectors located in each resident bedroom, which are interconnected into the fire alarm system.
(B) The locking device must be electronic and must be released when the following occurs:
(i) activation of the fire alarm or sprinkler systems;
(ii) power failure to the facility; and
(iii) pressing a button located at the main staff station and at the monitoring station.
(C) Key pad or buttons may be located at the control doors for routine use by staff for service.
(D) Upon loss of primary power, the control doors must not automatically reset on emergency power, but must be reset by manual means only. An exception is when the control doors are not in an exit access, they may automatically reset on emergency power. There must be at least two remote exits on each side of the control doors which meet all of the requirements for exits, such as proper width of egress and proper size of exterior doors, according to the NFPA 101.
(E) Staff must be trained in the methods of releasing the locking device.
(10) The exit doors may be equipped with a locking device provided one of the following methods is met:
(A) the locking arrangement meets the requirements for Delayed Egress Locking Systems in NFPA 101, or
(B) the following criteria which have been approved by CMS:
(i) The building must have a complete fire alarm system including a corridor smoke detection system or smoke detectors located in each resident bedroom and a complete sprinkler system which are interconnected to the fire alarm system.
(ii) The locking device must be electro-magnetic; that is, no type of throw-bolt is to be used.
(iii) The device must release when the following occurs:
(I) activation of the fire alarm or sprinkler system;
(II) power failure to the facility; and
(III) activating a switch located at the main staff station and at the monitoring station.
(iv) Upon loss of primary power, the exit doors must not automatically reset on emergency power, but must be reset by manual means only.
(v) A manual fire alarm pull must be located within 5'0" of the exit door with a sign stating, "Pull to release door in an emergency."
(vi) A key pad, card, control button, or other electronic device may be located at the exit door for routine use by staff.
(vii) Staff must be trained in the methods of releasing the locking device.

NFRLMC, Subchapter X, Requirements For Medicaid-Certified Facilities

Revision 18-3

 

 

§19.2301 Conditions for Participation as a Medicaid-Certified Facility

(a) The facility must meet the following conditions to be approved by the Texas Department of Human Services (DHS) for participation in the Title XIX Texas Medical Assistance program and receive state and federal reimbursement for services to Title XIX residents:

(1) the facility has been certified by DHS as meeting the conditions of participation, including the requirement to have a license from DHS, in the Title XIX Texas Medical Assistance program;
(2) the entity licensed to operate the facility has filed a complete application with the Provider Enrollment Section of DHS for participation as a nursing facility in the Title XIX Texas Medical Assistance program; and
(3) the beds for which the facility wishes to contract meet the requirements of §19.2322 of this title (relating to Medicaid Allocation Requirements).

(b) Only a facility with a fully executed current contract with DHS may receive state and federal reimbursement for services toTitle XIX recipients

 

§19.2302 Requirements for a Contracted Medicaid Facility

(a) This section applies to nursing facilities (NFs) that have been licensed and certified as eligible for participation underTitle XIX.
(b) Each nursing facility (NF) must comply with the state requirements for participation and the facility's contract on a continuing basis.
(c) Each NF must comply with the Texas Health and Human Services Commission's (HHSC's) utilization review requirements as provided in 1 TAC §371.212 (relating to Minimum Data Set Assessments and §371.214 (relating to Resource Utilization Group Classification System).
(d) A facility may not participate in the Texas Medical Assistance Program if it has restrictive policies or practices, including:

(1) requiring the resident to make a will, with the facility named as legatee or devisee;
(2) requiring the resident to assign his life insurance to the facility;
(3) requiring the resident to transfer property to the facility;
(4) requiring the resident to pay a lump sum entrance fee or make any other payment or concession to the facility beyond the recognized rate for board, room, and care as a condition for entry, departure, or continued stay;
(5) controlling or restricting the resident, the resident's guardian, or responsible party in the use of the resident's personal needs allowance;
(6) restricting the resident from leaving the facility at will except as provided by state law;
(7) restricting the resident from applying for Medicaid for a specified period of time;
(8) denying appropriate care to an individual on the basis of his race, religion, color, national origin, sex, age, disability, marital status, or source of payment; and
(9) preventing terminally ill adult residents from exercising their will in making written or unwritten directives to reject life-sustaining procedures.

(e) If the DADS has documentation showing good cause, it reserves the right to reject the facility's participation or to cancel an existing contract if the facility charges the Title XIX resident, any member of his family, or any other source for supplementation or for any item except as allowed within DADS policies and regulations.
(f) If DADS suspends a facility's vendor payments or proposes to terminate a facility's contract, the facility may request an administrative hearing to challenge the action. If a facility requests a hearing, the facility must make the request in accordance with HHSC rules at 1 TAC Chapter 357, Subchapter I.
(g) DADS' interpretations of the requirements for participation or the contract may not be appealed to HHSC's hearings department unless the interpretation has caused an adverse action for the facility.
(h) Facilities must allow representatives of DADS, the Medicaid Fraud Control Unit, and the Department of Health and Human Services to enter the premises at any time to make inspections or to privately interview the residents receiving assistance from DADS.
(i) Facilities must supply DADS complete information according to federal and state requirements about the identity of:

(1) each person who directly or indirectly owns interest of 5% or more in the facility;
(2) each owner (in whole or in part) of any property, assets, mortgage, deed of trust, note, or other obligation secured by the facility;
(3) each officer and director, if the facility is organized as a corporation;
(4) each partner, if the facility is organized as a partnership (A copy of the partnership agreement is required, but the dollar amount of capital contributions of the partners may be omitted); and
(5) any director, officer, agency, or managing employee of the institution, agency, or organization, who has ever been convicted of a criminal offense related to the person's involvement in programs established by Title XVIII, XIX, and XX. (Effective dates for disclosure of any convictions are July 1, 1966, for Medicare, and January 1, 1969, for Medicaid.)

(j) If a profit-making corporation operates the facility, a copy of the following material is required:

(1) certificate of incorporation (for Texas corporations only);
(2) certificate of authority to do business in Texas (for out-of-state corporations only);
(3) a resolution from the board of directors authorizing a specific person or officer to sign contracts between DADS and the corporation; and
(4) any management contract for the facility. If no stockholder owns, directly or beneficially, 5.0% or more of the corporate stock, the president and secretary of the corporation should state this on the department form.

(k) If a nonprofit corporation operates the facility, a copy of the following material is required:

(1) certificate of incorporation (for Texas corporations only);
(2) certificate of authority to do business in Texas (for out-of-state corporations only);
(3) a resolution from the board of directors authorizing a specific person or officer to sign contracts with DADS; and
(4) a copy of any management contract for the facility.

(l) Facilities other than those described in subsections (j) and (k) of this section must furnish a copy of:

(1) charter or other legal basis for the organization which owns the facility;
(2) any management contract or agreement for the facility;
(3) by-laws of the organization (if applicable); and
(4) other information required by DADS to determine the status of the legal entity that owns the facility.

(m) Facilities must disclose business transaction information. A facility must send to DADS, within 35 days after the date of a written request, complete information on:

(1) the ownership of a subcontractor with whom the facility has had, during the previous 12 months, business transactions totaling more than $25,000; and
(2) any business transactions between the facility and any wholly owned supplier, or between the facility and any subcontractor during the five-year period ending on the date of the request.

(n) The facility must report changes in the required information promptly to DADS.
(o) Failure to provide this information may result in suspension, termination, or other contract action, including holding vendor funds. Payment to the facility is denied beginning on the day after the date information was due, and ending on the day before the date the information is received by DADS.
(p) Each facility must comply with Government Code, §531.116. A facility that furnishes services under the Medicaid program is subject to Occupations Code, Chapter 102. The facility's compliance with that chapter is a condition of the facility's eligibility to participate as a facility under those programs.

 

§19.2304 Contract Requirements

(a) The Texas Department of Human Services (DHS) may enter into a contract with the facility.
(b) Nursing facilities (NFs) must comply with all state and federal requirements for participation.
(c) The contracting nursing facility agrees to:

(1) Comply with Title VI of the Civil Rights Act of 1964 (Public Law 88-352), §504 of the Rehabilitation Act of 1973 (Public Law 93-112), the Age Discrimination Act of 1975, the Americans with Disabilities Act of 1990 (Public Law 101-336), the Safe Medical Devices Act of 1990, and all amendments to each, and all requirements imposed by the regulations issued pursuant to these acts. In addition, the contractor agrees to comply with Title 40, Chapter 73, of the Texas Administrative Code. These provide in part that no persons in the United States shall, on the grounds of race, color, national origin, sex, age, disability, political beliefs or religion be excluded from participation in, or denied, any aid, care, service or other benefits provided by federal and/or state funding, or otherwise be subjected to discrimination.
(2) Comply with Texas Health and Safety Code, Chapter 85, Subchapter E (relating to workplace and confidentiality guidelines regarding AIDS and HIV).
(3) Comply with 42 Code of Federal Regulations, Part 455, Program Integrity: Medicaid.

 

§19.2306 Effective Dates of Provider Contracts

(a) The effective date of the provider contract for an initial certification is the date the on-site survey is completed if the facility meets:

(1) all federal health and safety standards; and
(2) any other requirements imposed by the Texas Department of Human Services (DHS).

(b) If the facility does not meet any of the requirements specified for an initial certification, the contract is effective on the earlier of the following dates:

(1) the day the facility meets all requirements; or
(2) the day the facility's correction plan, approvable waiver request, or both are accepted by DHS. The facility must have met all requirements imposed by DHS.

 

§19.2308 Change of Ownership

(a) Definition. An ownership change is defined in §19.210(c) of this title (relating to Temporary Change of Ownership). For purposes of this section, prior owner is defined as the legal entity with a Medicaid contract for the facility before the change of ownership. The new owner is the legal entity to which DADS has assigned the contract (in accordance with 42 CFR §442.14 and subsection (d) of this section). The effective date of the ownership change is the effective date of the new owner's license for the facility.
(b) Notice of ownership change. The prior owner must give DADS written notice of a change of ownership at least 30 days before the effective date of the change. If written notice of the change is not received 30 days before the agreed change date, DADS is not responsible for payments made to the prior owner or new owner that do not reflect the established change date. DADS will not make a duplicate payment. It is the responsibility of the prior and new owner to make arrangements between themselves for such contingencies.
(c) Vendor holds based on a change of ownership.

(1) Holds on payments due to a prior owner.
(A) When DADS receives information about a proposed or actual change of ownership, DADS may place vendor payments to the prior owner on hold. Vendor payments will not be released until the Texas Health and Human Services Commission notifies DADS that the prior owner meets the final reporting requirements as specified in 1 TAC §355.306 (relating to Cost Finding Methodology) and 1 TAC §355.308(f)(1)(A) (relating to Direct Care Staff Rate Component).
(B) Once the final reporting requirements in subparagraph (A) of this paragraph are met, vendor payments may still be held so that money owed to DADS can be recouped from the funds placed on hold. Vendor payments will be released after:
(i) completion of a billing and claims reconciliation, or the passing of a time period of 12 months after the effective date of the change of ownership, whichever is sooner; or
(ii) the prior owner provides, at DADS' option, either of the following documents in a format acceptable to DADS to cover possible liabilities of the prior owner:
(I) a surety bond or an irrevocable letter of credit as described in §19.2312 of this title (relating to Surety Bonds or Letters of Credit); or
(II) written authority by the prior owner to withhold and retain funds normally due the prior owner from other Medicaid contracts the prior owner may have with DADS.
(2) Waiving holds on payments due to a prior owner.
(A) DADS may waive placing vendor payments to the prior owner on hold, if, at least 60 days before the effective date of the change of ownership:
(i) the prior owner notifies DADS of the change of ownership;
(ii) the new owner provides DADS with a signed and notarized contract application;
(iii) DADS receives information sufficient to verify that the ownership change is a reorganization of the prior owner's ownership structure and that the new owner's ownership structure:
(I) consists of individuals who owned at least 51% of the ownership in the prior owner and own at least 51% of the ownership in the new owner;
(II) does not consist of a change in a general partner, if the prior owner's ownership structure was a limited partnership; and
(III) retains control of the prior owner's financial records; and
(iv) the prior owner returns to DADS the nontransferable DADS Successor Liability Agreement (provided by DADS) signed by the prior and new owners indicating that the new owner has agreed to pay DADS for any liabilities that exist or may be found to exist during the period of the prior owner's contract with DADS.
(B) Meeting the conditions in subparagraph (A) of this paragraph but not meeting the 60-day time frame may result in DADS placing vendor payments to the prior owner on hold; however, once all of the conditions listed in subparagraph (A) of this paragraph are met, the hold will be released.
(3) Holds on payment due to the new owner.
(A) During the period between the issuance of the temporary change of ownership license and the inspection or survey of the nursing facility, DADS may not place a hold on vendor payments to the temporary license holder.
(B) If the nursing facility fails to pass the inspection or survey or fails to meet the requirements in §19.201 of this title (relating to Criteria for Licensing), DADS may place a hold on vendor payments to the new owner.

(d) Contract assignment. When a change in ownership occurs, DADS automatically assigns the agreement to the new owner by issuing a new contract. By signing the contract, the new owner is representing to DADS that the new owner meets the requirements of the contract and the requirements for participation in the Medicaid program. The new owner's contract is subject to the prior owner's contract terms and conditions that were in effect at the time of transfer of ownership, including the following:

(1) any plan of correction;
(2) compliance with health and safety standards;
(3) compliance with the ownership and financial interest disclosure requirements of 42 CFR §§455.104, 455.105, and 1002.3;
(4) compliance with civil rights requirements in 45 CFR Parts 80, 84, and 90;
(5) compliance with additional requirements imposed by DADS; and
(6) any sanctions as specified in this chapter relating to remedies for violations of Title XIX nursing facility provider agreements, including deficiencies, vendor holds, compliance periods, accountability periods, monetary penalties, notification for correction of contract violations, probationary contracts, and history of deficiencies.

(e) Medical assistance payments nontransferable. Neither medical assistance nor amounts payable to vendors out of public assistance funds are transferable or assignable at law or in equity. DADS will not allow non-split agreements in the case of ownership changes. Non-split agreements are arrangements where DADS does not interrupt payments to prior and new owners but continues reimbursements as though no ownership change has occurred. A split in pay agreement ensures that payments to the prior ownerstop on a certain date and payments for services thereafter go to the new owner.
(f) Owner agreements. The new owner and the prior owner of a nursing facility may reach any agreement they wish, but DADS will not participate in a non-split procedure which would allow the new owner to receive the prior owner's accrued vendor payments.
(g) Financial records. The prior owner of the facility may remove the financial records pertaining to his period of ownership from the facility, but must maintain them for the time period prescribed by law or until such time as all audit exceptions are reconciled, whichever period is the longer. The original copies of the trust fund records, including ledger cards, maybe removed by the prior owner if an exact duplicate of the trust fund records, including ledger cards, remains with the new owner.

 

§19.2310 Nursing Facility Ceases to Participate

A nursing facility may voluntarily terminate or be involuntarily terminated from Medicaid participation. A facility must have policies and procedures in place to ensure that the administrator's duties and responsibilities include providing the appropriate notices in the event of a Medicaid termination.

(1) If a facility voluntarily closes and ceases providing nursing facility services, the facility must comply with this paragraph.
(A) The facility must close on the first day of a month.
(B) At least 75 days before closure, the administrator must submit to the HHSC regional director a plan for relocation of all residents. The plan must:
(i) provide for the transfer and adequate relocation of the residents;
(ii) include assurances that residents are transferred to the most appropriate facility or other setting in terms of quality, services, and location, taking into consideration the needs, choice, and best interests of each resident; and
(iii) be revised as necessary to obtain HHSC approval.
(C) At least 60 days before closure, the administrator must submit written notice of the closure that includes the approved closure plan and the closure date to:
(i) the secretary or the secretary's designee;
(ii) HHSC Regulatory Services;
(iii) the State Ombudsman;
(iv) each resident; and
(v) each resident's legal representative or responsible party.
(D) The notice to each resident and the resident's legal representative or responsible party must include the information required by §19.502(f) of this chapter (relating to Transfer and Discharge in Medicaid-certified Facilities).
(E) The facility must not admit any new residents on or after the date the written notice is submitted.
(F) The facility must have the resources to operate through the closure date.
(2) If HHSC or CMS terminates a facility's Medicaid provider agreement, the facility must comply with this paragraph.
(A) At least 15 days before the notice date set by HHSC or CMS, the administrator must submit to the HHSC regional director a plan for relocation of all residents. The plan must:
(i) provide for the transfer and adequate relocation of the residents;
(ii) include assurances that residents are transferred to the most appropriate facility or other setting in terms of quality, services, and location, taking into consideration the needs, choice, and best interests of each resident; and
(iii) be revised as necessary to obtain HHSC approval.
(B) By the date set by HHSC or CMS, the administrator must submit written notice of the closure that includes the approved plan and the closure date to:
(i) the secretary or secretary's designee;
(ii) HHSC Regulatory Services;
(iii) the State Ombudsman;
(iv) each resident; and
(v) each resident's legal representative or responsible party.
(C) The notice to each resident and the resident's legal representative or responsible party must include the information required by §19.502(f) of this chapter.
(D) The facility must not admit any new residents on or after the date the notice is submitted.
(3) If a facility voluntarily withdraws from Medicaid but continues to provide nursing facility services, the facility must comply with this paragraph.
(A) The facility may not use the withdrawal as a reason to transfer or discharge a resident who was residing in the facility on the day before the effective withdrawal date.
(B) The facility is deemed to have a provider agreement with regard to any resident who was residing in the facility on the day before the effective withdrawal date and who is eligible for Medicaid or who later becomes eligible for Medicaid.
(C) The facility must:
(i) provide oral and written notice to an individual who is admitted after withdrawal from Medicaid that:
(I) the facility is not participating in the Medicaid program with respect to new residents; and
(II) the facility may transfer or discharge a resident if the resident does not pay the facility charges even though the resident may have become eligible for Medicaid nursing facility services;
(ii) provide the written notice in a prominent manner on a separate page of the admission agreement when the resident is admitted; and
(iii) have the resident sign a written receipt, separate from other signed documents, that the resident received the information in the written notice.

