Revision 17-1

 

 

§98.11 Criteria for Licensing

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

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

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

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

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

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

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

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

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

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

 

§98.12 Building Approval

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

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

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

§98.13 Applicant Disclosure Requirements

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

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

(c) General information required.

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

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

 

§98.14 Increase in Capacity

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

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

 

§98.15 Renewal Procedures and Qualifications

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

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

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

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

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

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

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

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

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

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

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

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

 

§98.16 Change of Ownership and Notice of Changes

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

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

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

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

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

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

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

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

 

§98.17 Change of Staff

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

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

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

 

§98.18 Time Periods for Processing Licensing Applications

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

§98.20 Opportunity to Show Compliance

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

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

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

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

 

§98.21 License Fees

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

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

 

§98.22 Plan Review Fees

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

(b) The fee schedule follows:

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

 

§98.23 Relocation

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

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

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

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

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