(a) The purpose of this chapter is to establish:
(1) the criteria and application procedure for licensing an assisted living facility;
(2) the licensing standards with which an assisted living facility must comply and that serve as a basis for licensure inspections, including:
(A) operation and resident care standards; and
(B) facility construction standards;
(3) the inspections and investigations DADS may conduct as a regulatory authority; and
(4) enforcement actions DADS may take against an assisted living facility.
(b) This chapter applies to an assisted living facility licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 247. Assisted living services are driven by a philosophy that emphasizes personal dignity and autonomy to age in place in a residential setting while receiving increasing or decreasing levels of services as the persons needs change.
The following words and terms, when used in this chapter, have the following meaning, unless the context clearly indicates otherwise.
(1) Abuse —
(A) for a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes, the term has the meaning in Texas Family Code §261.401(1), which is an intentional, knowing, or reckless act or omission by an employee, volunteer, or other individual working under the auspices of a facility or program that causes or may cause emotional harm or physical injury to, or the death of, a child served by the facility or program as further described by rule or policy; and
(B) for a person other than one described in subparagraph (A) of this paragraph, the term has the meaning in Texas Health and Safety Code §260A.001(1), which is:
(i) the negligent or willful infliction of injury, unreasonable confinement, intimidation, or cruel punishment with resulting physical or emotional harm or pain to a resident by the resident's caregiver, family member, or other individual who has an ongoing relationship with the resident; or
(ii) sexual abuse of a resident, including any involuntary or nonconsensual sexual conduct that would constitute an offense under Section 21.08, Penal Code (indecent exposure), or Chapter 22, Penal Code (assaultive offenses), committed by the resident's caregiver, family member, or other individual who has an ongoing relationship with the resident.
(2) Accreditation commission — Has the meaning given in Texas Health and Safety Code, §247.032.
(3) Advance directive — Has the meaning given in Texas Health and Safety Code, §166.002.
(4) Affiliate — With respect to:
(A) a partnership, each partner thereof;
(B) a corporation, each officer, director, principal stockholder, subsidiary, and each person with a disclosable interest, as the term is defined in this section; and
(C) a natural person:
(i) said person's spouse;
(ii) each partnership and each partner thereof of which said person or any affiliate of said person is a partner; and
(iii) each corporation in which said person is an officer, director, principal stockholder, or person with a disclosable interest.
(5) Alzheimer's Assisted Living Disclosure Statement form — The DADS-prescribed form a facility uses to describe the nature of care or treatment of residents with Alzheimer's disease and related disorders.
(6) Alzheimer's disease and related disorders — Alzheimer's disease and any other irreversible dementia described by the Centers for Disease Control and Prevention (CDC) or the most current edition of the Diagnostic and Statistical Manual of Mental Disorders.
(7) Alzheimer's facility — A type B assisted living facility that is certified to provide specialized services to residents with Alzheimer's or a related condition.
(8) Applicant — A person applying for a license to operate an assisted living facility under Texas Health and Safety Code, Chapter 247.
(9) Attendant — A facility employee who provides direct care to residents. This employee may serve other functions, including cook, janitor, porter, maid, laundry worker, security personnel, bookkeeper, activity director, and manager.
(10) Authorized electronic monitoring (AEM) — 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.
(11) Behavioral emergency — Has the meaning given in §92.41(p)(2) of this chapter (relating to Standards for Type A and Type B Assisted Living Facilities).
(12) Certified Ombudsman — Has the meaning given in 26 TAC §88.2 (relating to Definitions).
(13) CFR — Code of Federal Regulations.
(14) 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.
(15) Commingles — The laundering of apparel or linens of two or more individuals together.