 

§19.2312 Surety Bonds or Letters of Credit

(a) If the facility has a change in ownership or termination of a contract (voluntary or involuntary), the prior owner's and/or the new owner's vendor payments may be held. Usually, the amount held is equal to the facility's average monthly payments.
(b) At its sole option, the Texas Department of Human Services (DHS) may allow the prior owner to obtain a surety bond or an irrevocable letter of credit (collateral) and release the vendor payments on hold. Money owed DHS by the prior owner for any reason will be recovered through the surety bond or the letter of credit. Usually, the surety bond equals the average monthly vendor payments paid to the facility. Facilities terminating a contract for long-term care services may furnish a surety bond or letter of credit only if:

(1) all required long-term care facility cost reports have been filed with the Texas Health and Human Services Commission (HHSC) Rate Analysis Department;
(2) all required long-term care facility staffing and compensation reports have been filed with HHSC's Rate Analysis Department; and
(3) funds identified for recoupment from 1 TAC §355.803(n) or (o) or both (relating to Direct Care Staff Rate Component) have been repaid to HHSC or its designee.

(c) If an acceptable surety bond or letter of credit is presented to DHS, the vendor payments may be released. Facilities must ensure that this bond or irrevocable letter of credit is in a format acceptable to DHS, and does not include requirements that DHS, as a condition of receiving payment, either:

(1) return the original bond or letter; or
(2) submit to any draft requirement of an irrevocable letter of credit or surety bond, in addition to DHS's letter demanding payment.

 

§19.2314 Financial Audits

(a) The Texas Department of Human Services (DHS) may audit all facilities, including facilities' trust fund accounts, periodically. A facility is notified of audit plans and is given a report of the final audit findings. If vendor payment problems are found, Provider Enrollment requests that the Nursing Facility Billing Unit work with the facility to reconcile the discrepancies. If the findings show that refunds are due residents or their responsible parties, Provider Enrollment requests that the regional staff assist the facility in reconciling the audit findings. Facilities which fail to provide documentation for audit exceptions or evidence of federally-mandated surety bonds or fail to keep other records required for audit are subject to the withholding of vendor payments until such problems are resolved. Money owed to DHS will be recouped from the funds placed on hold.
(b) Upon receipt of an audit exception, the facility must provide additional documentation, reach a final agreement, make restitution within 60 days, or request a hearing within 15 days. Requests for an informal hearing are to be directed to DHS, Provider Enrollment. Requests for a formal hearing are to be directed to DHS's Hearings Department, P.O. Box 149030 (W-613), Austin, Texas 78714-9030.
(c) If the facility does not pay the amount due the resident within the specified time frame, DHS may withhold other funds due the facility beginning on the 60th day without providing advance notice. DHS releases funds when the facility produces documentation that it has refunded the proper amount to the resident or responsible party.
(d) DHS may require the facility to pay the resident refund amount to DHS plus any anticipated cost, including personnel salaries, which is incurred by DHS in making the refund to the proper party.

 

§19.2316 Collection of Applied Income

(a) Nursing facilities may collect from the recipient only the applied income that is specified on the recipient's payment plan forms, except when that amount exceeds the monthly vendor rate. In this event, the facility may collect only an applied-income amount equal to the maximum monthly Medicaid vendor rate.
(b) If a payment plan appears incorrect, the facility administrator should contact the local Texas Department of Human Services(DHS) worker to correct the plan. Even if a recipient's income increases, the administrator must not collect an increased payment until the plan is changed. The administrator should not collect an increased payment in anticipation of a payment plan increase.
(c) If an admitted recipient does not have a payment plan, the administrator should contact the local worker for help in determining how much applied income is owed. If the forthcoming forms indicate a lesser payment, the administrator should refund the excess immediately and notify the worker.
(d) Facilities that collect payments (part applied income, part Medicaid) in excess of the vendor rate are in violation of DHS regulations and of Public Law 95-142 which makes "solicitation of supplementation" a felony.
(e) Regional DHS staff must report any violations. If an investigation shows that the facility has violated this standard, a recommendation for withholding vendor payments, contract termination, referral to the courts, or other contract action may be made.
(f) The nursing facility must refund the recipient's prorated applied income money when the recipient has paid in advance for the full month and is discharged from the facility any time during the month. The facility must make the refund within 30 calendar days from and including the date of discharge, even when vendor payment has not been received from DHS.

 

§19.2318 Computation of Daily Reimbursement Rate for Recipients with Applied Income

(a) Reimbursement is computed by multiplying the established daily rate by the number of days in the month. The recipient's applied income is then subtracted and the result is divided by the number of days in the month.
(b) A facility may not collect more than the applied income reported on the payment plan form in a 31-day month.

 

§19.2320 Medical Transportation

(a) The nursing facility is responsible for providing normal transportation for the recipient to medical services outside the facility. The attending physician must have ordered the medical services.
(b) Normal transportation is to and from the medical care provider of the recipient's choice, who is generally available and used by recipients of the locality for medical care included under the Texas Medical Assistance program. If a Title XIX provider is not in the locality, transportation is to and from the nearest appropriate Title XIX provider if the recipient so chooses. The term "locality" means the service area surrounding the nursing facility from which individuals ordinarily come or are expected to come for inpatient or outpatient services.
(c) Transportation charges, including non-emergency, routine ambulance services, involved in the certification or recertification of a recipient are the responsibility of the nursing facility.
(d) The facility may not charge the state's Medicaid health insuring agent, the recipient, the family, or responsible party for normal transportation as defined in this section. Normal transportation charges are covered in the monthly vendor rate. The facility may not use the state's Medicaid community-based Title XIX medical transportation program except to transport recipients for renal dialysis treatments.
(e) Charges for the following medically necessary ambulance services, when provided by a Medicaid-enrolled provider, are not the responsibility of the nursing facility, but are payable by the state's Medicaid health insuring agent as a Medicaid benefit:

(1) emergency transport, which is ambulance service for a Medicaid recipient with an emergency medical condition. Emergency medical condition is defined as one which manifests itself by acute symptoms of sufficient severity such that the absence of immediate medical attention could result in placing the recipient's health in serious jeopardy; and
(2) nonemergency transport, under the following conditions:
(A) the recipient is severely disabled, which is defined as a condition which limits mobility and requires confinement to bed at all times, prevents sitting unassisted at all times, or requires the monitoring of life support systems, including oxygen or intravenous infusion;
(B) the severely disabled recipient cannot be transported by any means other than an ambulance without endangering the health or safety of the recipient; and
(C) the nonemergency ambulance transportation of the severely disabled recipient is to or from a scheduled medical appointment and authorization has been received from the Texas Department of Health or its designee. If payment under the medical assistance program is denied because the facility failed to obtain prior authorization, the facility must pay for the service if presented a copy of the bill for which payment was denied.

(f) If ambulance services are reimbursable by the state's Medicaid health insuring agent, they are not the responsibility of the recipient, the family, or the responsible party.
(g) Nursing facilities are encouraged to use family, friends, sponsors, civic groups, or charitable organizations as resources for transportation services. If normal transportation is not obtainable from these sources, the facility must provide or purchase the appropriate services.

 

§19.2322 Medicaid Bed Allocation Requirements

(a) Definitions. The words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise.

(1) Applicant — An individual or entity requesting a bed allocation waiver or exemption.
(2) Assignment of rights — The Health and Human Services Commission (HHSC) conveyance of a specific number of allocated Medicaid beds from a nursing facility or entity to another entity for purposes of constructing a new nursing facility or for any other use as authorized by this chapter.
(3) Bed allocation — The process by which HHSC controls the number of nursing facility beds that are eligible to become Medicaid-certified in each nursing facility.
(4) Bed certification — The process by which HHSC certifies compliance with state and federal Medicaid requirements for a specified number of Medicaid beds allocated to a nursing facility.
(5) County or precinct occupancy rate — The number of residents, regardless of source of payment, occupying certified Medicaid beds in a county divided by the number of Medicaid beds allocated in the county, including Medicaid beds that are certified and Medicaid beds that have been allocated but are not certified. In the four most populous counties in the state, the occupancy rate is calculated for each county commissioner precinct.
(6) Licensee — The individual or entity, including a controlling person, that is:
(A) an applicant for licensure by HHSC under Chapter 242 of the Texas Health and Safety Code and for Medicaid certification;
(B) licensed by HHSC under Chapter 242 of the Texas Health and Safety Code; or
(C) licensed under Chapter 242 of the Texas Health and Safety Code and holds the contract to provide Medicaid services.
(7) Lien holder — The individual or entity that holds a lien against a physical plant.
(8) Multiple-facility owner — An individual or entity that owns, controls, or operates under lease two or more nursing facilities within or across state lines.
(9) Occupancy rate — The number of residents occupying certified Medicaid beds divided by the number of certified Medicaid beds in a nursing facility.
(10) Open solicitation period — A period during which an individual or entity may apply for an allocation of Medicaid beds in a high-occupancy county or precinct.
(11) Physical plant — The land and attached structures to which beds are allocated or for which an application for bed allocation has been submitted.
(12) Property owner — The individual or entity that owns a physical plant.
(13) Transfer of beds — HHSC conveyance of a specific number of allocated Medicaid beds from an existing nursing facility or entity to another existing licensed nursing facility. The nursing facility may use the transferred Medicaid beds to increase the number of Medicaid-certified beds currently licensed or to increase the number of Medicaid-certified beds when additional licensed beds are added to the nursing facility in the future.

(b) Purpose. The purpose of this section is to control the number of Medicaid beds that HHSC contracts, to improve the quality of resident care by selective and limited allocation of Medicaid beds, and to promote competition.
(c) Bed allocation general requirements. The allocation of Medicaid beds is an opportunity for the property owner or the lessee of a nursing facility to obtain a Medicaid nursing facility contract for a specific number of Medicaid-certified beds.

(1) Medicaid beds are allocated to a nursing facility and remain at the physical plant where they were originally allocated, unless HHSC transfers or assigns the beds.
(2) When HHSC allocates Medicaid beds to a nursing facility as a result of actions by the licensee, HHSC requires that the beds remain allocated to the physical plant, even when the licensee ceases operating the nursing facility, unless HHSC assigns or transfers the beds.
(3) Notwithstanding any language in subsections (f) and (g) of this section and the fact that applicants for bed allocation waivers and exemptions may be licensees or property owners, HHSC allocates beds to the physical plant and the owner of that property controls the Medicaid beds subject to HHSC rules and requirements and all valid physical plant liens.

(d) Control of beds. Except as specified in this section, HHSC does not accept applications for a Medicaid contract for nursing facility beds from any nursing facility that was not granted:

(1) a valid certificate of need (CON) by the Texas Health Facilities Commission before September 1, 1985;
(2) a waiver or exemption approved by the Department of Human Services before January 1, 1993; or
(3) a valid order that had the effect of authorizing the operation of the nursing facility at the bed capacity for which participation is sought.

(e) Level of acceptable care. Unless specifically exempted from this requirement, applicants and controlling persons of an applicant for Medicaid bed allocation waivers or exemptions must comply with level of acceptable care requirements. Level of acceptable care requirements apply only in determining bed allocation waiver and exemption eligibility and have no effect on other sections of this chapter.

(1) HHSC determines a waiver or exemption applicant or a controlling person of an applicant complies with level of acceptable care requirements if, within the preceding 24 months, the applicant or controlling person:
(A) has not received any of the following sanctions:
(i) termination of Medicaid or Medicare certification;
(ii) termination of Medicaid contract;
(iii) denial, suspension, or revocation of a nursing facility license;
(iv) cumulative Medicaid or Medicare civil monetary penalties totaling more than $5,000 per facility;
(v) civil penalties pursuant to §242.065 of the Texas Health and Safety Code; or
(vi) denial of payment for new admissions;
(B) does not have a pattern of substantial or repeated licensing and Medicaid sanctions, including administrative penalties or other sanctions; and
(C) does not have a condition listed in §19.214(a) of this chapter (relating to Criteria for Denying a License or Renewal of a License).
(2) HHSC considers the criteria in paragraph (1) of this subsection to determine if local facilities provide a level of acceptable care in counties, communities, ZIP codes or other geographic areas that are the subject of a waiver application. HHSC only considers sanctions that are final and are not subject to appeal when determining if a local facility complies with level of acceptable care requirements.
(3) Nursing facilities that have received any of the sanctions listed in paragraph (1) of this subsection within the previous 24 months are not eligible for an allocation of Medicaid beds under subsection (h) of this section or an allocation of additional Medicaid beds under subsection (f) of this section. In the case of sanctions against the nursing facility to which the beds would be allocated that are appealed, either administratively or judicially, an application will be suspended until the appeal has been resolved. Sanctions that have been administratively withdrawn or were subsequently reversed upon administrative or judicial appeal are not considered.
(4) If an applicant for an allocation of additional Medicaid beds or a controlling person of an applicant is a multiple-facility owner or a multiple-facility owner owns the applicant, the multiple-facility owner must demonstrate an overall record of complying with level of acceptable care requirements. HHSC considers the number of facilities that have received sanctions listed in paragraph (1) of this subsection in relation to the number of facilities that the multiple-facility owner owns to determine if a multiple-facility owner meets level of acceptable care requirements. HHSC only considers sanctions that are final and are not subject to appeal when determining whether the multiple-facility owner's facilities not receiving the new bed allocation comply with level of care requirements.
(5) When the applicant is a licensee that has operated a nursing facility less than 24 months, the nursing facility must establish at least a 12-month compliance record immediately preceding the application in which the nursing facility has not received any of the sanctions listed under paragraph (1) of this subsection.
(6) When the applicant has no history of operating nursing facilities, HHSC will review the compliance record of health-care facilities operated, managed, or otherwise controlled by controlling parties of the applicant. If a controlling party or the applicant has never operated, managed, or otherwise controlled any health-care facilities, a compliance review is not required.
(7) The executive commissioner, or the executive commissioner's designee, may make an exception to any of the requirements in this subsection if the executive commissioner or the executive commissioner's designee determines the needs of Medicaid recipients in a local community will be served best by granting a Medicaid bed allocation waiver or exemption. In determining whether to make an exception to the requirements, the executive commissioner or the executive commissioner's designee may consider the following:
(A) the overall compliance record of the waiver or exemption applicant;
(B) the current availability of Medicaid beds in facilities that comply with level of acceptable care requirements in the local community;
(C) the level of support for the waiver or exemption from the local community;
(D) the way a waiver or exemption will improve the overall quality of care for nursing facility residents; and
(E) the age and condition of nursing facility physical plants in the local community.

(f) Exemptions. HHSC may grant an exemption from the requirements in subsection (d) of this section. All exemption actions must comply with the requirements in this subsection and with requirements of the Centers for Medicare & Medicaid Services (CMS) regarding bed capacity increases and decreases. When a bed allocation exemption is approved, the licensee must comply with the requirements in §19.201 of this chapter (relating to Criteria for Licensing) at the time of licensure and Medicaid certification of the new beds or nursing facility.

