Revision 17-1

 

 

§90.11 Criteria for Licensing

 

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

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

(c) An applicant for a license must affirmatively show that:

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

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

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

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

(1) the applicant or license holder; and

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

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

 

§90.12 Building Approval

 

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

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

(1) New facility. The sponsor of a new facility under construction or a previously unlicensed facility must provide to DHS a copy of a dated written notice to the local health authority that construction or modification has been or will be completed by a specific date. The sponsor must also provide a copy of a dated written notice of the approval for occupancy by the local fire marshal or local building code authority, if applicable. The local health authority may provide recommendations to DHS regarding the status of compliance with local codes, ordinances, or regulations. An application for an increase in capacity for a new facility that was not included in the bed plan approved under the Health and Safety Code §533.062 will not be approved by DHS, as outlined under §90.14 of this title (relating to Increase in Capacity).

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

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

(4) Renewal. DHS sends the local health authority a copy of DHS's license renewal notice specifying the expiration date of the facility's current license. The local health authority may provide recommendations to DHS regarding the status of compliance with local codes, ordinances, or regulations. The local authority may also recommend that a state license be issued or denied; however, the final decision on licensure status remains with DHS.

 

§90.13 Applicant Disclosure Requirements

 

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

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

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

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

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

(4) the facility's administrator; or

(5) the controlling person.

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

(1) for initial applications and change of ownership only, evidence of the right to possession of the facility at the time the application will be granted, which may be satisfied by the submission of applicable portions of a lease agreement, deed or trust, or appropriate legal document. The names and addresses of any persons or organizations listed as owner of record in the real estate, including the buildings and grounds must be disclosed to DHS;

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

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

 

§90.14 Increase in Capacity

 

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

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

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

 

§90.15 Renewal Procedures and Qualifications

 

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

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

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

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

(3) submits a complete or incomplete application with a letter explaining the circumstances which prevented the inclusion of the missing information to DADS, DADS receives the application during the 45-day period ending on the date the current license expires, and the license holder pays the late renewal fee established in §90.19(a)(4) of this subchapter (relating to License Fees) in addition to the basic renewal fee.

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

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

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

 

§90.16 Change of Ownership

 

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

 

(a) DADS may deny an initial license or refuse to renew a license if any person described in §90.11(d) of this subchapter (relating to Criteria for Licensing):

(1) is subject to denial or refusal as described in Chapter 99 of this title (relating to Denial or Refusal of License) during the time frames described in that chapter;

(2) substantially fails to comply with the requirements described in §90.42 of this chapter (relating to Standards for Facilities Serving Persons with Mental Retardation or Related Conditions), including:

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

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

(3) aids, abets, or permits a substantial violation described in paragraph (2) of this subsection about which the person had or should have had knowledge;

(4) fails to provide the required information, facts, or references;

(5) provides the following false or fraudulent information:

(A) knowingly submits false or intentionally misleading statements to DADS;

(B) uses subterfuge or other evasive means of filing;

(C) engages in subterfuge or other evasive means of filing on behalf of another who is unqualified for licensure;

(D) knowingly conceals a material fact; or

(E) is responsible for fraud;

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

(A) licensing fees as described in §90.19 of this subchapter (relating to License Fees);

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

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

(D) franchise taxes;

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

(A) operation of a facility that has been decertified or had its contract cancelled under the Medicare or Medicaid program in any state;

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

(C) unsatisfied final judgments;

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

(E) suspension of a license to operate a health care facility, long term care facility, assisted living facility, or a similar facility in any state.

(b) Concerning subsection (a)(7) of this section, DADS may consider exculpatory information provided by any person described in §90.11(d) of this subchapter and grant a license if DADS finds that person able to comply with the rules in this chapter.

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

(1) revocation of a license to operate a health care facility, long term care facility, assisted living facility, or similar facility in any state;

(2) debarment or exclusion from the Medicare or Medicaid programs by the federal government or a state; or

(3) a court injunction prohibiting any person described in §90.11(d) of this subchapter from operating a facility.

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

(e) If an applicant for a new license owns multiple facilities, DADS examines the overall record of compliance in all of the applicant’s facilities. Denial of a new license will not preclude the renewal of licenses for the applicant’s other facilities with a history of compliance with licensing regulations.

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

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

 

§90.18 Informal Reconsideration

 

(a) Before the institution of proceedings to revoke or suspend a license or deny an application for the renewal of a license, the Texas Department of Human Services (DHS) gives the license holder:

(1) notice by personal service or by registered or certified mail of the facts or conduct alleged to warrant the proposed action; and

(2) an opportunity to show compliance with all requirements of law for the retention of the license by sending the director of Long Term Care-Regulatory a written request for an informal review. The request must:

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

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

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

 

§90.19 License Fees

 

(a) Basic fees.

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

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

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

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

(b) Emergency Assistance Fee.

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

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

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

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

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

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

 

§90.20 Plan Review Fees

 

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

(b) The fee schedule is as follows.

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

(A) single story – $900;

(B) multiple story – $1,100; and

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

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

(A) single story:

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

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

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

(B) multiple story:

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

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

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

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

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

(A) single story – $1,100;

(B) multiple story – $1,650;

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

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

(A) single story:

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

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

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

(B) multiple story:

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

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

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

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

 

§90.21 Time Periods for Processing License Applications

 

(a) The Texas Department of Human Services (DHS) will process only applications received within 60 days prior to the requested date of the issuance of the license.

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

(c) If the application is postmarked by the filing deadline, the application will be considered to be timely filed if received in the Licensing Section of the state office of Long Term Care-Regulatory, Texas Department of Human Services, within 15 days of the postmark.

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

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

(f) Reimbursement of fees.

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

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

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

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

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

 

§90.22 Relocation

 

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

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

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

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

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

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