(16) Controlling person — A person with the ability, acting alone or with others, to directly or indirectly influence, direct, or cause the direction of the management, expenditure of money, or policies of an assisted living facility or other person. A controlling person includes:
(A) a management company, landlord, or other business entity that operates or contracts with others for the operation of an assisted living facility;
(B) any person who is a controlling person of a management company or other business entity that operates an assisted living facility or that contracts with another person for the operation of an assisted living 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 an assisted living facility, is in a position of actual control or authority with respect to the facility, without regard to whether the individual is formally named as an owner, manager, director, officer, provider, consultant, contractor, or employee of the facility, except an employee, lender, secured creditor, landlord, or other person who does not exercise formal or actual influence or control over the operation of an assisted living facility.
(17) Covert electronic monitoring — The placement and use of an electronic monitoring device that is not open and obvious, and the facility and DADS 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.
(18) DADS — Prior to September 1, 2017, the Department of Aging and Disability Services. September 1, 2017, and after, the Texas Health and Human Services Commission (HHSC).
(19) DHS — Formerly, this term referred to the Texas Department of Human Services; it now refers to DADS.
(20) Dietitian — A person who currently holds a license or provisional license issued by the Texas State Board of Examiners of Dietitians.
(21) Direct ownership interest — Ownership of equity in the capital, stock, or profits of, or a membership interest in, an applicant or license holder.
(22) Disclosable interest — Five percent or more direct or indirect ownership interest in an applicant or license holder.
(23) Disclosure statement — A DADS form for prospective residents or their legally authorized representatives that a facility must complete. The form contains information regarding the preadmission, admission, and discharge process; resident assessment and service plans; staffing patterns; the physical environment of the facility; resident activities; and facility services.
(24) 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.
(25) Exploitation —
(A) for a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes, the term has the meaning in Texas Family Code §261.401(2), which is the illegal or improper use of a child or of the resources of a child for monetary or personal benefit, profit, or gain by an employee, volunteer, or other individual working under the auspices of a facility or program as further described by rule or policy; and
(B) for a person other than one described in subparagraph (A) of this paragraph, the term has the meaning in Texas Health and Safety Code §260A.001(4), which is the illegal or improper act or process of a caregiver, family member, or other individual who has an ongoing relationship with the resident using the resources of a resident for monetary or personal benefit, profit, or gain without the informed consent of the resident.
(26) Facility — An entity required to be licensed under the Assisted Living Facility Licensing Act, Texas Health and Safety Code, Chapter 247.
(27) Fire suppression authority — The paid or volunteer fire-fighting organization or tactical unit that is responsible for fire suppression operations and related duties once a fire incident occurs within its jurisdiction.
(28) Flame spread — The rate of fire travel along the surface of a material. This is different than other requirements for time-rated burn through resistance ratings, such as one-hour rated. Flame spread ratings are Class A (0-25), Class B (26-75), and Class C (76-200).
(29) Governmental unit — The state or any county, municipality, or other political subdivision, or any department, division, board, or other agency of any of the foregoing.
(30) Health care professional — An individual licensed, certified, or otherwise authorized to administer health care, for profit or otherwise, in the ordinary course of business or professional practice. The term includes a physician, registered nurse, licensed vocational nurse, licensed dietitian, physical therapist, and occupational therapist.
(31) Immediate threat — There is considered to be an immediate threat to the health or safety of a resident, or a situation is considered to put the health or safety of a resident in immediate jeopardy, if there is a situation in which an assisted living facility's noncompliance with one or more requirements of licensure has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.
(32) Immediately available — The capacity of facility staff to immediately respond to an emergency after being notified through a communication or alarm system. The staff are to be no more than 600 feet from the farthest resident and in the facility while on duty.
(33) Indirect ownership interest — Any ownership or membership interest in a person that has a direct ownership interest in an applicant or license holder.
(34) Large facility — A facility licensed for 17 or more residents.
(35) Legally authorized representative — A person authorized by law to act on behalf of a person with regard to a matter described in this chapter, and may include a parent, guardian, or managing conservator of a minor, or the guardian of an adult.
(36) License holder — A person that holds a license to operate a facility.
(37) Listed — Equipment, materials, or services included in a list published by an organization concerned with evaluation of products or services, that maintains periodic inspection of production of listed equipment or materials or periodic evaluation of services, and whose listing states that either the equipment, material, or service meets appropriate designated standards or has been tested and found suitable for a specified purpose. The listing organization must be acceptable to the authority having jurisdiction, including DADS or any other state, federal or local authority.