(1) Replacement Medicaid nursing facilities and beds. An applicant may request that HHSC approve replacement of allocated Medicaid beds by the construction of one or more new nursing facilities.
(A) The applicant must own the physical plant where the beds are allocated or possess a valid assignment of rights to the Medicaid beds.
(B) The applicant must obtain written approval by all lien holders of the physical plant where the beds are allocated before requesting HHSC approval to relocate the Medicaid beds to the replacement facility if the replacement facility will be constructed at a different address than the current facility. The applicant must submit the lien holder approval with the replacement nursing facility request. If the physical plant where the Medicaid beds are allocated does not have a lien, the applicant must submit a written attestation of that fact with the replacement nursing facility request.
(C) Replacement nursing facility applicants, including those who obtained the rights to the beds through a HHSC assignment of beds, must comply with the level of acceptable care requirements in subsection (e) of this section, unless the applicant for a replacement nursing facility is the current property owner.
(D) HHSC may grant a replacement facility an increase of up to 25 percent of the currently allocated Medicaid beds, if the applicant complies with the level of acceptable care requirements in subsection (e) of this section. HHSC will not transfer or assign the additional allocation of beds until they are certified at the replacement facility.
(E) The physical plant of the replacement nursing facility must be located in the same county in which the Medicaid beds currently are allocated.
(2) Transfer of Medicaid beds. An applicant may request HHSC transfer allocated Medicaid beds certified or previously certified to another physical plant.
(A) The applicant must own the physical plant where the beds are allocated, or the applicant must present HHSC with:
(i) a valid Medicaid bed transfer agreement that specifies the number of additional Medicaid beds the applicant is requesting HHSC allocate to the receiving nursing facility; or
(ii) a valid Medicaid bed assignment that specifies the number of additional Medicaid beds the applicant is requesting HHSC allocate to the receiving nursing facility.
(B) If the Medicaid beds are allocated to a specific physical plant, the applicant must obtain and submit written approval from the property owner and, if the physical plant has a lien, written approval from all lien holders to obtain a HHSC transfer of the Medicaid beds to another facility. If the physical plant where the Medicaid beds are allocated does not have a lien, the applicant must submit a written attestation of that fact with the transfer request.
(C) The receiving licensee must comply with level of acceptable care requirements in subsection (e) of this section.
(D) Both facilities must be located in the same county.
(3) High-occupancy facilities. Medicaid-certified nursing facilities with high occupancy rates may periodically apply to HHSC to receive bed allocation increases.
(A) The occupancy rate of the Medicaid beds of the applicant nursing facility must be at least 90.0 percent for nine of the previous 12 months prior to the application.
(B) The application for additional Medicaid beds may be for no more than 10 percent (rounded to the nearest whole number) of the facility's Medicaid-certified nursing facility beds.
(C) The applicant nursing facility must comply with level of acceptable care requirements in subsection (e) of this section.
(D) The applicant nursing facility may reapply for additional Medicaid beds no sooner than nine months from the date of the previous allocation increase.
(E) Medicaid beds allocated to a nursing facility under this requirement may only be certified at the applicant nursing facility. HHSC does not transfer or assign the additional allocation of beds until they are certified at the applicant nursing facility.
(4) Non-certified nursing facilities. Licensed nursing facilities that do not have Medicaid-certified beds may apply to HHSC for an initial allocation of Medicaid beds.
(A) The application for Medicaid beds may be for no more than 10 percent (rounded to the nearest whole number) of the facility's licensed nursing facility beds.
(B) The applicant nursing facility must comply with level of acceptable care requirements in subsection (e) of this section.
(C) After the applicant nursing facility receives an allocation of Medicaid beds, the facility may apply for additional Medicaid beds in accordance with paragraph (3) of this subsection.
(5) Low-capacity facilities. For purposes of efficiency, nursing facilities with a Medicaid bed capacity of less than 60 may receive additional Medicaid beds to increase their capacity up to a total of 60 Medicaid beds.
(A) The nursing facility must be licensed for less than 60 beds and have a current certification of less than 60 Medicaid beds.
(B) The nursing facility must have been Medicaid-certified before June 1, 1998.
(C) The applicant licensee must comply with level of acceptable care requirements in subsection (e) of this section.
(D) Facilities that have a Medicaid capacity of less than 60 beds due to the loss of Medicaid beds under provisions in subsection (j) of this section are not eligible for this exemption.
(6) Spend-down Medicaid beds. Licensed nursing facilities may apply to HHSC for temporary spend-down Medicaid beds for residents who have “spent down” their resources to become eligible for Medicaid, but for whom no Medicaid bed is available. A HHSC approval of spend-down Medicaid beds allows a nursing facility to exceed temporarily its allocated Medicaid bed capacity.
(A) The applicant nursing facility must have a Medicaid contract with a Medicaid bed capacity of at least 10 percent of licensed capacity authorized in paragraph (4) of this subsection. If the nursing facility is not currently Medicaid-certified, the licensee must be approved for Medicaid certification and obtain a Medicaid contract with a Medicaid bed capacity at least as large as that authorized in paragraph (4) of this subsection.
(B) All Medicaid or dually certified beds must be occupied by Medicaid or Medicare recipients at the time of application.
(C) The application for a spend-down Medicaid bed must include documentation that the person for whom the spend-down bed is requested:
(i) was not eligible for Medicaid at the time of the resident's most recent admission to the nursing facility; and
(ii) was a resident of the nursing facility for at least the immediate three months before becoming eligible for Medicaid, excluding hospitalizations.
(D) The nursing facility is eligible to receive Medicaid benefits effective the date the resident meets Medicaid eligibility requirements.
(E) The nursing facility must assign a permanent Medicaid bed to the resident as soon as one becomes available.
(F) Facilities with multiple residents in spend-down beds must assign permanent Medicaid beds to those residents in the same order the residents were admitted to spend-down beds.
(G) The assignment of residents in spend-down beds to permanent Medicaid beds must precede the admission of new residents to permanent beds.
(H) The nursing facility must notify HHSC immediately upon the death or permanent discharge of the resident or transfer of the resident to a permanent Medicaid bed. Failure of the nursing facility to notify HHSC of these occurrences in a timely manner is basis for denying applications for spend-down Medicaid beds.
(I) The nursing facility is not required to comply with level of acceptable care requirements in subsection (e) of this section.

(g) Waivers. The executive commissioner or the executive commissioner’s designee may grant a waiver of the requirements stated in subsection (d) of this section under certain conditions.

(1) Applicants must meet the following conditions to be eligible for the specific waivers in subsection (h) of this section.
(A) The applicant must meet the level of acceptable care requirement in subsection (e) of this section.
(B) The applicant must submit a complete HHSC waiver application.
(C) At the time of licensure and Medicaid certification of the allocated beds, the licensee must comply with the requirements in §19.201 of this chapter.
(D) A waiver recipient or a subsequent waiver assignee must, at the time of licensure and Medicaid certification, be the property owner or the licensee of the facility where Medicaid beds allocated through the waiver process are certified.
(2) A waiver recipient may request that HHSC approve the assignment of an approved waiver to another entity in accordance with this paragraph. A waiver recipient may request HHSC approval of only one assignment. A waiver assignment is not valid unless and until it is approved by HHSC.
(A) The waiver recipient or the owner of the waiver recipient must maintain majority ownership and management control of the assignee.
(B) The assignee must not have an owner or controlling person who was not an owner or controlling person of the waiver recipient.
(C) The assignee must own the physical plant of the waiver facility at the time of licensure and certification (as landlord) or be the licensee at the time of licensure and certification (as the licensed operator). Under either circumstance, the allocated beds are subject to subsection (c) of this section.
(D) The assignee must meet the requirements in subsection (e) of this section regarding level of acceptable care.
(3) A waiver recipient entity may remove a controlling person from ownership of the entity, but the waiver recipient entity must not add an owner after the waiver is approved by HHSC. A change to the ownership of the waiver recipient entity or the waiver assignment entity must be reported to HHSC.
(4) HHSC may in its sole discretion determine that a waiver applicant that submits false or fraudulent information is not eligible for a waiver. HHSC may, in its sole discretion, revoke a waiver issued and decertify Medicaid beds issued based on false or fraudulent information provided by the applicant.
(5) Except as provided in paragraphs (6) – (9) of this subsection, HHSC considers waiver applications in the order in which they are received. A waiver applicant may request that review of its application be deferred until one or more applications submitted after its application has been reviewed. This request must be in writing.
(6) HHSC gives priority to a small house waiver application submitted in accordance with subsection (h)(9) of this section over a pending community needs waiver application submitted in accordance with subsection (h)(2) of this section for the same county. If approved, HHSC includes the small house facility beds when determining the need for a community needs waiver.
(7) During any period in which HHSC is processing a waiver application in accordance with subsection (h)(2), (4), (5), or (9) of this section, HHSC may suspend processing the waiver application for up to six months if HHSC determines the county or precinct occupancy rate of the county or precinct in which the site of the proposed waiver is located is at least 85 percent during at least six of the previous nine months. HHSC calculates the occupancy rate based on the monthly Medicaid occupancy reports submitted to HHSC by Medicaid-certified nursing facilities and includes the occupancy rate of certified Medicaid beds and allocated Medicaid beds that are encumbered for future certification as a result of approval of a waiver or exemption in the subject county or precinct.
(8) HHSC initiates the high occupancy county or precinct waiver process referenced in subsection (h)(1) of this section if HHSC determines requirements for the open solicitation process for a high occupancy county or precinct waiver are met during the temporary suspension period referenced in paragraph (7) of this subsection. HHSC does not process any pending waiver applications in the affected county or precinct until the open solicitation process referenced in subsection (h)(1) of this section is complete.
(9) HHSC continues to process a suspended waiver application in the affected county or precinct if HHSC determines requirements for the open solicitation process of the high occupancy county or precinct waiver are not met during the suspension period referenced in paragraph (7) of this subsection.

(h) Specific waiver types. HHSC may grant a waiver if it determines that Medicaid beds are necessary for the following circumstances. (1) High occupancy waiver. A high occupancy waiver is designed to meet the needs of counties and certain precincts that have a high county or precinct occupancy rate for multiple months.