(38) Local code — A model building code adopted by the local building authority where the assisted living facility is constructed or located.
(39) 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, transportation, or food services.
(40) Manager — The individual in charge of the day-to-day operation of the facility.
(41) Managing local ombudsman — Has the meaning given in 26 TAC §88.2.
(42) Medication —
(A) Medication is any substance:
(i) recognized as a drug in the official United States Pharmacopoeia, Official Homeopathic Pharmacopoeia of the United States, Texas Drug Code Index or official National Formulary, or any supplement to any of these official documents;
(ii) intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease;
(iii) other than food intended to affect the structure or any function of the body; and
(iv) intended for use as a component of any substance specified in this definition.
(B) Medication includes both prescription and over-the-counter medication, unless otherwise specified.
(C) Medication does not include devices or their components, parts, or accessories.
(43) Medication administration — The direct application of a medication or drug to the body of a resident by an individual legally allowed to administer medication in the state of Texas.
(44) Medication assistance or supervision — The assistance or supervision of the medication regimen by facility staff. Refer to §92.41(j) of this chapter.
(45) Medication (self-administration) — The capability of a resident to administer the resident's own medication or treatments without assistance from the facility staff.
(46) Neglect —
(A) for a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes, the term has the meaning in Texas Family Code, §261.401(3), which is a negligent act or omission by an employee, volunteer, or other individual working under the auspices of a facility or program, including failure to comply with an individual treatment plan, plan of care, or individualized service plan, that causes or may cause substantial emotional harm or physical injury to, or the death of, a child served by the facility or program as further described by rule or policy; and
(B) for a person other than one described in subparagraph (A) of this paragraph, the term has the meaning in Texas Health and Safety Code §260A.001(6), which is the failure to provide for one's self the goods or services, including medical services, which are necessary to avoid physical or emotional harm or pain or the failure of a caregiver to provide such goods or services.
(47) NFPA 101 — The 2000 publication titled "NFPA 101 Life Safety Code" published by the National Fire Protection Association, Inc., 1 Batterymarch Park, Quincy, Massachusetts 02169.
(48) Ombudsman Intern — Has the meaning given in 26 TAC §88.2.
(49) Ombudsman program — Has the meaning given in 26 TAC §88.2.
(50) Person — Any individual, firm, partnership, corporation, association, or joint stock association, and the legal successor thereof.
(51) Personal care services — Assistance with feeding, dressing, moving, bathing, or other personal needs or maintenance; or general supervision or oversight of the physical and mental well-being of a person who needs assistance to maintain a private and independent residence in the facility or who needs assistance to manage his or her personal life, regardless of whether a guardian has been appointed for the person.
(52) Physician — A practitioner licensed by the Texas Medical Board.
(53) Practitioner — An individual who is currently licensed in a state in which the individual practices as a physician, dentist, podiatrist, or a physician assistant; or a registered nurse approved by the Texas Board of Nursing to practice as an advanced practice registered nurse.
(54) Private and unimpeded access — Access to enter a facility, or communicate with a resident outside of the hearing and viewing of others, without interference or obstruction from facility employees, volunteers, or contactors.
(55) Qualified medical personnel — An individual who is licensed, certified, or otherwise authorized to administer health care. The term includes a physician, registered nurse, and licensed vocational nurse.
(56) Resident — An individual accepted for care in a facility.
(57) Respite — The provision by a facility of room, board, and care at the level ordinarily provided for permanent residents of the facility to a person for not more than 60 days for each stay in the facility.
(58) 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.
(59) Restraints — Chemical restraints are psychoactive drugs administered for the purposes of discipline or convenience and are not required to treat the resident's medical symptoms. Physical restraints are any manual method, or physical or mechanical device, material, or equipment attached or adjacent to the resident that restricts freedom of movement. Physical restraints include restraint holds.
(60) Safety — Protection from injury or loss of life due to such conditions as fire, electrical hazard, unsafe building or site conditions, and the hazardous presence of toxic fumes and materials.
(61) Seclusion — The involuntary separation of a resident from other residents and the placement of the resident alone in an area from which the resident is prevented from leaving.
(62) Service plan — A written description of the medical care, supervision, or nonmedical care needed by a resident.
(63) Short-term acute episode — An illness of less than 30 days duration.
(64) Small facility — A facility licensed for 16 or fewer residents.
(65) Staff — Employees of an assisted living facility.
(66) Standards — The minimum conditions, requirements, and criteria established in this chapter with which a facility must comply to be licensed under this chapter.
(67) State ombudsman — Has a meaning given in 26 TAC §88.2.
(68) Terminal condition — A medical diagnosis, certified by a physician, of an illness that will result in death in six months or less.
(69) Universal precautions — An approach to infection control in which blood, any body fluids visibly contaminated with blood, and all body fluids in situations where it is difficult or impossible to differentiate between body fluids are treated as if known to be infectious for HIV, hepatitis B, and other blood-borne pathogens.
(70) 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.
(71) Willfully interfere — To act or not act to intentionally prevent, interfere with, or impede or attempt to intentionally prevent, interfere with, or impede.
(72) Working day — Any 24-hour period, Monday through Friday, excluding state and federal holidays.
(a) Basis for licensure type. An assisted living facility must be licensed as a Type A, Type B, or Type C facility. A facility's licensure type is based on the capability of the residents to evacuate the facility or the types of services the facility provides, or both, as described in this section.
(b) Type A. In a Type A facility, a resident:
(1) must be physically and mentally capable of evacuating the facility without physical assistance from staff, which may include an individual who is mobile, although non-ambulatory, such as an individual who uses a wheelchair or an electric cart, and has the capacity to transfer and evacuate himself or herself in an emergency;
(2) does not require routine attendance during nighttime sleeping hours; and
(3) must be capable of following directions under emergency conditions.
(4) must be able to demonstrate to DADS that they can meet the evacuation requirements described in §92.62(b) of this chapter.
(c) Type B. In a Type B facility, a resident may:
(1) require staff assistance to evacuate;
(2) require attendance during nighttime sleeping hours;
(3) be incapable of following directions under emergency conditions; and
(4) require assistance in transferring to and from a wheelchair, but must not be permanently bedfast.
(d) Type C. A Type C facility is a four-bed facility that:
(1) has an active contract with DADS to provide adult foster care services as described in Chapter 48, Subchapter K of this title (relating to Minimum Standards for Adult Foster Care); and
(2) must be contracted with DADS to provide adult foster care services before it can be licensed.
(a) Basic fees.
(1) Type A, Type B, and Type E. The license fee is $200, plus $10 for each bed for which a license is sought, with a maximum of $1,500. The license fee for a one-year license issued in accordance with §92.15(b)(1) of this chapter (relating to Renewal Procedures and Qualifications) is $100, plus $5 for each bed for which a license is sought, with a maximum of $750. The fee must be paid with each initial application and with each renewal application.
(2) Type C. The license fee is $100. The license fee for a one-year license issued in accordance with §92.15(b)(1) of this chapter is $50. The fee must be paid with each initial application and with each renewal application.
(3) Increase in capacity. An approved increase in capacity is subject to an additional fee of $10 for each bed.
(b) Late renewal fee. An applicant that submits an application for license renewal later than the 45th day before the expiration date of the license must pay a late fee of an amount equal to one-half of the basic fee required in accordance with subsection (a)(1) and (2) of this section.
(c) Alzheimer's certification. In addition to the basic license fee described in subsection (a) of this section, a facility that applies for certification as an Alzheimer's facility under Subchapter C of this chapter (relating to Standards for Licensure) must pay an additional license fee. The additional fee is $200, except the additional fee for a facility renewing its Alzheimer's certification in accordance with §92.51(f)(1) of this chapter (relating to Licensure of Facilities for Persons with Alzheimer's Disease) is $100 for the first renewal beginning September 1, 2008.