(A) HHSC monitors monthly county or precinct occupancy rates. If HHSC determines that a county or precinct occupancy rate equals or exceeds 85 percent for at least nine of the previous twelve months, HHSC may initiate a waiver process by placing a public notice in the Texas Register and the Electronic State Business Daily (ESBD) to announce an open solicitation period.
(B)The public notice announces that HHSC may allocate 90 additional Medicaid beds in the county or precinct.
(C) The notice identifies the county or precinct and the beginning and end dates of the solicitation period. The notice also includes the HHSC address to which the application for additional Medicaid beds must be submitted and specifies that the application must be received by HHSC before the close of business on the end date of the solicitation period.
(D) An applicant for additional Medicaid beds must comply with the level of acceptable care requirements in subsection (e) of this section.
(E) An applicant must submit a complete HHSC waiver application.
(F) At the end of the solicitation period, HHSC determines if an applicant is eligible for additional Medicaid beds. If multiple applicants are eligible, the applicant who will receive the allocation of beds will be chosen by a lottery selection.
(G)If no application for the waiver process is received or if no applicant meets the requirements in this section, HHSC conducts no further solicitation. HHSC closes the process without allocating Medicaid beds.
(H)An applicant that is granted a high occupancy waiver must provide to HHSC a performance bond, surety bond, or an irrevocable letter of credit in the amount of $500,000 payable to HHSC to ensure that the Medicaid beds granted to the applicant under the waiver are certified within the time periods required by subsection (i)(4)(G) of this section, including any extensions granted under subsection (i)(6) of this section. HHSC will revoke a waiver if the performance bond, surety bond, or irrevocable letter of credit is not provided within 90 days after HHSC approves the waiver application.
(I)If an applicant chooses to provide a performance bond or surety bond instead of an irrevocable letter of credit, the performance bond or surety bond provided under this subchapter must:
(i)be executed by a corporate entity in accordance with Texas Insurance Code, Chapter 3503, Subchapter A;
(ii)be in a form approved by HHSC; and
(iii)clearly and prominently display on the face of the bond:
(I)the name, mailing address, physical address, and telephone number of the surety company or financial institution to which any notice of claim should be sent; or
(II)the toll-free telephone number maintained by the Texas Department of Insurance in accordance with Texas Insurance Code, Chapter 521, Subchapter B, and a statement that the address of the surety company to which any notice of claim should be sent may be obtained from the Texas Department of Insurance by calling the toll-free telephone number.
(J)If an applicant chooses to provide an irrevocable letter of credit, the irrevocable letter of credit must be issued by a banking institution or similar financial institution.
(K)An applicant must notify HHSC at least 60 days in advance if:
(i)the applicant does not intend to renew its performance bond, surety bond, or irrevocable letter of credit on the annual renewal date; or
(ii)the applicant changes the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.
(L)An applicant may choose a performance bond, surety bond, or irrevocable letter of credit and substitute one for the other over the course of development and construction, but regardless of which option is chosen, the performance bond, surety bond, or irrevocable letter of credit must continue in effect until the facility is certified to participate in the Medicaid program or until paid to HHSC after notice provided in accordance with subparagraph (M) of this paragraph.
(M)A performance bond, surety bond, or irrevocable letter of credit is immediately due and must be paid to HHSC upon receipt of notice from HHSC to the issuer of the performance bond, surety bond, or irrevocable letter of credit that:
(i)the applicant did not comply with subsection (i)(4)(G) of this section, which may include an extension granted under subsection (i)(6) of this section;
(ii)HHSC revokes the applicant's waiver;
(iii)the applicant did not notify HHSC of its intent not to renew the performance bond, surety bond, or irrevocable letter of credit at least 60 days before its automatic annual renewal date; or
(iv)the applicant did not notify HHSC of a change in the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.
(2) Community needs waiver. A community needs waiver is designed to meet the needs of communities that do not have reasonable access to acceptable nursing facility care.
(A) The applicant must submit a demographic or health needs study, prepared by an independent professional experienced at preparing demographic or health needs studies, that documents:
(i) an immediate need for additional Medicaid beds in the community; and
(ii) Medicaid residents in the community do not have reasonable access to acceptable nursing facility care.
(B) The application must include a statement by the preparer of the study that the preparer has no interest, financial or otherwise, in the outcome of the waiver application.
(C) The demographic or health needs study must include at least the following information pertaining to the community’s population:
(i) population growth trends;
(ii) population growth trends specific to the elderly, including income or financial condition;
(iii) Medicaid bed occupancy data;
(iv) level of acceptable care provided by local nursing facilities; and
(v) any existing allocated Medicaid beds not currently certified but that could be used for a new Medicaid nursing facility.
(D) The applicant must submit documentation of substantial community support for the new nursing facility or beds.
(E) When determining the immediate need for additional Medicaid beds, and whether residents have reasonable access to acceptable nursing facility care, HHSC considers:
(i) the number and occupancy rate of certified Medicaid beds that comply with level of acceptable care requirements; and
(ii) the number of encumbered Medicaid beds that have been approved by HHSC but are not yet certified.
(F) Replacement beds or waiver beds approved in accordance with subsection (f)(1) or (h) of this section will not be considered in the calculation in subparagraph (D) of this paragraph if the owner of the replacement beds or waiver beds has not purchased land for a new construction site within 24 months after the date HHSC initially approves the replacement request or the waiver for the beds.
(G) HHSC considers an application withdrawn if it is not completed within 90 days after the application is submitted to HHSC.
(H) HHSC notifies local nursing facilities when a complete community needs waiver application is received and affords local nursing facilities an opportunity to comment on the waiver application. The notification includes a deadline for submission of comments. HHSC limits subsequent comments during the review process to facilities that submit timely comments in response to the notification of a completed application.
(I) An applicant that is granted a community needs waiver must provide to HHSC a performance bond, surety bond, or an irrevocable letter of credit in the amount of $500,000 payable to HHSC to ensure that the Medicaid beds granted to the applicant under the waiver are certified within the time periods required by subsection (i)(4)(G) of this section, including any extensions granted under subsection (i)(6) of this section. HHSC will revoke a waiver if the performance bond, surety bond, or irrevocable letter of credit is not provided within 90 days after HHSC approves the waiver application.
(J) If an applicant chooses to provide a performance bond or surety bond, instead of an irrevocable letter of credit, the performance bond provided under this subparagraph must:
(i) be executed by a corporate entity in accordance with Texas Insurance Code, Chapter 3503, Subchapter A;
(ii) be in a form approved by HHSC; and
(iii) clearly and prominently display on the face of the bond:
(I) the name, mailing address, physical address, and telephone number of the surety company or financial institution to which any notice of claim should be sent; or
(II) the toll-free telephone number maintained by the Texas Department of Insurance in accordance with Texas Insurance Code, Chapter 521, Subchapter B, and a statement that the address of the surety company to which any notice of claim should be sent may be obtained from the Texas Department of Insurance by calling the toll-free telephone number.
(K)If an applicant chooses to provide an irrevocable letter of credit, the irrevocable letter of credit must be issued by a banking institution or similar financial/lending institution.
(L)An applicant must notify HHSC at least 60 days in advance if:
(i)the applicant does not intend to renew its performance bond, surety bond, or irrevocable letter of credit on the annual renewal date; or
(ii)the applicant changes the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.
(M)An applicant may choose a performance bond, surety bond, or irrevocable letter of credit, and may substitute one for the other over the course of development and construction, but regardless of which option is chosen, the performance bond, surety bond, or irrevocable letter of credit must continue in effect until the facility is certified to participate in the Medicaid program; or until paid to HHSC after notice provided in accordance with subparagraph (N) of this paragraph.
(N)A performance bond, surety bond, or irrevocable letter of credit is immediately due and must be paid to HHSC upon receipt of notice from HHSC to the issuer of the performance bond, surety bond, or irrevocable letter of credit that:
(i)the applicant did not comply with subsection (i)(4)(G) of this section, which may include an extension granted under subsection (i)(6) of this section;
(ii)HHSC revokes the applicant's waiver;
(iii)the applicant did not notify HHSC of its intent not to renew the performance bond, surety bond, or irrevocable letter of credit at least 60 days before its automatic annual renewal date; or
(iv)the applicant did not notify HHSC of a change in the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.
(3) Criminal justice waiver. The criminal justice waiver is designed to meet the needs of the Texas Department of Criminal Justice (TDCJ). The applicant must document that:
(A) the waiver is needed to meet the identified and determined nursing facility needs of TDCJ; and
(B) the new nursing facility is approved by TDCJ to serve persons under their supervision who have been released on parole, mandatory supervision, or special needs parole in accordance with Texas Government Code, Chapter 508, Parole and Mandatory Supervision.
(4) Economically disadvantaged waiver. The economically disadvantaged waiver is designed to meet the needs of residents of ZIP codes located in communities where a majority of residents have an average income below the countywide average income and do not have reasonable access to acceptable nursing facility care.
(A) The applicant must submit a demographic or health needs study, prepared by an independent professional experienced at preparing demographic or health needs studies that documents:
(i) the ZIP code in which the new nursing facility will be constructed has a population with an income that is at least 20 percent below the average income of the county according to the most recent U.S. census or more recent census projection;
(ii) an immediate need for additional Medicaid beds in the ZIP code in which the new nursing facility will be constructed; and
(iii) residents in the ZIP code in which the nursing facility or beds will be located do not have reasonable access to acceptable nursing facility care.
(B) The application must include a statement by the preparer of the study that the preparer has no interest, financial or otherwise, in the outcome of the waiver application.
(C) The demographic or health needs study must include at least the following information pertaining to the community’s population:
(i) population growth trends;
(ii) population growth trends specific to the elderly, including income or financial condition;
(iii) Medicaid bed occupancy data;
(iv) level of acceptable care provided by local facilities; and
(v) any existing allocated Medicaid beds not currently certified but could be used for a new Medicaid nursing facility.
(D) When determining the immediate need for additional Medicaid beds, and whether residents have reasonable access to acceptable nursing facility care, HHSC considers:
(i) the number and occupancy rate of certified Medicaid beds that comply with level of acceptable care requirements; and
(ii) the number of encumbered Medicaid beds that have been approved by HHSC but are not yet certified.
(E) Replacement beds or waiver beds approved in accordance with subsection (f)(1) or (h) of this section will not be considered in the calculation in subparagraph (D) of this paragraph if the owner of the replacement beds or waiver beds has not purchased land for a new construction site within 24 months after the date HHSC initially approves the replacement request or the waiver for the beds.
(F) HHSC considers an application withdrawn if it is not completed within 90 days after the application is submitted to HHSC.
(G) HHSC notifies local nursing facilities when a complete economically disadvantaged waiver application is received and affords local nursing facilities an opportunity to comment on the waiver application. The notification includes a deadline for submission of comments. HHSC limits subsequent comments during the review process to facilities that submit timely comments in response to the notification of a completed application.
(H) An applicant that is granted an economically disadvantaged waiver must provide to HHSC a performance bond, surety bond, or an irrevocable letter of credit in the amount of $500,000 payable to HHSC to ensure that the Medicaid beds granted to the applicant under the waiver are certified within the time periods required by subsection (i)(4)(G) of this section, including any extensions granted under subsection (i)(6) of this section. HHSC will revoke a waiver if the performance bond, surety bond, or irrevocable letter of credit is not provided within 90 days after HHSC approves the waiver application.
(I) If an applicant chooses to provide a performance bond or surety bond instead of an irrevocable letter of credit, the performance bond provided under this subparagraph must:
(i) be executed by a corporate entity in accordance with Texas Insurance Code, Chapter 3503, Subchapter A;
(ii) be in a form approved by HHSC; and
(iii) clearly and prominently display on the face of the bond:
(I) the name, mailing address, physical address, and telephone number of the surety company or financial institution to which any notice of claim should be sent; or
(II) the toll-free telephone number maintained by the Texas Department of Insurance in accordance with Texas Insurance Code, Chapter 521, Subchapter B, and a statement that the address of the surety company to which any notice of claim should be sent may be obtained from the Texas Department of Insurance by calling the toll-free telephone number.
(J) If an applicant chooses to provide an irrevocable letter of credit, the irrevocable letter of credit must be issued by a banking institution or similar financial institution.
(K) An applicant must notify HHSC at least 60 days in advance if:
(i) the applicant does not intend to renew its performance bond, surety bond, or irrevocable letter of credit on the annual renewal date; or
(ii) the applicant changes the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.
(L) An applicant may choose a performance bond, surety bond, or irrevocable letter of credit, and may substitute one for the other over the course of development and construction, but regardless of which option is chosen, the performance bond, surety bond, or irrevocable letter of credit must continue in effect until the facility is certified to participate in the Medicaid program; or until paid to HHSC after notice provided in accordance with subparagraph (M) of this paragraph.
(M) A performance bond, surety bond, or irrevocable letter of credit is immediately due and must be paid to HHSC upon receipt of notice from HHSC to the issuer of the performance bond, surety bond, or irrevocable letter of credit that:
(i) the applicant did not comply with subsection (i)(4)(G) of this section, which may include an extension granted under subsection (i)(6) of this section;
(ii) HHSC revokes the applicant's waiver;
(iii) the applicant did not notify HHSC of its intent not to renew the performance bond, surety bond, or irrevocable letter of credit at least 60 days before its automatic annual renewal date; or
(iv) the applicant did not notify HHSC of a change in the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.
(5) Alzheimer’s waiver. The Alzheimer’s waiver is designed to meet the needs of communities that do not have reasonable access to Alzheimer’s nursing facility services.
(A) The applicant must document that:
(i) the nursing facility is affiliated with a medical school operated by the state;
(ii) the nursing facility will participate in ongoing research programs for the care and treatment of persons with Alzheimer’s disease;
(iii) the nursing facility will be designed to separate and treat residents with Alzheimer’s disease by stage and functional level;
(iv) the nursing facility will obtain and maintain voluntary certification as an Alzheimer’s nursing facility in accordance with §§19.2204, 19.2206, and 19.2208 of this chapter (relating to Voluntary Certification of Facilities for Care of Persons with Alzheimer's Disease; General Requirements for a Certified Facility; and Standards for Certified Alzheimer's Facilities); and
(v) only residents with Alzheimer’s disease or related dementia will be admitted to the Alzheimer’s Medicaid beds.
(B) The applicant must submit a demographic or health needs study, prepared by an independent professional experienced at preparing demographic studies that documents the need for the number of Medicaid Alzheimer’s beds requested. The study must include a statement by the preparer of the study that the preparer has no interest, financial or otherwise, in the outcome of the waiver application.
(C) HHSC notifies local nursing facilities when a complete Alzheimer's waiver application is received and afford local nursing facilities an opportunity to comment on the waiver application. The notification will include a deadline for submission of comments. HHSC limits subsequent comments during the review process to facilities that submit timely comments in response to the notification of a completed application.
(D) HHSC considers an application withdrawn if it is not completed within 90 days after the application is submitted to HHSC.
(E) A facility that has Medicaid beds allocated under provisions of an Alzheimer's waiver may apply for a waiver in accordance with other subsections of this section, including subsection (f)(3) or (4) of this section. HHSC does not count the beds allocated under an Alzheimer's waiver to determine the allowable bed allocation increase. For example, a 120-bed nursing facility with 60 Alzheimer waiver beds would be eligible for 10 percent of the 60 remaining beds or six additional Medicaid beds.
(6) Teaching nursing facility waiver. A teaching nursing facility waiver is designed to meet the statewide needs for providing training and practical experience for health-care professionals. The applicant must submit documentation that the nursing facility:
(A) is affiliated with a state-supported medical school;
(B) is located on land owned or controlled by the state-supported medical school; and
(C) serves as a teaching nursing facility for physicians and related health-care professionals.
(7) Rural county waiver. A rural county waiver is designed to meet the needs of rural areas of the state that do not have reasonable access to acceptable nursing facility care. For purposes of this waiver, a rural county is one that has a population of 100,000 or less according to the most recent census, and has no more than two Medicaid-certified nursing facilities. HHSC approves no more than 120 additional Medicaid beds per county per year and no more than 500 additional Medicaid beds statewide in a calendar year under this waiver provision. HHSC considers a waiver application on a first-come, first-served basis. Requests received in a year in which the 500-bed limit has been met will be carried over to the next year. The county commissioner’s court must request the waiver.
(A) The commissioner’s court must notify HHSC of its intent to consider a rural county waiver and obtain verification from HHSC that the county complies with the definition of rural county.
(B) The commissioner’s court must publish a notice in the Texas Register and in a newspaper of general circulation in the county. The notice must seek:
(i) comments on whether a new Medicaid nursing facility should be requested; and
(ii) proposals from persons or entities interested in providing additional Medicaid-certified beds in the county, including persons or entities currently operating Medicaid-certified facilities with high occupancy rates. HHSC, in its sole discretion, may eliminate from participating in the process persons or entities that submit false or fraudulent information.
(C) The commissioner’s court must determine whether to proceed with the waiver request after considering all comments and proposals received in response to the notices provided under subparagraph (B) of this paragraph. In determining whether to proceed with the waiver request, the commissioner’s court must consider:
(i) the demographic and economic needs of the county;
(ii) the quality of existing Medicaid nursing facilities in the county;
(iii) the quality of the proposals submitted, including a review of the past history of care provided, if any, by the person or entity submitting the proposal; and
(iv) the degree of community support for additional Medicaid nursing facility services.
(D) The commissioner’s court must document the comments received, proposals offered and factors considered in subparagraph (C) of this paragraph.
(E) If the commissioner’s court decides to proceed with the waiver request, it must submit a recommendation that HHSC issue a waiver to a person or entity who submitted a proposal for new or additional Medicaid beds. The recommendation must include:
(i) the name, address, and telephone number of the person or entity recommended for contracting for the Medicaid beds;
(ii) the location, if the commissioner’s court desires to identify one, of the recommended nursing facility;
(iii) the number of beds recommended; and
(iv) the information listed in subparagraph (D) of this paragraph used to make the recommendation.
(F) An applicant that is granted a rural county waiver must provide to HHSC a performance bond, surety bond, or an irrevocable letter of credit in the amount of $500,000 payable to HHSC to ensure that the Medicaid beds granted to the applicant under the waiver are certified within the time periods required by subsection (i)(4)(G) of this section, including any extensions granted under subsection (i)(6) of this section. HHSC will revoke a waiver if the performance bond, surety bond, or irrevocable letter of credit is not provided within 90 days after HHSC approves the waiver application.
(G) If an applicant chooses to provide a performance bond or surety bond, instead of an irrevocable letter of credit, the performance bond or surety bond provided under this subchapter must:
(i) be executed by a corporate entity in accordance with Texas Insurance Code, Chapter 3503, Subchapter A;
(ii) be in a form approved by HHSC; and
(iii) clearly and prominently display on the face of the bond:
(I) the name, mailing address, physical address, and telephone number of the surety company or financial institution to which any notice of claim should be sent; or
(II) the toll-free telephone number maintained by the Texas Department of Insurance in accordance with Texas Insurance Code, Chapter 521, Subchapter B, and a statement that the address of the surety company to which any notice of claim should be sent may be obtained from the Texas Department of Insurance by calling the toll-free telephone number.
(H) If an applicant chooses to provide an irrevocable letter of credit, the irrevocable letter of credit must be issued by a banking institution or similar financial/lending institution.
(I) An applicant must notify HHSC at least 60 days in advance if:
(i) the applicant does not intend to renew its performance bond, surety bond, or irrevocable letter of credit on the annual renewal date; or
(ii) the applicant changes the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.
(J) An applicant may choose a performance bond, surety bond, or irrevocable letter of credit, and may substitute one for the other over the course of development and construction, but regardless of which option is chosen, the performance bond, surety bond, or irrevocable letter of credit must continue in effect until the facility if certified to participate in the Medicaid program; or until paid to HHSC after notice provided in accordance with subparagraph (K) of this paragraph.
(K) A performance bond, surety bond, or irrevocable letter of credit is immediately due and must be paid to HHSC upon receipt of notice from HHSC to the issuer of the performance bond, surety bond, or irrevocable letter of credit that:
(i) the applicant did not comply with subsection (i)(4)(G) of this section, which may include an extension granted under subsection (i)(6) of this section;
(ii) HHSC revokes the applicant's waiver;
(iii) the applicant did not notify HHSC of its intent not to renew the performance bond, surety bond, or irrevocable letter of credit at least 60 days before its automatic annual renewal date; or
(iv) the applicant did not notify HHSC of a change in the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.
(8) State veterans homes. State veterans homes, authorized and built under the auspices of the Texas Veterans Land Board, must meet all requirements for Medicaid participation.
(9) Small house waiver. A small house waiver is designed to promote the construction of smaller nursing facility buildings that provide a homelike environment.
(A) A facility must meet the requirements in §19.345 of this chapter (relating to Small House and Household Facilities) for HHSC to grant a small house waiver for the facility.
(B) An applicant for a small house waiver must submit an application to HHSC and a schematic building plan of the proposed facility with sufficient detail to demonstrate that the proposed project meets the requirements in §19.345 of this chapter.
(C) An applicant that is granted a small house waiver must submit final construction documents in accordance with §19.344 of this chapter (relating to Plans, Approvals, and Construction Procedures) before facility construction begins.
(D) HHSC notifies local nursing facilities when a complete small house waiver application is received and allows the local nursing facilities to comment on the waiver application. The notification includes the deadline for submitting comments. HHSC limits subsequent comments during the review process to facilities that submit timely comments in response to the notification of a completed application.
(E) HHSC does not approve more than 16 beds for a small house facility or for a household in a facility that is granted a small house waiver.
(F) HHSC considers an application withdrawn if it is not completed within 90 days after the application is submitted to HHSC.
(G) Subject to subparagraph (E) of this paragraph, HHSC approves the replacement or transfer of beds certified at a small house nursing facility in accordance with subsection (f)(1) or (2) of this section only to another small house or household facility.
(H) A facility that has Medicaid beds allocated under provisions of a small house waiver may apply for general Medicaid beds in accordance with other subsections of this section, including subsection (f)(3) or (4) of this section. HHSC does not count the beds allocated under a small house waiver provision in determining the allowable bed allocation increase. For example, a 120-bed nursing facility with 60 Small House waiver beds would be eligible for 10 percent of the 60 remaining beds or six additional Medicaid beds.
(I) An applicant that is granted a small house waiver must provide to HHSC a performance bond, surety bond, or an irrevocable letter of credit in the amount of $500,000 payable to HHSC to ensure that the Medicaid beds granted to the applicant under the waiver are certified within the time periods required by subsection (i)(4)(G) of this section, including any extensions granted under subsection (i)(6) of this section. HHSC will revoke a waiver if the performance bond, surety bond, or irrevocable letter of credit is not provided within 90 days after HHSC approves the waiver application.
(J) If an applicant chooses to provide a performance bond or surety bond, instead of an irrevocable letter of credit, the performance bond or surety bond provided under this subparagraph must:
(i) be executed by a corporate entity in accordance with Texas Insurance Code, Chapter 3503, Subchapter A;
(ii) be in a form approved by HHSC; and
(iii) clearly and prominently display on the face of the bond:
(I) the name, mailing address, physical address, and telephone number of the surety company or financial institution to which any notice of claim should be sent; or
(II) the toll-free telephone number maintained by the Texas Department of Insurance in accordance Texas Insurance Code, Chapter 521, Subchapter B, and a statement that the address of the surety company to which any notice of claim should be sent may be obtained from the Texas Department of Insurance by calling the toll-free telephone number.
(K) If an applicant chooses to provide an irrevocable letter of credit, the irrevocable letter of credit must be issued by a banking institution or similar financial/lending institution.
(L) An applicant must notify HHSC at least 60 days in advance if:
(i) the applicant does not intend to renew its performance bond, surety bond, or irrevocable letter of credit on the annual renewal date; or
(ii) the applicant changes the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.
(M) An applicant may choose a performance bond, surety bond, or irrevocable letter of credit, and may substitute one for the other over the course of development and construction, but regardless of which option is chosen, the performance bond, surety bond, or irrevocable letter of credit must continue in effect until the facility is certified to participate in the Medicaid program; or until paid to HHSC after notice provided in accordance with subparagraph (N) of this paragraph.
(N) A performance bond, surety bond, or irrevocable letter of credit is immediately due and must be paid to HHSC upon receipt of notice from HHSC to the issuer of the performance bond, surety bond, or irrevocable letter of credit that:
(i) the applicant did not comply with subsection (i)(4)(G) of this section, which may include an extension granted under subsection (i)(6) of this section;
(ii) HHSC revokes the applicant's waiver;
(iii) the applicant did not notify HHSC of its intent not to renew the performance bond, surety bond, or irrevocable letter of credit at least 60 days before its automatic annual renewal date; or
(iv) the applicant did not notify HHSC of a change in the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.

(i) Time Limits and Extensions.

(1) Medicaid beds transferred in accordance with subsection (f)(2) of this section must be certified within six months after HHSC grants the exemption.
(2) Time limits applicable to temporary Medicaid beds are specified in subsection (f)(6) of this section.
(3) All facilities and beds approved in accordance with waiver provisions of subsection (h) of this section and replacement nursing facilities approved in accordance with subsection (f)(1) of this section, must be constructed, licensed, and Medicaid-certified within 42 months after the waiver or replacement exemption is granted.
(4) A recipient of a waiver must provide HHSC with evidence of compliance with subparagraphs (A) - (G) of this paragraph. The recipient must submit evidence of compliance on or before the date stated in the subparagraph, including any extensions granted under paragraph (6) of this subsection.
(A) The land must be under contract within 12 months after HHSC approval of the waiver or replacement.
(B) An architect or engineer must be under contract to prepare final construction documents within 15 months after HHSC approval of the waiver or replacement.
(C) The facility’s preliminary plans must be completed within 18 months after HHSC approval of the waiver or replacement.
(D) The land must be purchased and a progress report submitted to HHSC within 24 months after HHSC approval of the waiver or replacement.
(E) Entitlements (including municipality, planning and zoning, building permit) and the facility’s foundation must be completed within six months after land purchase or 30 months after HHSC approval of the waiver or replacement, whichever is later.
(F) Facility construction must be active and ongoing, as evidenced by a construction progress report submitted to HHSC within 12 months after land purchase or 36 months after HHSC approval of the waiver or replacement, whichever is later.
(G) The facility must be constructed, licensed, and certified within 18 months after land purchase or 42 months after HHSC approval of the waiver or replacement, whichever is later.
(5) HHSC, in its sole discretion, may declare the exemption or the waiver void if the applicant fails or refuses to provide evidence of compliance with each benchmark or deadline, or the evidence of compliance submitted to HHSC in accordance with paragraph (4) of this subsection contains false or fraudulent information.
(6) Waiver or exemption recipients may request an extension of the deadlines in this section. At the discretion of the executive commissioner or the executive commissioner’s designee, deadlines specified in this section may be extended. The applicant must substantiate every element of its extension request with evidence of good-faith efforts to meet the benchmarks and construction deadlines or evidence confirming that delays were beyond the applicant’s control.
(7) Waiver or exemption recipients who receive an extension of their waiver or exemption must submit a progress report every six months after approval of the extension until the nursing facility beds are certified. HHSC may declare the waiver or exemption void if the applicant fails or refuses to provide the progress report as required or if the progress report contains false or fraudulent information.
(8) HHSC may revoke a bed allocation for failure to meet the requirements of this section.

(j) Loss of Medicaid Beds.