(d) Trust fund fee.
(1) If the amount in the assisted living facility trust fund, established under Texas Health and Safety Code, Chapter 242, Subchapter D, and Chapter 247, §247.003(b), is less than $500,000, DADS collects an annual fee from each facility. The fee is based on a monetary amount specified for each licensed unit of capacity or bed space, and is in an amount sufficient to provide not more than $500,000 in the trust fund. When the trust fund fee is collected, DADS sends written notice to each facility stating the amount of the fee and the date the fee is due. A facility must pay the amount of the fee within 90 days after the date the fee is due.
(2) DADS may charge and collect a trust fund fee more than once a year if necessary to ensure that the amount in the assisted living facility trust fund is sufficient to make the disbursements required under Texas Health and Safety Code, §242.0965. When this subsequent trust fund fee is collected, DADS sends written notice to each facility stating the amount of the fee and the date the fee is due. A facility must pay the amount of the fee within 90 days after the date the fee is due.
(3) Failure to pay the trust fund fee within 90 days after the date the fee is due as stated on the written notice described in paragraphs (1) and (2) of this subsection may result in an assessment of an administrative penalty under the administrative penalties described in Subchapter H, Division 9 of this chapter (relating to Administrative Penalties).
(e) Plan review fee. An applicant may submit building plans for a new building, an addition, the conversion of a building not licensed, or for the remodeling of an existing licensed facility for review by DADS architectural staff. If the applicant chooses to submit building plans for review, the applicant must pay a fee for the plan review according to the following schedule:
(f) Payment of fees. Payment of fees must be by check, cashier's check, or money order made payable to the Department of Aging and Disability Services. All fees are nonrefundable, except as provided in Texas Government Code, Chapter 2005, and in §92.13(d) of this chapter (relating to Time Periods for Processing All Types of License Applications).
(g) Expedited Life Safety Code and physical plant inspection fee. An applicant may obtain a Life Safety Code and physical plant inspection within 15 business days after DADS receives a written request for an expedited inspection if:
(1) the applicant:
(A) meets the criteria in §92.14 of this chapter (relating to Initial License Application Procedures and Requirements); or
(B) has a current license, and is completing construction that does not alter the capacity of the facility; and
(2) the applicant submits the appropriate Life Safety Code fee listed in the following schedule.
Expedited Life Safety Code and Physical Plant Inspection Fees – For information about document accessibility, contact DADS at email@example.com.
(h) If, after DADS conducts two Life Safety Code inspections for a given application, and the applicant requests an additional inspection, then the applicant must pay a fee of $25 per bed, with a minimum payment of $1,000 for the third and each subsequent inspection pertaining to the same application.
(a) A health care professional may coordinate the provision of services to a resident within the professional's scope of practice and as authorized under Texas Health and Safety Code, Chapter 247, however, a facility must not provide ongoing services to a resident that are comparable to the services available in a nursing facility licensed under Texas Health and Safety Code, Chapter 242.
(b) A resident may contract with a home and community support services agency licensed under Chapter 142 or with an independent health professional to have health care services delivered to the resident at the facility.
This section describes some general characteristics of a resident in an assisted living facility. A resident may:
(1) exhibit symptoms of mental or emotional disturbance, but is not considered at risk of imminent harm to self or others;
(2) need assistance with movement;
(3) require assistance with bathing, dressing, and grooming;
(4) require assistance with routine skin care, such as application of lotions or treatment of minor cuts and burns;
(5) need reminders to encourage toilet routine and prevent incontinence;
(6) require temporary services by professional personnel;
(7) need assistance with medication, supervision of self-medication, or administration of medication;
(8) require encouragement to eat or monitoring due to social or psychological reasons of temporary illness;
(9) be hearing impaired or speech impaired;
(10) be incontinent without pressure sores;
(11) require an established therapeutic diet;
(12) require self-help devices; and
(13) need assistance with meals, which may include feeding.