(1) Loss of Medicaid beds that are not available to be occupied.
(A) Medicaid nursing facilities must report certified Medicaid beds that do not comply with requirements of §19.1701 of this chapter (relating to Physical Environment) and are not available for occupancy on monthly Medicaid occupancy reports.
(B) HHSC decertifies and de-allocates Medicaid beds that are intended for use in bedrooms that have been converted to other uses if the rooms are not being used for bedroom occupancy use on two consecutive standard surveys.
(C) HHSC does not decertify and de-allocate Medicaid beds that are intended for use in rooms that are licensed and certified for multi-occupancy use but are being used for single occupancy only.
(D) HHSC decertifies and de-allocates Medicaid beds granted through a criminal justice waiver, Alzheimer's waiver, a teaching nursing facility waiver, state veterans home waiver, or a small house waiver that are no longer being used for the intended purpose for which the waiver was granted.
(2) Loss of Medicaid beds based on sanctions.
(A) A Medicaid nursing facility operated by the person or entity who also owns the property will lose the allocation of all Medicaid beds assigned to the nursing facility property if the nursing facility’s license is denied or revoked.
(B) A Medicaid nursing facility operated by one person or entity and owned by another person or entity will lose the allocation of Medicaid beds if two or more of the following actions occur within a 42-month period:
(i) licensure denial;
(ii) licensure revocation; or
(iii) Medicaid termination.
(C) HHSC may waive this loss of allocation of Medicaid beds in order to facilitate a change of ownership or other actions that would protect the health and safety of residents or assure reasonable access to acceptable nursing facility care.
(3) Voluntary decertification of Medicaid beds.
(A) Facilities may request to voluntarily decertify Medicaid beds.
(B) The licensee must submit written approval of the Medicaid bed reduction signed by the property owner and all physical plant lien holders.
(C) HHSC reduces the number of allocated Medicaid beds equal to the number of beds voluntarily decertified.
(D) Facilities that voluntarily decertify Medicaid beds are eligible to receive an increased allocation of Medicaid beds if the facility qualifies for a bed allocation waiver or exemption.
(4)Nursing facility ceases to operate or participate in Medicaid.
(A) The property owner of a nursing facility that closes or ceases to participate in the Medicaid program must inform HHSC in writing of the intended future use of the Medicaid beds within 90 days after closure or ceasing participation in Medicaid.
(B) Unless the Medicaid beds will be used for a replacement nursing facility, the allocated beds must be re-certified within 12 months of the date the Medicaid contract was terminated.
(C) Time limits in subparagraphs (A) and (B) of this paragraph may be extended in accordance with subsection (i)(6) of this section.
(D) HHSC may de-allocate Medicaid beds for failure to meet the requirements of this paragraph.
(5) Loss of Medicaid beds based on low occupancy.
(A) HHSC may review Medicaid bed occupancy rates annually for the purpose of de-allocating and decertifying unused Medicaid beds. The Medicaid bed occupancy reports for the most recent six-month period that HHSC has validated are used to determine the bed occupancy rate of each nursing facility.
(B) HHSC de-allocates and decertifies Medicaid beds in facilities with an average occupancy rate below 70 percent. The number of beds decertified is calculated by subtracting the preceding six-month average occupancy rate of Medicaid-certified beds from 70 percent of the number of allocated certified beds and dividing the difference by 2, rounding the final figure down if necessary. For example, for a facility with 100 Medicaid-certified beds and a 50 percent occupancy rate, the difference between 70 percent (70 beds) and 50 percent (50 beds) is 20 beds, divided by 2, is 10 beds to be decertified.
(C) Medicaid beds in a nursing facility that has obtained a replacement nursing facility exemption are not subject to the de-allocation and decertification process.
(D) Medicaid beds in a new or replacement physical plant or a newly constructed wing of an existing physical plant are exempt from this de-allocation and decertification process until the new physical plant or new wing has been certified for 24 months.
(E) Medicaid beds that have been subject to a change of ownership within the past 24 months are exempt from the de-allocation and decertification process.
(F) Medicaid beds in a county or in a precinct in one of the four most populous counties in the state in which a facility approved through the waiver process is constructed are exempt from the de-allocation and decertification process for 24 months after licensure and certification of the facility.
(G) Medicaid beds allocated to a closed nursing facility are exempt from this de-allocation and decertification process.
(H) Nursing facilities that lose Medicaid beds through this process are eligible to receive an additional allocation of Medicaid beds at a later date if the facility qualifies for a bed allocation waiver or exemption.
(I) The de-allocation and decertification of unused beds does not affect the licensed capacity of a nursing facility.

(k) Informal review procedures.

(1) A waiver or exemption applicant, or a Medicaid nursing facility that has been denied an increase in Medicaid bed allocation or was subject to decertification or de-allocation of Medicaid beds, may request an informal review of HHSC actions regarding bed allocations. The request must be submitted within 30 days after the date referenced on the notification of the proposed action.
(2) A waiver or exemption applicant or a Medicaid nursing facility that has been denied an increase in Medicaid bed allocation or was subject to decertification or de-allocation of Medicaid beds, must submit a request for an informal review and all documentation or evidence that forms the basis for the informal review in writing.
(3) The executive commissioner or the executive commissioner’s designee conducts the informal review.

(l) Medicaid occupancy reports.

(1) Medicaid nursing facilities must submit occupancy reports to HHSC each month.
(A) The occupancy data must be reported on a form prescribed by HHSC. The form must be completed in accordance with instructions and the occupancy data must be accurate and verifiable. The completed report must be received by HHSC no later than the fifth day of the month following the reporting period.
(B) HHSC determines the Medicaid occupancy rate by calculating the monthly average of the number of persons who occupy Medicaid beds.
(C) HHSC includes all persons residing in Medicaid-certified beds, including Medicaid recipients, Medicare recipients, private-pay residents, or residents with other sources of payment, in the calculation.
(D) Failure or refusal to submit accurate occupancy reports in a timely manner may result in the nursing facility's vendor payment being held in abeyance until the report is submitted.
(2) HHSC determines nursing facility and county occupancy rates based on the data submitted by the nursing facilities.
(A) HHSC uses the occupancy data to determine eligibility for or compliance with waiver and exemption requirements. HHSC also uses the occupancy data to determine if Medicaid beds should be decertified based on low occupancy.
(B) HHSC makes the occupancy data available to nursing facilities, licensees, property owners, waiver or exemption applicants, and others in accordance with public disclosure requirements.
(C) HHSC may disqualify a facility that provides inaccurate or falsified occupancy data from eligibility for bed allocation exemptions and waivers. HHSC may refuse to accept corrections to bed occupancy data submitted more than six months after the due date of the occupancy report.

(m) School-age residents. Any bed allocation waiver or exemption applicant that serves or plans to serve school-age residents must provide written notice to the affected local education agency (LEA) of its intent to establish or expand a nursing facility within the LEA’s boundary.

 

§19.2326 Medicaid Swing Bed Program for Rural Hospitals

(a) Program description. DADS operates the Medicaid Swing Bed Program for rural hospitals located in counties with populations of 100,000 or less. The Medicaid Swing Bed Program is modeled on Medicare's Swing Bed Program. The Medicaid Swing Bed Program permits participating rural hospitals to use their beds interchangeably to furnish both acute hospital care and nursing facility care to Medicaid recipients, when no care beds are available in nursing facilities (NFs) in the area. When a participating rural hospital furnishes NF nursing care to Medicaid recipients, DADS makes payment to the hospital using the same procedures and the same Resource Utilization Group daily rates that the Texas Health and Human Services Commission authorizes for reimbursing NFs participating in the Texas Medicaid Nursing Home Program.
(b) Application to participate. Rural hospitals apply to DADS to participate in the Medicaid Swing Bed Program. Each applicant must be located in a county with a population of 100,000 or less and must meet the qualifying requirements of the Medicare Swing Bed Program. Hospitals approved for participation enter into swing bed provider agreements with DADS.
(c) Parallel participation in Medicare. A rural hospital participating in the Medicaid Swing Bed Program must:

(1) have a Medicare hospital provider agreement; and
(2) be Medicare-certified by the Department of State Health Services (DSHS) as a swing bed hospital in the Medicare Swing Bed Program.

(d) Applicability of Medicare requirements. Each participating rural hospital must satisfy all the requirements of the Medicare Swing Bed Program, except that Medicare's five-weekday transfer requirement, as stated in §482.66(b)(i)-(ii), 42 Code of Federal Regulations, and 15% payment limitation do not apply for Medicaid reimbursement purposes.
(e) Applicability of NF requirements. From day one of the resident's stay, a rural hospital participating in the Medicaid Swing Bed Program must meet the requirements set forth in §19.101 of this title (relating to Definitions); §19.2304(c) of this title (relating to Contract Requirements); §§19.300-19.314 and 19.316 of this title (relating to General Requirements; Applicable Codes and Standards; Waivers; Emergency Power; Space and Equipment; Resident Rooms; Toilet Facilities; Resident Call System; Dining and Resident Activities; Other Environmental Conditions; Site and Grounds; Fire Service and Access; Means of Egress; Interior Finishes - Walls, Ceilings, and Floors; Fire Alarms, Detection Systems, and Sprinkler Systems; and Subdivision of Building Spaces - Smoke Barriers); §§19.1901-19.1914 and 19.1917 of this title (relating to Administration; Governing Body; Required Training of Nurse Aides; Proficiency of Nurse Aides; Staff Qualifications; Use of Outside Resources; Medical Director; Laboratory Services; Radiology and Other Diagnostic Services; Clinical Records; Contents of the Clinical Record; Additional Clinical Record Service Requirements; Clinical Records Service Supervisor; Disaster and Emergency Preparedness; and Quality Assessment and Assurance); §§19.2601-19.2608 and 19.2610 of this title (relating to Subchapter AA, Vendor Payment); Subchapter Y of this title (relating to Medical Necessity Determinations; and Appendix B, Cost Determination Process, and Appendix C, Reimbursement Methodology for Nursing Facilities, of DADS' Nursing Facility Requirements for Licensure and Medicaid Certification Handbook.
(f) Rural hospital (Medicaid swing bed facility) licensure and certification requirements. Pursuant to Texas Health and Safety Code §§222.021, 222.024, and 222.025 concerning the duplication of health care inspections and licensing, a rural hospital participating in the Medicaid Swing Bed Program satisfies licensure and certification requirements referenced in this section when it is currently licensed and certified as a hospital by DSHS. However, in accordance with Texas Human Resources Code, §32.024, if the rural hospital's swing beds are used for more than one 30-day length of stay per year, per resident the hospital must comply with the full Nursing Facility Requirements.
(g) Rural hospital (Medicaid swing bed facility) administrator. The governing body of a rural hospital participating in the Medicaid Swing Bed Program satisfies the requirement to appoint a qualified full-time nursing facility administrator, found at §19.1902(b) (relating to Governing Body), when it appoints a hospital administrator as its official representative and designates the administrator's responsibilities and authority, subject to the following exception. If the swing beds are used for more than one 30-day length of stay per year, per resident, the hospital's governing body must appoint a full-time licensed nursing facility administrator.
(h) Rural hospital (Medicaid swing bed facility) staff development requirements. A rural hospital participating in the Medicaid Swing Bed Program satisfies the staff development requirements found at §19.1929 of this title (relating to Staff Development) if the swing beds are used for no more than one 30-day length of stay per year, per resident.
(i) Rural hospital (Medicaid swing bed facility) transfer agreement. A rural hospital participating in the Medicaid Swing Bed Program is not required to have a transfer agreement with another hospital, as required by §19.1915 (relating to Transfer Agreement).
(j) Rural hospital geographic region. The phrase "a participating rural hospital's geographic region" refers to an area that includes nursing facilities with which the hospital normally arranges transfers and all other nursing facilities in similar proximity to the hospital. If a hospital has no previous transfer practices on which to base a determination, the phrase "geographic region" refers to an area that includes all nursing facilities within 50 miles of the hospital except for facilities that the hospital demonstrates to be inaccessible to its patients.

NFRLMC, Subchapter Y, Medical Review and Re-Evaluation

Revision 08-5

 

§19.2401 General Qualifications for Medical Necessity Determinations

 

Medical necessity is the prerequisite for participation in the Medicaid (Title XIX) Long-term Care program. This section contains the general qualifications for a medical necessity determination. To verify that medical necessity exists, an individual must meet the conditions described in paragraphs (1) and (2) of this section.

(1) The individual must demonstrate a medical condition that:

(A) is of sufficient seriousness that the individual's needs exceed the routine care which may be given by an untrained person; and
(B) requires licensed nurses' supervision, assessment, planning, and intervention that are available only in an institution.

(2) The individual must require medical or nursing services that:

(A) are ordered by a physician;
(B) are dependent upon the individual's documented medical conditions;
(C) require the skills of a registered or licensed vocational nurse;
(D) are provided either directly by or under the supervision of a licensed nurse in an institutional setting; and
(E) are required on a regular basis.

 

§19.2403 Medical Necessity Determination

 

(a) Purpose. A recipient must have a determination of medical necessity for nursing facility care to participate in the Texas Medicaid Nursing Facility Program.

(1) The state Medicaid claims administrator makes a medical necessity determination by evaluating a recipient's medical and nursing needs based on the MDS assessment required by DADS.
(2) A recipient must have a determination of medical necessity for nursing facility care before the nursing facility can be paid for services, except as provided in §19.2413 of this subchapter (relating to Determination of Payment Rate Based on the MDS Assessment Submission) and §19.2611 of this chapter (relating to Retroactive Vendor Payment).

(b) Admission MDS assessment review.

(1) The admission MDS assessment review process is initiated when the state Medicaid claims administrator receives an MDS assessment and the Long-Term Care Medicaid Information Section, in accordance with §19.2413 of this subchapter, indicating that a Medicaid applicant or recipient is requesting vendor payment for care in a contracted nursing facility. A registered nurse must sign and certify that the MDS assessment is completed in accordance with §19.801 of this chapter (relating to Resident Assessment).
(2) The admission MDS assessment review determines medical necessity and establishes the authorization for payment of a calculated RUG rate.

(c) Role of the state Medicaid claims administrator. The state Medicaid claims administrator reviews all MDS assessments, including significant change in status assessments, modifications, and significant corrections, and approves or denies medical necessity in accordance with §19.2401 of this subchapter (relating to General Qualifications for Medical Necessity Determinations).
(d) Effective period.

(1) A determination of medical necessity based on the admission MDS assessment review remains in effect for the time period determined by the federal MDS submission schedule.
(2) If a nursing facility submits a recipient's MDS assessment after the due date established by the federal MDS submission schedule, the recipient's medical necessity remains in effect for the period between the due date and the date the state Medicaid claims administrator received the MDS assessment.
(3) If a nursing facility submits a recipient's MDS assessment after the due date established by the federal MDS submission schedule and, after reviewing the MDS assessment, the state Medicaid claims administrator determines that the recipient does not meet the criteria for medical necessity, the effective date of the denial of medical necessity is the date the state Medicaid claims administrator received the MDS assessment. A denial of medical necessity is conducted in accordance with §19.2407 of this subchapter (relating to Denied Medical Necessity).

(e) Permanent medical necessity.

(1) A recipient's permanent medical necessity status is established on the completion date of any MDS assessment approved for medical necessity no less than 184 calendar days after the recipient's admission to the Texas Medicaid Nursing Facility Program.
(2) A nursing facility must submit a recipient's MDS assessment in compliance with the federal MDS submission schedule even after the recipient achieves permanent medical necessity status.
(3) A recipient's permanent medical necessity status moves with the recipient, unless the recipient is discharged to home for more than 30 days.
(4) If a recipient who has permanent medical necessity status transfers to another Medicaid-certified nursing facility, the nursing facility to which the recipient transfers must complete a new MDS assessment in compliance with the federal MDS submission schedule.

(f) Insufficient information. If an MDS assessment does not have sufficient information for the state Medicaid claims administrator to make a medical necessity determination, the MDS assessment is put in suspense for 21 days with a message from the state Medicaid claims administrator informing the nursing facility that the MDS assessment has been put in suspense for 21 days. Unless the nursing facility provides sufficient information on the MDS assessment to determine medical necessity within 21 days, medical necessity is denied.

 

§19.2405 Physicians' Certifications and Recertifications


The recipient's physician is required at intervals specified in §19.1210(b) of this title (relating to Certification and Recertification Requirements in Medicaid-Certified Facilities) to certify or recertify the necessity for continued nursing facility care.

 

§19.2407 Denied Medical Necessity

 

(a) If the state Medicaid claims administrator determines that a Medicaid applicant or a recipient does not meet the criteria for medical necessity described in §19.2401 of this subchapter (relating to General Qualifications for Medical Necessity Determinations), the state Medicaid claims administrator notifies the attending physician and the nursing facility in writing and provides them an opportunity to present additional information about the applicant's or recipient's medical need for nursing facility care.

(1) If the attending physician or a nursing facility physician does not respond or contest the findings of the state Medicaid claims administrator within 10 working days after receipt of the written notice about the decision, the findings are final.
(2) If the attending physician or a nursing facility physician contests the findings of the state Medicaid claims administrator, at least one physician with the state Medicaid claims administrator must review the case. If the state Medicaid claims administrator's physician determines that the applicant's or recipient's admission or stay is not medically necessary, the determination becomes final.
(3) The state Medicaid claims administrator sends written notification of the final determination of denied medical necessity to the attending physician, the nursing facility, and the applicant or recipient (or responsible party).

(b) After an applicant receives written notice of a determination of denied medical necessity, the applicant or responsible party must request a fair hearing within 90 days after the date of denied medical necessity, or the applicant loses the right to a fair hearing.
(c) After a recipient receives written notice of a determination of denied medical necessity, the recipient or responsible party must request a fair hearing within 10 days after the date of the written notice in order to have nursing facility services paid for during the appeal.

(1) If the recipient requests a fair hearing within 10 days after the date of the written notice and the determination of denied medical necessity is upheld, the effective date of the denial is 10 days after the hearing officer's written decision.
(2) If the recipient does not request a fair hearing within 10 days after the date of the written notice, DADS makes vendor payments to the nursing facility at the previously established RUG rate for 15 days or until the recipient is discharged, whichever occurs first.
(3) If the recipient does not request a fair hearing within 10 days after the date of the written notice, the recipient must request a fair hearing within 90 days after the date of denied medical necessity, or the recipient loses the right to a fair hearing.

(d) Fair hearings are conducted by the Texas Health and Human Services Commission (HHSC) in accordance with HHSC rules at 1 TAC Chapter 357.

 

§19.2413 Determination of Payment Rate Based on the MDS Assessment Submission

 

(a) Definitions. In this section, the following words and terms have the following meanings unless the context clearly indicates otherwise.

(1) All conditions of eligibility--A recipient meets all conditions of eligibility when the state Medicaid claims administrator approves the recipient for medical necessity and the recipient meets financial eligibility for Medicaid.
(2) On-time MDS assessment--An MDS assessment that is submitted in accordance with the federal MDS submission schedule and is received by the state Medicaid claims administrator within 31 days after the completion date.
(3) Missed MDS assessment--An MDS assessment that is received by the state Medicaid claims administrator outside the time period that the MDS assessment covers.

(b) MDS submission requirement. A nursing facility must:

(1) complete all MDS assessments according to CMS' instructions;
(2) submit a recipient's MDS assessment, including an admission MDS assessment, a quarterly MDS assessment, and a significant change in status assessment, to the state MDS database in compliance with the federal MDS submission schedule;
(3) submit the Long-Term Care Medicaid Information Section to the state Medicaid claims administrator; and
(4) submit the recipient's MDS assessment in compliance with the federal MDS submission schedule even after the recipient has permanent medical necessity as described in §19.2403(e) of this subchapter (relating to Medical Necessity Determination).

(c) Admission MDS assessments.

(1) If a nursing facility discharges a recipient with a status of return not anticipated, and the recipient returns to the facility, the nursing facility must complete an admission MDS assessment for a determination of medical necessity and establishment of a RUG rate, regardless of the amount of time between the recipient's discharge and return.
(2) A nursing facility must complete and submit an admission MDS assessment to receive payment for a recipient's period of stay in the nursing facility, even if the recipient leaves the nursing facility before the MDS assessment is completed and never returns long enough for the MDS assessment to be completed. See subsection (i) of this section for completion of an admission MDS assessment in the event of a recipient's death.
(3) DADS pays a calculated RUG rate for an admission MDS assessment from the date the recipient was admitted to the nursing facility, except as provided in §19.2611 of this chapter (relating to Retroactive Vendor Payments).

(d) Payment of a calculated RUG rate. If a recipient meets all conditions of eligibility, DADS pays a calculated RUG rate for an MDS assessment if it is received by the state Medicaid claims administrator during the time period that the MDS assessment covers.
(e) On-time MDS assessment. If a recipient meets all conditions of eligibility, DADS pays a calculated RUG rate from the completion date of the required MDS assessment, except for an admission MDS assessment as described in subsection (c)(3) of this section.
(f) MDS assessments that are not on time. The state Medicaid claims administrator stops payment for services if the state Medicaid claims administrator does not receive an on-time MDS assessment. Payment for services resumes when the state Medicaid claims administrator receives all MDS assessments that are due as required by the federal MDS submission schedule.
(g) Missed MDS assessments. When the state Medicaid claims administrator receives a missed MDS assessment, DADS pays the nursing facility a default RUG rate for the entire period of the missed MDS assessment if the recipient meets financial eligibility for Medicaid, except as provided in paragraph (2) of this subsection.

(1) If an MDS assessment is missed for the purpose of calculating a RUG rate, the nursing facility must still submit the MDS assessment to comply with §19.801 of this chapter (relating to Resident Assessment).
(2) For a newly contracted nursing facility and a nursing facility that undergoes a change of ownership, DADS pays the calculated RUG rate for any missed MDS assessments that occur while the nursing facility is unable to submit MDS assessments to the state MDS database.

(h) Significant change in status assessment, modification, or significant correction. If a recipient meets all conditions of eligibility, DADS pays the calculated RUG rate from the completion date of a significant change in status assessment, modification, or significant correction.
(i) Incomplete or erroneous MDS assessments. If an applicant meets all conditions of eligibility, DADS pays a default rate for an MDS assessment that is incomplete or has errors.
(j) Prohibition against recourse. A nursing facility must not charge and must not take any other recourse against a recipient, the recipient's family members, the recipient's estate or the recipient's representative for a claim that is reduced because the facility failed to comply with a DADS rule or procedure pertaining to reimbursement.

NFRLMC Subchapter AA, Vendor Payment

 

 

Revision 08-6

 

§19.2601 Vendor Payment (Items and Services Included)

 

(a) A facility provides, under the terms of the contract, for the total medical, nursing, and psychosocial needs of each recipient.
(b) The daily rate is compatible with reasonable charges consistent with efficiency, economy, and quality of total care. The facility must ensure that care meets the health needs and promotes the maximum well-being of recipients. The following items and services are included in the payment rate made to the facility by the Department of Aging and Disability Services (DADS) and, therefore, the facility must provide:

(1) nursing care;
(2) social services;
(3) regular, special, and supplemental diets, including tube feedings;
(4) nonlegend drugs, with the exception of insulin, and alcoholic beverages unless prescribed for medicinal purposes. Alcoholic beverages:

(A) prescribed for medicinal purposes must include the dosage and frequency of the alcohol; and
(B) not prescribed for medicinal purposes are at the expense of the recipient or family;

(5) for a recipient who is not eligible for Medicare Part D benefits, legend drugs that are not covered by the Medicaid Vendor Drug Program;
(6) for a recipient who is eligible for Medicare Part D benefits, legend drugs in a category that is not covered by Medicare Part D and that are not covered by the Medicaid Vendor Drug Program;
(7) regular laundry services, except dry cleaning;
(8) medical accessories, such as canulas, tubes, masks, catheters, ostomy bags and supplies, IV fluids, IV equipment, and equipment that can be used by more than one person, such as wheelchairs, adjustable chairs, crutches, canes, mattresses, hospital-type beds, enteral pumps, trapeze bars, walkers, and oxygen equipment, such as tanks, concentrators, tubing, masks, valves, and regulators.

(A) Facilities are required to maintain, in good repair, equipment necessary to meet the needs of the recipient.
(B) If a recipient desires equipment for exclusive use, its purchase is theresponsibility of the recipient:

(i) Only the recipient can use the equipment, and it must be identified as the personal property of the recipient.
(ii) Upon discharge from the facility, the recipient retains the equipment he purchased. If the recipient dies, the purchased equipment must be transferred to the estate. If it is donated or sold to the facility by the recipient or the estate, the transaction must be documented. (See §19.416 of this title (relating to Personal Property)).

(C) If a recipient owns a piece of equipment that is medically necessary, the facility must maintain and repair the equipment.
(D) When Part B Medicare benefits are accessed to pay for equipment and accessories, the recipient or family may not be charged by the facility or supply company for any portion of these items;

(9) medical supplies, including, but not limited to tongue depressors, swabs, bandaids, cotton balls, and alcohol; and
(10) basic personal hygiene items and services to meet the needs of the residents (See §19.405(h) of this title (relating to Additional Requirements for Trust Funds in Medicaid-Certified Facilities) for a list of such items and services). The specific type or brand of personal hygiene items used by the facility must be disclosed to the recipient; then, if a recipient prefers to use a specific type or brand of a personal hygiene item(s) rather than the item(s) furnished by the facility, he may use his personal funds to purchase the item(s).

(A) Before purchasing or charging for the preferred item(s), the facility must secure written authorization from the recipient or family indicating his desired preference, the date, and signature of the person requesting the preferred item(s). The signature may not be that of an employee of the facility.
(B) If the recipient's personal funds are used to purchase an item(s), the item(s) is for his sole use.
(C) When the facility purchases personal hygiene item(s) with the recipient's personal funds, the facility must ensure that the item(s) is in an individual container or package that is labeled with the recipient's name. The facility is not held responsible for labeling personal hygiene items brought into the facility and not reported to the management.

(c) Facilities are not required to provide any particular brand of non-legend drug, medical accessory, equipment, or supply, but only those items necessary to ensure appropriate recipient care.

(1) Unless the physician orders a specific type or brand, the facility may choose the type or brand.
(2) If the recipient or family prefers a specific type or brand of item rather than the one furnished by the facility, the recipient, responsible party, or family may be billed for the item, or the recipient's personal funds may be used to purchase the item, or both.
(3) Before purchasing or charging for the preferred item, the facility must secure written authorization from the recipient or family indicating his desired preference, the date, and signature of the person requesting the preferred item. The signature may not be that of an employee of the facility.

(d) If a resident has requested and freely chosen to participate in an activity, or to have an item or service provided that is not included, or is different than that provided, in the daily vendor rate, then the resident may be charged for the activity, item, or service.

(1) When documentation is present that supports the above criteria, and that is required by §19.405(d)(5) of this title, the amount may be paid from the resident's trust fund.
(2) When the facility acts as a collection agent for any item, service, or activity not included in the daily rate, the facility must be able to provide documentation that clearly indicates that any charges made to the recipient or his trust fund are pass-through costs only. The facility may not charge any fees, including handling fees, for these types of transactions.

(e) Except as described in paragraphs (1) and (2) of this subsection, DADS makes vendor payments to Nursing Facilities for the day a recipient enters a nursing facility, but not for the day a recipient leaves a facility. The two exceptions are as follows.

(1) If entrance and departure are on the same day, and the recipient does not enter another Title XIX facility on that day, DADS pays for the entire day.
(2) If departure is because of the recipient's death and the deceased recipient is not sent to another Title XIX facility for legal procedures necessary upon the death of the recipient, DADS pays for the entire day.

(f) Vendor payments are made to Medicaid Nursing Facilities that comply with the PASARR requirements.

 

§19.2602 Additional Charges (Items and Services Excluded from Vendor Payment)

 

(a) The Texas Department of Human Services (DHS) does not make vendor payments when a Title XIX recipient is absent from the facility because of:

(1) therapeutic home visits that extend beyond three days; or
(2) hospital inpatient services. However, DHS makes vendor payments for periods when a recipient is a hospital outpatient subject to the following limitations.

(A) DHS makes vendor payments when a Title XIX recipient is absent from the nursing facility past midnight for outpatient hospital services, including services resulting from hospital outpatient observation. In these cases the facility must document in the clinical record that the recipient was not admitted as an inpatient in the hospital.
(B) If the recipient is admitted to the hospital for inpatient services anytime during a hospital outpatient observation period, a patient transaction notice showing discharge must be submitted effective the date the recipient left the nursing facility.

(b) The facility may enter into a written agreement with the recipient or responsible party to reserve a bed, according to the specifications of §19.503 of this title (relating to Notice of Bed-hold Policy and Readmission in Medicaid-Certified Facilities).
(c) The facility may charge for transportation beyond normal transportation as defined in §19.2320 of this title (relating to Medical Transportation).
(d) The billing of flu shots to recipients by the nursing facility is not allowed.
(e) A facility must bill for charges not covered by Medicaid at least once a month. Each bill must itemize all extra charges by general category.

 

§19.2603 Therapeutic Home Visits Away from the Facility

 

(a) The facility must have written policies and procedures governing recipient therapeutic home visits away from the facility for the purpose of visiting with relatives and friends.
(b) The following conditions must be met for the facility to receive vendor payment:

(1) the recipient's plan of care provides for physician-authorized therapeutic visits.
(2) the facility must provide equipment and supplies necessary to meet the needs of the recipient, including, but not limited to, medication and oxygen and supplies for its administration.
(3) if a visit exceeds three days, the facility submits a discharge form effective the first day. Days are defined as 24-hour periods extending from midnight to midnight. In determining days of absence from a facility, the first day is the first 24-hour period beginning at midnight after the recipient's departure. Situations that require a discharge form effective the first day include:

(A) alternate care living arrangements, including at home;
(B) transfer or discharge to other medical care or living arrangements covered under Title XIX; and
(C) therapeutic visits that are over three days (one night must be spent in the facility between therapeutic home visits if vendor payment is to be made).

(4) the facility must maintain a record of each therapeutic visit away from the facility. Verification that therapeutic visits took place and were documented is a part of the audit procedures during the DHS audit of the facility. DHS does not pay for therapeutic visits which were not documented.

(c) Before a resident goes on therapeutic leave, the facility must provide written notification to the recipient, and, if known, a responsible party, or family or legal representative, regarding the three-day time limit for a home visit, as specified in subsection (b)(3) of this section.

 

§19.2604 Vendor Payment Information

 

(a) Vendor payment will be made based upon the nursing facility administrator's or the administrative designee's approval of the Nursing Care Statement.
(b) Vendor payment will be made at periodic intervals but not less than once per month for services rendered during the previous billing period.
(c) The vendor payment for an entire month will be in accordance with the number of calendar days in the month.
(d) Vendor payment for time periods of less than an entire calendar month shall be made in accordance with the number of days care was provided beginning with the effective date on the Notification of Recipient Medical Necessity Determination and/or Vendor Payment Plan.
(e) Days are defined as 24-hour periods extending from midnight to midnight. Payment is computed in terms of whole days, even though the recipient may have been in a nursing facility only a fractional part of the day of entrance. (See §19.2601(e) of this title (relating to Vendor Payment (Items and Services Included)).
(f) Vendor payment will be made in terms of daily rates.
(g) The recipient must have the status of a certified recipient, must have been determined to be in need of nursing facility care, and must be physically located in a Medicaid-certified bed of a facility at the time the service is rendered in order for the facility to receive payment for the service.
(h) The Texas Department of Human Services (DHS) will owe the facility no interest on payments not made within the time limits provided in these rules, the provider contract, or Chapter 2251 of the Government Code when the delay is the result of a bona fide dispute between DHS and the facility over compliance with the terms and conditions of the Medicaid program or is the result of other rules, laws or contract terms authorizing the withholding or nonpayment.

 

§19.2605 Effective Date of Vendor Coverage

 

If an applicant is determined to be eligible and in need of nursing facility care, the effective date of vendor coverage is either the date the individual entered the facility, the date of application, or the date the need for nursing facility care was established, whichever date is the latest.

(1) Once the effective date is established, the Texas Department of Human Services (DHS), through the contract agreement with the facility, sets the acceptable rates for services.
(2) If the facility charges the applicant an amount over the recognized monthly rate set by DHS, the difference must be refunded to the recipient or the responsible party.
(3) Private pay individuals living in Medicaid certified nursing facilities, or distinct parts, who do not receive SSI cash benefits may be eligible for "Three months prior" vendor payments. (See §19.2408 of this title (relating to Retroactive Medical Necessity Determinations)).

 

§19.2606 Supplementation of Vendor Payments

 

(a) Facilities must abide by Public Law 95-142 related to Medicare/Medicaid antifraud and abuse amendments.
(b) Participation will be limited to providers of services who accept, as payment in full, the amounts paid in accordance with the fee structure approved by the Texas Department of Human Services (DHS).
(c) Providers who have a contract with DHS and who solicit contributions, donations, or gifts from Medicaid recipients or family members will be in noncompliance with federal requirements.
(d) The facility must inform Medicaid recipients and their families that their right to nursing facility services is not contingent upon contributions. The facility must give copies of this notice to the recipient, and either the responsible party or family representative.
(e) If a recipient, family member, guardian, or other interested party does make a free-will contribution, the nursing facility administrator executes a statement for signature by both the contributor and the administrator. It will state that the services provided to any Medicaid recipient in the nursing facility are not predicated upon contributions and that the gifts are free-will contributions.
(f) When a provider accepts federal and/or state funds for items or services delivered which are not reimbursed within the per diem, the facility must document:

(1) that the type of item or service is ordered by the physician,
(2) that the item or service has not been billed to more than one payor source, and
(3) that the recipient actually received the item or service.

§19.2607 Penalties for Supplementation

 

A felony conviction with a fine of not more than $25,000 or imprisonment for not more than five years or both can be imposed on anyone in the facility who knowingly and willfully:

(1) accepts, from the recipient, money or other considerations in excess of rates established by the state for services provided under a state plan approved under Title XIX;
(2) charges, solicits, accepts, or receives any gifts, money, donation, or other consideration in addition to amounts required to be paid under a state plan approved under Title XIX (other than charitable donations from an organization or a person unrelated to the recipient) as a precondition for admitting or keeping a recipient in the nursing facility, or
(3) accepts reimbursement from more than one source (including per diem reimbursement) for the same item or service.

 

§19.2608 Limitations on Provider Charges

 

A provider of Medicaid (Title XIX) services may neither charge nor take other recourse against Medicaid applicants or recipients, their family members, or their representatives for any claim denied or reduced by the Texas Department of Human Services (DHS) because of the provider's failure to comply with any DHS rule, regulation, or procedure.

 

§19.2609 Payment of Claims

 

To receive payment for a service, a nursing facility must submit a complete and accurate claim to the state Medicaid claims administrator so that it is received within 12 months after the date of service. In this section, the date of service is the last day of the month in which the service was provided.

(1) All payments are subject to availability of funds as provided by law.
(2) A nursing facility must submit claims and adjustments rejected or denied to the state Medicaid claims administrator within 12 months after the date of service. DADS may pay for claims and adjustments rejected or denied during the 12-month period through no fault of the nursing facility.
(3) If a recipient's Medicaid eligibility is established after services are provided to the recipient, the nursing facility must submit the claim for service to the state Medicaid claims administrator within 12 months after the date eligibility is established.
(4) A nursing facility may resubmit a claim after the 12-month period in the case of state-generated retroactive payments.
(5) The provisions of §19.2413 of this chapter (relating to Determination of Payment Rate Based on the MDS Assessment) apply to this section.
(6) DADS recoups any inadvertent payments made to a facility.

 

§19.2610 Medicare Part A Skilled Nursing Facility Deductible and Coinsurance Payment

 

When the Texas Department of Human Services (DHS) receives valid Medicare claims, DHS pays a portion of the Medicare Part A skilled nursing facility (SNF) deductible and coinsurance. When Medicare changes its daily interim payment, DHS adjusts the Medicaid payment on the Part A SNF coinsurance amount if necessary. The adjustment is effective on the first day of the month following the Medicare change.

 

§19.2611 Retroactive Vendor Payment

 

(a) In this section, retroactive vendor payment is payment DADS makes retroactively to a nursing facility for services the nursing facility provided to an individual who was eligible for, but had not yet applied for, Medicaid. A nursing facility is eligible for up to three months retroactive vendor payment for services it provided, if:

(1) the individual resided in a Medicaid-certified nursing facility, or a distinct part, during the time services were provided;
(2) the individual did not receive Supplemental Security Income cash benefits;
(3) the individual met Medicaid financial eligibility requirements;
(4) the state Medicaid claims administrator has a current MDS assessment for the individual that the facility submitted in compliance with the federal MDS submission requirements; and
(5) the nursing facility met physician certification and plan of care requirements during the time services were provided.

(b) After receipt of an application for Medicaid, Texas Health and Human Services Commission (HHSC) Medicaid eligibility staff notify the applicant whether the applicant meets financial eligibility. The state Medicaid claims administrator uses the applicant's current MDS assessment to make the MN determination and determine the effective date of the MN determination. For the purpose of establishing three months prior eligibility, the effective date of the MN determination for a new recipient is the first day of the month in which the recipient qualified for MN.
(c) If the requirements in subsection (a) of this section are met, DADS makes a retroactive vendor payment based on the recipient's calculated RUG rate for the period covered by the retroactive vendor payment.
(d) DADS or HHSC may verify that the recipient's record includes the required physician's certification, recertification, and plans of care, and that the plans were reviewed as required during the applicable periods.
(e) If a recipient paid the nursing facility for services for which the facility later receives retroactive vendor payment, the facility must reimburse the recipient the full amount the recipient paid, beginning with the effective date of Medicaid eligibility, minus any applied income or co-payment as determined by HHSC Medicaid eligibility staff.

 

§19.2612 Quality Incentive Payment

 

For services delivered after September 1, 1999, the Texas Department of Human Services (DHS) may make Quality Incentive payments to facilities according to reimbursement rules developed by the Health and Human Services Commission. DHS will determine the qualifying facilities.

 

(1) The Texas Board of Human Services will review the adopted plan at least biennially.
(2) Incentive payments will be based on:
(A) specific resident care domains selected from the Center for Health Systems Research and Analysis (CHSRA) Quality Indicators; and
(B) regulatory compliance.
(3) The incentive payment is in addition to the daily vendor rate paid to the provider.

 

§19.2613 Augmentative Communication Device Systems

 

(a) A specialized augmentative communication device system (ACD), also referred to as a
speech-generating device system, is reimbursable if purchased by a facility for a Medicaid recipient and all criteria defined in this section are met. A physician and a licensed speech therapist must determine a recipient needs the ACD, and the facility must obtain DADS' approval of the request for reimbursement.
(b) A facility must request and receive prior authorization from DADS before purchasing the ACD. The request for prior authorization must include:

(1) an evaluation and recommendation from a licensed speech therapist to purchase the ACD;
(2) an attestation from the recipient's attending physician that the ACD is medically necessary for the recipient to maximize his functional communication within the facility's environment; and
(3) a minimum of two bids for the ACD or a request for an exception to the two-bid minimum if the recommended ACD is only available through one vendor.

(c) The evaluation from the licensed speech therapist must include:

(1) a description of how the ACD will specifically meet the need of the recipient;
(2) detailed instructions for training on the use of the ACD for the recipient, facility staff and family (if applicable);
(3) a diagnosis relevant to the need for the ACD; and
(4) the specific ACD being recommended

(d) If an ACD costs more than $10,000, DADS will facilitate an independent speech language review, at DADS' expense, to determine necessity for the ACD.
(e) After receiving prior authorization from DADS, the facility must purchase the ACD.
(f) To obtain reimbursement from DADS, a facility must submit to DADS the receipt for payment for the ACD and a copy of the approved prior authorization.

(1) A facility must fully explore and use other funding sources to pay for an ACD before submitting the request for reimbursement from DADS. If another funding source will pay for part of the ACD expense, the facility may request reimbursement for the balance if the requirements in subsections (b) and (c) of this section are met. If another funding source is available, DADS reimburses only up to the remaining balance after other sources are fully utilized.
(2) A facility must submit the request for reimbursement within one year after the date of purchase.
(3) DADS reimburses the amount of the authorized bid or the remaining balance after all other sources are fully utilized.

(g) If DADS denies a request for reimbursement because the facility failed to obtain prior authorization or submit the necessary documentation for the ACD, the facility is responsible for the cost of the ACD.
(h) If DADS denies a prior authorization request, the recipient may request a Medicaid fair hearing in accordance with 1 TAC Chapter 357, Subchapter A.
(i) Only the recipient can use the ACD, and it must be identified as the personal property of the recipient.

(1) Upon discharge from the facility, the recipient retains the ACD. If the recipient dies, the ACD must be transferred to the recipient's estate. If it is donated or sold to the facility by the recipient or the recipient's estate, the transaction must be documented. (See §19.416 of this title (relating to Personal Property))
(2) The facility is responsible for the repair and maintenance of the ACD while the recipient resides in the facility.

 

 

§19.2614 Customized Power Wheelchairs

 

(a) Customized power wheelchairs (CPWCs) are a service in the nursing facility Medicaid program for Medicaid-eligible nursing facility residents when medically necessary and prior authorized by the Health and Human Services Commission (HHSC) or its designee.
(b) A CPWC is a wheelchair that consists of a power mobility base and customized seating system.

(1) The power mobility base may include programmable electronics and may utilize alternate input devices.
(2) The wheelchair must be medically necessary, adapted, and fabricated to meet the individualized needs of the resident, and intended for the exclusive and ongoing use of the resident.
(3) Components of the customized seating system must be in part or entirely usable only by the resident for whom the power wheelchair is adapted and fabricated.

(c) When requested by a resident or the resident’s legal representative, the nursing facility must procure an evaluation for a CPWC from a licensed physical or occupational therapist. If the evaluation recommends a CPWC, the nursing facility must submit all required forms to HHSC or its designee for prior authorization.
(d) After receiving prior authorization from HHSC or its designee, the facility must purchase the CPWC.
(e) To be eligible for reimbursement, the nursing facility must request and receive prior authorization from HHSC or its designee before purchasing a CPWC. The prior authorization request must include:

(1) a completed CPWC order form;
(2) an occupational or physical therapy evaluation of the resident;
(3) a statement signed by the resident's attending physician that the CPWC is medically necessary; and
(4) a detailed breakdown of proposed CPWC specifications from the customized power wheelchair supplier.

(f) To be eligible for reimbursement for a CPWC, the nursing facility must obtain an evaluation of the resident by an occupational or physical therapist licensed in the state of Texas prior to purchase of the CPWC. The occupational or physical therapy evaluation must include:

(1) a diagnosis relevant to the need for a CPWC;
(2) the specific CPWC and adaptations being recommended;
(3) a description of how the CPWC will meet the specific needs of the resident;
(4) a description of specific training needs for use of this device including training needs of the resident, nursing facility staff, and family (when applicable); and
(5) written documentation from the therapist indicating that the resident is physically and cognitively capable of independently managing a power wheelchair.

(g) Payment for physical or occupational therapy evaluations may be obtained for eligible residents in the same manner as payment for physical or occupational therapy evaluations is obtained in the Specialized and Rehabilitative Services programs, as described in §19.1306 of this chapter (relating to Payment for Specialized and Rehabilitative Services).
(h) Following a review of the prior authorization request by HHSC or its designee, the nursing facility and resident will receive a written approval or denial of the request. If the request is approved, the nursing facility will promptly make arrangements to purchase the CPWC. If the request is denied, HHSC or its designee will send a notice of denial to the nursing facility resident informing the resident of the right to request a Medicaid fair hearing in accordance with 1 TAC Chapter 357, Subchapter A.
(i) A facility must submit the request for reimbursement to DADS within one year after the date of purchase of the CPWC. If DADS denies a request for reimbursement because the facility failed to obtain prior authorization or submit the necessary documentation for the CPWC to HHSC or its designee, the facility is responsible for the cost of the CPWC and may not charge the cost to the resident or family.
(j) A facility must fully explore and use other funding sources to pay for a CPWC before submitting the request for reimbursement to DADS. If another funding source will pay for part of the CPWC expense, the facility may request reimbursement for the balance if the requirements in subsections (d)-(f) of this section are met. If another funding source is available, DADS reimburses only up to the remaining balance after other sources are fully utilized.
(k) Only the resident can use the CPWC, and it must be identified as the personal property of the resident.
(l) The resident’s comprehensive care plan must document that the CPWC is medically necessary.
(m) Upon discharge from the facility, the resident retains the CPWC. If the resident dies, the CPWC becomes property of the resident’s estate. As part of the estate, the CPWC is subject to all applicable Medicaid Estate Recovery Program (MERP) requirements, as detailed in 1 TAC Chapter 373. If the CPWC is donated or sold to the facility by the resident or executor of the resident's estate, the transaction must be documented in accordance with §19.416 of this chapter (relating to Personal Property).
(n) As required by §19.2601(b)(8)(C) of this chapter (relating to Vendor Payment (Items and Services Included)), the nursing facility is required to maintain and repair all medically necessary equipment for its residents, including CPWCs obtained under this section.
(o) Requests for replacement of a CPWC must be submitted in the same manner as the original prior authorization of the CPWC outlined in this section. A replacement CPWC may be requested no earlier than five years after the original date of purchase, unless the request includes an order from the prescribing physician familiar with the resident and an assessment by a physician or a licensed occupational or physical therapist with documentation supporting why the current CPWC no longer meets the resident's needs. DADS does not authorize replacement in situations where the CPWC has been abused or neglected.

 

§19.2615 Resident Transaction Notices

 

A nursing facility must electronically submit to the state Medicaid claims administrator a resident transaction notice within 72 hours after a recipient's admission or discharge from the Medicaid nursing facility vendor payment system. The nursing facility administrator must sign the resident transaction notice.

NFRLMC, Subchapter BB, Nursing Facility Responsibilites Related to Preadmission Screening and Resident Review (PASRR)

Revision 18-3

 

 

Division 1 General Provisions

 

§19.2701 Purpose

The purpose of this subchapter is to:

(1) describe the requirements of a nursing facility related to preadmission screening and resident review (PASRR), which is a federal requirement in Code of Federal Regulations, Title 42, Part 483, Subpart C to ensure that:

(A) an individual seeking admission to a nursing facility or a resident of a nursing facility receives a PASRR Level I screening (PL1) to identify whether the individual or resident is suspected of having mental illness (MI), an intellectual disability (ID), or a developmental disability (DD); and
(B) an individual or resident suspected of having MI, ID, or DD receives a PASRR Level II evaluation (PE) to confirm MI, ID, or DD and, if confirmed, to evaluate whether the individual or resident needs nursing facility care and specialized services;

(2) describe the requirements of a nursing facility related to a designated resident who receives services planning and transition planning; and

(3) describe the requirements of a nursing facility related to nursing facility specialized services.

 

§19.2703 Definitions

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

(1) Alternate placement assistance — Assistance provided to a resident to locate and secure services chosen by the resident or LAR that meet the resident's basic needs in a setting other than a nursing facility. Assistance includes the identification of specific services and supports available through alternate resources for which the resident may be eligible and an explanation of the possible benefits and consequences of selecting a setting other than a nursing facility.
(2) Coma — A state of unconsciousness characterized by the inability to respond to sensory stimuli as documented by a physician.
(3) Comprehensive care plan — A plan, defined in §19.101 of this chapter (relating to Definitions), that includes, for a designated resident, nursing facility specialized services and nursing facility PASRR support activities.
(4) Convalescent care — A type of care provided after an individual's release from an acute care hospital that is part of a medically prescribed period of recovery.
(5) CMWC —Customized manual wheelchair A wheelchair that consists of a manual mobility base and customized seating system and is adapted and fabricated to meet the individualized needs of a designated resident.
(6) DADS — Department of Aging and Disability Services or HHSC, as its successor agency. For purposes of the PASRR process, HHSC is the state authority for intellectual and developmental disabilities.
(7) DD — Developmental disability. A disability that meets the criteria described in the definition of "persons with related conditions" in Code of Federal Regulations (CFR) Title 42, §435.1010.
(8) Delirium — A serious disturbance in an individual's mental abilities that results in a decreased awareness of the individual's environment and confused thinking.
(9) Designated resident — A Medicaid recipient with ID or DD who is 21 years of age or older and who is a resident.
(10) DME— Durable Medical Equipment  The following items, including any accessories and adaptations needed to operate or access the item:

(A) a gait trainer;
(B) a standing board;
(C) a special needs car seat or travel restraint;
(D) a specialized or treated pressure-reducing support surface mattress;
(E) a positioning wedge;
(F) a prosthetic devise; and
(G) an orthotic device.

(11) DSHS — Department of State Health Services. For purposes of the PASRR process, DSHS is the state mental health authority.
(12) Emergency protective services — Services that are furnished by the Department of Family and Protective Services to an elderly or disabled individual who has been determined to be in a state of abuse, neglect, or exploitation.
(13) Exempted hospital discharge — A category of nursing facility admission that occurs when a physician has certified that an individual who is being discharged from a hospital is likely to require less than 30 days of nursing facility services for the condition for which the individual was hospitalized.
(14) Expedited admission — A category of nursing facility admission that occurs when an individual meets the criteria for one of the following categories: convalescent care, terminal illness, severe physical illness, delirium, emergency protective services, respite, or coma.
(15) HHSC Health and Human Services Commission or its designee.
(16) ID — Intellectual disability. Mental retardation, as described in CFR Title 42, §483.102(b)(3)(i).
(17) IDT — Interdisciplinary team. A team consisting of:

(A) a resident with MI, ID, or DD;
(B) the resident's LAR, if any;
(C) a registered nurse from the nursing facility with responsibility for the resident;
(D) a representative of a LIDDA or LMHA, or if the resident has MI and DD or MI and ID, a representative of the LIDDA and LMHA; and
(E) other persons, as follows:

(i) a concerned person whose inclusion is requested by the resident or LAR;
(ii) a person specified by the resident or LAR, nursing facility, or LIDDA or LMHA, as applicable, who is professionally qualified or certified or licensed with special training and experience in the diagnosis, management, needs and treatment of people with MI, ID, or DD; and
(iii) a representative of the appropriate school district if the resident is school age and inclusion of the district representative is requested by the resident or LAR.

(18) Individual — A person seeking admission to a nursing facility.
(19) ISP — Individual service plan. A service plan developed by the service planning team for a designated resident in accordance with §17.502(2) of this title (relating to Service Planning Team (SPT) Responsibilities for a Designated Resident).
(20) LAR — Legally authorized representative. A person authorized by law to act on behalf of an individual or resident with regard to a matter described by this subchapter, and who may be the parent of a minor child, the legal guardian, or the surrogate decision maker.
(21) LIDDA — Local intellectual and developmental disabilities authority. An entity designated by the executive commissioner of HHSC, in accordance with Texas Health and Safety Code §533A.035.
(22) LIDDA specialized services — Support services, other than nursing facility services, that are identified through the PE or resident review and may be provided to a resident who has ID or DD. LIDDA specialized services are:

(A) service coordination, which includes alternate placement assistance;
(B) employment assistance;
(C) supported employment;
(D) day habilitation;
(E) independent living skills training; and
(F) behavioral support.

(23) LMHA — Local mental health authority. An entity designated by the executive commissioner of HHSC, in accordance with Texas Health and Safety Code §533.035. For the purposes of this subchapter, LMHA includes an entity designated by the DSHS as the entity to perform PASRR functions.
(24) LMHA specialized services — Support services, other than nursing facility services, that are identified through the PE or resident review and may be provided to a resident who has MI. LMHA specialized services are defined in Title 25, Texas Administrative Code (TAC), Chapter 412, Subchapter I (relating to MH Case Management), including alternate placement, and 25 TAC Chapter 416, Subchapter A (relating to Mental Health Rehabilitative Services).
(25) LTC Online Portal — Long Term Care Online Portal. A web-based application used by Medicaid providers to submit forms, screenings, evaluations, and the long term services and supports Medicaid identification section of the MDS assessment.
(26) MDS assessment — Minimum data set assessment. A standardized collection of demographic and clinical information that describes a resident's overall condition, which a nursing facility in Texas is required to submit for a resident of the facility.
(27) MI — Mental illness. Serious mental illness, as defined in 42 CFR §483.102(b)(1).
(28) Nursing facility — A Medicaid-certified facility that is licensed in accordance with Texas Health and Safety Code, Chapter 242.
(29) Nursing facility PASRR support activities — Actions a nursing facility takes in coordination with a LIDDA or LMHA to facilitate the successful provision of LIDDA specialized services or LMHA specialized services, including:

(A) arranging transportation for a designated resident to participate in a LIDDA specialized service or a LMHA specialized service outside the nursing facility;
(B) sending a resident to a scheduled LIDDA specialized service or a LMHA specialized service with food and medications required by the resident; and
(C) including in the comprehensive care plan an agreement to avoid, when possible, scheduling nursing facility services at times that conflict with LIDDA specialized services or LMHA specialized services.

(30) Nursing facility specialized services — Support services, other than nursing facility services, that are identified through the PE and may be provided to a designated resident. Nursing facility specialized services are:

(A) therapy services;
(B) CMWC; and
(C) DME.

(31) PASRR — Preadmission screening and resident review.
(32) PASRR determination — A decision made by DADS, DSHS, or their designee regarding an individual's need for nursing facility specialized services, LIDDA specialized services, and LMHA specialized services, based on information in the PE; and, in accordance with Subchapter Y of this chapter (relating to Medical Necessity Determinations), whether the individual requires the level of care provided in a nursing facility. A report documenting the determination is sent to the individual and LAR.
(33) PE — PASRR Level II evaluation. A face-to-face evaluation of an individual suspected of having MI, ID, or DD performed by a LIDDA or an LMHA to determine if the individual has MI, ID, or DD, and if so to:

(A) assess the individual's need for care in a nursing facility;
(B) assess the individual's need for nursing facility specialized services, LIDDA specialized services and LMHA specialized services; and
(C) identify alternate placement options.

(34) PL1 — PASRR Level I screening. The process of screening an individual to identify whether the individual is suspected of having MI, ID, or DD.
(35) Pre-admission — A category of nursing facility admission from a community setting that is not an expedited admission or an exempted hospital discharge.
(36) Referring entity — The entity that refers an individual to a nursing facility, such as a hospital, attending physician, LAR or other personal representative selected by the individual, a family member of the individual, or a representative from an emergency placement source, such as law enforcement.
(37) Resident — An individual who resides in a nursing facility and receives services provided by professional nursing personnel of the facility.
(38) Resident review — A face-to-face evaluation of a resident performed by a LIDDA or LMHA:

(A) for a resident with MI, ID, or DD who experienced a significant change in status, to:

(i) assess the resident's need for continued care in a nursing facility;
(ii) assess the resident's need for nursing facility specialized services, LIDDA specialized services and LMHA specialized services; and
(iii) identify alternate placement options; and

(B) for a resident suspected of having MI, ID, or DD, to determine whether the resident has MI, ID, or DD and, if so:

(i) assess the resident's need for continued care in a nursing facility;
(ii) assess the resident's need for nursing facility specialized services, LIDDA specialized services, and LMHA specialized services; and
(iii) identify alternate placement options.

(39) Respite — Services provided on a short-term basis to an individual because of the absence of or the need for relief by the individual's unpaid caregiver for a period not to exceed 14 days.
(40) Service coordination — As defined in §2.553 of this title (relating to Definitions), assistance in accessing medical, social, educational, and other appropriate services and supports that will help an individual achieve a quality of life and community participation acceptable to the person and LAR on the individual's behalf.
(41) Service coordinator — An employee of a LIDDA who provides service coordination.
(42) Severe physical illness — An illness resulting in ventilator dependence or diagnosis such as chronic obstructive pulmonary disease, Parkinson's disease, Huntington's disease, amyotrophic lateral sclerosis, or congestive heart failure, that results in a level of impairment so severe that the individual could not be expected to benefit from nursing facility specialized services, LIDDA specialized services or LMHA specialized services.
(43) SPT — Service planning team. A team that develops, reviews, and revises the ISP for a designated resident.

(A) The SPT always includes:

(i) the designated resident;
(ii) the designated resident's LAR, if any;
(iii) the service coordinator;
(iv) nursing facility staff familiar with the designated resident's needs;
(v) persons providing nursing facility specialized services and LIDDA specialized services for the designated resident;
(vi) a representative from a community provider, if one has been selected; and
(vii) a representative from the LMHA, if the designated resident has MI.

(B) Other participants on the SPT may include:

(i) a concerned person whose inclusion is requested by the designated resident or the LAR; and
(ii) at the discretion of the LIDDA, a person who is directly involved in the delivery of services to people with ID or DD.

(44) Surrogate decision maker — An actively involved family member of a resident who has been identified by an IDT in accordance with Texas Health and Safety Code §313.004 and who is available and willing to consent on behalf of the resident.
(45) Terminal illness — A medical prognosis that an individual's life expectancy is six months or less if the illness runs its normal course, which is documented by a physician's certification in the individual's medical record maintained by a nursing facility.
(46) Therapy services — Assessment and treatment to help a designated resident learn, keep, or improve skills and functioning of daily living affected by a disabling condition. Therapy services are referred to as habilitative therapy services. Therapy services are limited to:

(A) physical therapy;
(B) occupational therapy; and
(C) speech therapy.

(47) Transition plan — A plan developed by the SPT that describes the activities, timetable, responsibilities, services, and supports involved in assisting a designated resident to transition from the nursing facility to the community.

 

Division 2 Nursing Facility Responsibilities

 

§19.2704 Nursing Facility Responsibilities Related to PASRR

(a) If an individual seeks admission to a nursing facility, the nursing facility:

(1) must coordinate with the referring entity to ensure the referring entity conducts a PL1; and
(2) may provide assistance in completing the PL1, if the referring entity is a family member, LAR, other personal representative selected by the individual, or a representative from an emergency placement source and requests assistance in completing the PL1.

(b) A nursing facility must not admit an individual who has not had a PL1 conducted before the individual is admitted to the facility.
(c) If an individual's PL1 indicates the individual is not suspected of having MI, ID, or DD, a nursing facility must enter the PL1 from the referring entity into the LTC Online Portal. The nursing facility may admit the individual into the facility through the routine admission process.
(d) For an individual whose PL1 indicates the individual is suspected of having MI, ID, or DD, a nursing facility:

(1) must enter the PL1 into the LTC Online Portal if the individual's admission category is:

(A) expedited admission; or
(B) exempted hospital discharge; and

(2) must not enter the PL1 into the LTC Online Portal if the individual's admission category is pre-admission.

(e) Except as provided by subsection (f) of this section, a nursing facility must not admit an individual whose PL1 indicates a suspicion of MI, ID, or DD without a complete PE and PASRR determination.
(f) A nursing facility may admit an individual whose PL1 indicates a suspicion of MI, ID, or DD without a complete PE and PASRR determination only if the individual:

(1) is admitted as an expedited admission;
(2) is admitted as an exempted hospital discharge; or
(3) has not had an interruption in continuous nursing facility residence other than for acute care lasting fewer than 30 days and is returning to the same nursing facility.

(g) A nursing facility must check the LTC Online Portal daily for messages related to admissions and directives related to the PASRR process.
(h) Within seven calendar days after the LIDDA or LMHA has entered a PE or resident review into the LTC Online Portal for an individual or resident who has MI, ID, or DD, a nursing facility must:

(1) review the recommended list of nursing facility specialized services, LIDDA specialized services, and LMHA specialized services; and
(2) certify in the LTC Online Portal whether the individual's or resident's needs can be met in the nursing facility.

(i) After an individual or resident who is determined to have MI, ID, or DD from a PE or resident review has been admitted to a nursing facility, the facility must:

(1) contact the LIDDA or LMHA within two calendar days after the individual's admission or, for a resident, within two calendar days after the LTC Online Portal generated an automated notification to the LIDDA or LMHA, to schedule an IDT meeting to discuss nursing facility specialized services, LIDDA specialized services, and LMHA specialized services;
(2) convene the IDT meeting within 14 calendar days after admission or, for a resident review, within 14 calendar days after the LTC Online Portal generated an automated notification to the LIDDA or LMHA;
(3) participate in the IDT meeting to:

(A) identify which of the nursing facility specialized services, LIDDA specialized services, and LMHA specialized services recommended for the resident that the resident, or LAR on the resident's behalf, wants to receive; and
(B) determine whether the resident is best served in a facility or community setting.

(4) provide staff from the LIDDA and LMHA access to the resident and the resident's clinical facility records upon request from the LIDDA or LMHA;
(5) enter into the LTC Online Portal within 3 business days after the IDT meeting for a resident:

(A) the date of the IDT meeting;
(B) the name of the persons who participated in the IDT meeting;
(C) the nursing facility specialized services, LIDDA specialized services, and LMHA specialized services that were agreed to in the IDT meeting; and
(D) the determination of whether the resident is best served in a facility or community setting;

(6) include in the comprehensive care plan:

(A) the nursing facility specialized services agreed to by the resident or LAR; and
(B) the nursing facility PASRR support activities;

(7) submit a complete and accurate request for nursing facility specialized services in the LTC Online Portal within 20 business days after the date of the IDT meeting;
(8) start providing a therapy service within 3 business days after receiving approval from HHSC in the LTC Online Portal;
(9) order DME or CMWC in accordance with §19.2754(e) of this subchapter;
(10) provide on-going therapy services as approved by HHSC; and
(11) for a designated resident, annually document in the LTC Online Portal all nursing facility specialized services, LIDDA specialized services, and LMHA specialized services being provided to the designated resident.

 

§19.2705 Nursing Facility Responsibilities Related to the Fair Hearing Process

An individual or the individual's LAR or responsible party who is not in agreement with a PASRR determination that the individual does or does not require a nursing facility level of care may request a fair hearing to appeal the determination in accordance with 1 TAC Chapter 357, Subchapter A (relating to Uniform Fair Hearing Rules).

(1) If the hearing officer finds that the individual requires a nursing facility level of care, a nursing facility may admit the individual immediately. The individual must meet other eligibility requirements for the facility to receive payment for services provided to the individual.
(2) If the hearing officer finds that the individual does not require a nursing facility level of care, the nursing facility must not admit the individual.

 

§19.2706 Nursing Facility Responsibilities Related to a Designated Resident

(a) A nursing facility employee, nursing facility contractor, or nursing facility specialized services provider must report to the LIDDA the identity of any designated resident who expresses an interest in transitioning to the community.
(b) For a designated resident, a nursing facility must designate staff and necessary contractors to be members of the resident's SPT.
(c) A nursing facility must ensure its staff and contractors who are members of a designated resident's SPT:

(1) attend and participate in the designated resident's SPT meetings as scheduled and convened by the service coordinator;
(2) contribute to the development of the designated resident's ISP; and
(3) assist the SPT by:

(A) monitoring all nursing facility specialized services, LIDDA specialized services and LMHA specialized services, if applicable, provided to the designated resident to ensure the designated resident's needs are being met;
(B) making timely referrals, service changes, and amendments to the ISP as needed;
(C) ensuring that the designated resident's ISP, including nursing facility specialized services, nursing facility PASRR support activities, and LIDDA specialized services, is coordinated with the nursing facility's comprehensive care plan;
(D) if the designated resident has expressed interest in community living;

(i)developing a transition plan for the designated resident to live in the community; and
(ii)identifying the action the SPT will take to address concerns and remove barriers to the designated resident living in the community; and

(E) reviewing and discussing the information included in the ISP and transition plan with key nursing facility staff who work with the resident.

(d) A nursing facility must allow a service coordinator access to:

(1) a designated resident on a monthly basis, or more frequently if needed; and
(2) the designated resident's clinical facility records.

 

§19.2707 Transition Activities Related to Designated Residents

(a) A nursing facility must participate in implementing the transition plan developed by an SPT for a designated resident.
(b) A nursing facility must document in the comprehensive care plan for a designated resident any nursing facility responsibilities to support the implementation of the resident's transition plan.

 

§19.2708 Educational and Informational Activities for Residents

A nursing facility must:

(1) allow access to residents by the State Ombudsman, a certified ombudsman, an ombudsman intern, and representatives of the protection and advocacy system in the state for individuals with mental illness or individuals with intellectual or developmental disabilities to educate and inform them of their rights and options related to PASRR;
(2) allow access to designated residents to support educational activities about community living options arranged by the LIDDA; and
(3) provide a designated resident with adequate notice and assistance to be prepared for and participate in scheduled community visits.

 

§19.2709 Incident and Complaint Reporting

In addition to reporting incidents and complaints, including abuse and neglect, to DADS as required by §19.602 of this chapter (relating to Incidents of Abuse and Neglect Reportable to the (DADS) and Law Enforcement Agencies by Facilities) and §19.2006 of this chapter (relating to Reporting Incidents and Complaints), a nursing facility must report the information by making a telephone report immediately after learning of the incident or complaint:

(1) to the service coordinator, if it involves a designated resident; and
(2) to the LMHA representative, if it involves a designated resident with MI receiving LMHA specialized services.

 

Division 3 Nursing Facility Specialized Services for Designated Residents

 

§19.2750 Nursing Facility Specialized Services for Designated Residents

(a) A nursing facility must request authorization from HHSC to provide a nursing facility specialized service to a designated resident if the service is agreed to by the designated resident’s IDT in accordance with §19.2704 of this subchapter (relating to Nursing Facility Responsibilities Related to PASRR) or the designated resident’s SPT in accordance with §17.502(2) of this title (relating to Service Planning Team (SPT) Responsibilities for a Designated Resident.
(b) Before providing a nursing facility specialized service, a nursing facility must request and receive authorization from HHSC through the LTC Online Portal to provide the service.

 

§19.2751 Requesting Authorization to Provide Therapy Services

(a) Before requesting authorization to provide a therapy service to a designated resident, a nursing facility must ensure that:

(1) the therapy service is required by the designated resident’s comprehensive care plan;
(2) the designated resident has a diagnosis relevant to the need for the therapy service;
(3) the therapy service is ordered by the designated resident’s attending physician; and
(4) a therapy provider who meets the qualifications in §19.2752 of this division (relating to Qualifications of a Provider of Therapy Services) completes an assessment within 30 days before the nursing facility request for authorization to provide the therapy service.

(b) After a nursing facility submits a request for authorization to provide a therapy service to a designated resident:

(1) the nursing facility receives a written approval or denial of its request through the LTC Online Portal; and
(2) HHSC notifies the designated resident or the designated resident’s LAR that the request has been approved or denied.

(c) If HHSC denies a request for authorization to provide therapy services to a designated resident, the designated resident may request a fair hearing in accordance with 1 TAC Chapter 357, Subchapter A (relating to Uniform Fair Hearing Rules) to appeal the denial.

 

§19.2752 Qualifications of a Provider of Therapy Services

A nursing facility must ensure that therapy services are provided to a designated resident by:

(1) a person who:

(A) is a speech-language pathologist licensed by the Texas Department of Licensing and Regulation; or
(B) meets the educational requirements and has accumulated, or is in the process of accumulating, the supervised professional experience required to be licensed as a speech-language pathologist;

(2) an occupational therapist licensed by the Texas Board of Occupational Therapy Examiners;
(3) an occupational therapy assistance licensed by the Texas Board of Ocupational Therapy Examiners;
(4) a physical therapist licensed by the Texas Board of Physical Therapy Examiners; or
(5) a physical therapy assistant licensed by the Texas Board of Physical Therapy Examiners.

 

§19.2753 Payment for Therapy Services

(a) HHSC pays a nursing facility for therapy services provided to a designated resident based on fees determined in accordance with 1 TAC §355.313 (relating to Reimbursement Methodology for Rehabilitative and Specialized Services).
(b) A therapy session is one hour of therapy provided to one resident.
(c) An assessment is reimbursed at the same rate as a therapy session.
(d) An occupational therapist or physical therapist may assess a designated resident at any time to evaluate the needs of the designated resident for a therapy service, but HHSC does not pay for an assessment of a designated resident conducted within 180 days after the previous assessment of the designated resident.
(e) A nursing facility must submit a complete and accurate claim for a therapy service within 12 months after the last day of an authorization from HHSC to provide the service.

 

§19.2754 Requesting Authorization to Provide Durable Medical Equipment and Customized Manual Wheelchairs

(a) To request authorization to provide DME or a CMWC to a designated resident, a nursing facility must ensure that a physical therapist or occupational therapist licensed in Texas assesses the designated resident for the DME or CMWC. If, based on the assessment, the physical or occupational therapist recommends DME or a CMWC, the nursing facility must request authorization to provide the DME or CMWC through the LTC Online Portal. The assessment required by this subsection must be completed within 30 days before the nursing facility requests authorization through the LTC Online Portal.
(b) The request for authorization to provide DME or CMWC made through the LTC Online Portal must include:

(1) the assessment of the designated resident described in subsection (a) of this section;
(2) a statement signed by the designated resident’s attending physician that the DME or CMWC is medically necessary; and
(3) detailed specifications of the DME or CMWC from a DME supplier.

(c) The documentation of the physical or occupational therapy assessment required by subsection (a) of this section must include:

(1) a diagnosis of the designated resident relevant to the need for DME or a CMWC;
(2) the specific DME or CMWC, including any adaptations recommended for the designated resident; and
(3) a description of how the DME or CMWC will meet the specific needs of the designated resident.

(d) After a nursing facility submits a request for authorization to provide DME or a CMWC to a designated resident:

(1) the nursing facility receives a written approval or denial of its request through the LTC Online Portal; and
(2) HHSC notifies the designated resident or the designated resident’s LAR that the request has been approved or denied.

(e) If HHSC approves a request to provide DME or a CMWC to a designated resident, the nursing facility must order the DME or CMWC from a DME supplier within 5 business days after receiving notification of the approval through the LTC Online Portal.
(f) If HHSC denies a request to provide DME or a CMWC to a designated resident, the designated resident may request a fair hearing in accordance with 1 TAC Chapter 357, Subchapter A (relating to Uniform Fair Hearing Rules), to appeal the denial.

 

§19.2755 Payment for Durable Medical Equipment and Customized Manual Wheelchairs

(a) A nursing facility must fully explore and use other sources to pay for DME or a CMWC before requesting payment from HHSC. If another funding source is available, HHSC pays no more than the remaining balance after other sources have paid.
(b) HHSC pays a nursing facility for an assessment for DME or a CMWC for a designated resident based on fees determined in accordance with 1 TAC §355.313 (relating to Reimbursement Methodology for Rehabilitative and Specialized Services).

(1) HHSC pays for DME or CMWC assessment at the same rate as a therapy session.
(2) An occupational therapist or physical therapist may assess a designated resident at any time to evaluate the needs of the designated resident for DME or a CMWC, but HHSC does not pay for an assessment of a designated resident conducted within 180 days after the previous assessment of the designated resident.

(c) A complete and accurate claim for DME or a CMWC must be received by HHSC within 12 months after the day the DME or CMWC is purchased.
(d) A nursing facility must not submit a claim for payment for DME or a CMWC to HHSC before:

(1) an occupational therapist or physical therapist licensed in Texas verified that the DME or CMWC meets the original specifications and the needs of the designated resident; and
(2) the nursing facility documents the verification in the LTC Online Portal.

(e) If HHSC denies a request for payment for DME or a CMWC because a nursing facility did not obtain authorization before purchasing the DME or CMWC or did not submit necessary documentation to HHSC, the facility may not charge the designated resident or family for the DME or CMWC.

 

§19.2756 Administrative Requirements for Durable Medical Equipment and Customized Ma