§90.42 Standards for Facilities Serving Individuals with Intellectual Disability or Related Conditions
(a) Purpose. The purpose of this section is to promote the public health, safety, and welfare by providing for the development, establishment, and enforcement of standards:
(1) for the habilitation of individuals based on an active treatment program in facilities governed by this chapter; and
(2) for the establishment, construction, maintenance, and operation of such facilities that view an intellectual disability and related conditions within the context of a developmental model in accordance with the principle of normalization.
(b) Philosophy. A facility regulated by the standards in this section is known as an intermediate care facility for individuals with an intellectual disability or related conditions (ICF/IID). Individuals in these facilities have the same civil rights, equal liberties, and due process of law as other individuals, plus the right to receive active treatment and habilitation. Facilities shall provide and promote services that enhance the development of such individuals, maximize their achievement through an interdisciplinary approach based on developmental principles, and create an environment, to the extent possible, that is normalized and normalizing.
(c) Standards. Each ICF/IID must comply with regulations promulgated by the United States Department of Health and Human Services in Title 42, Code of Federal Regulations (CFR), Part 483, Subpart I, §§483.400-483.480. Additionally, DADS adopts by reference the federal regulations governing conditions of participation for the ICF/IID program as specified in 42 CFR, Part 483, Subpart I, §§483.410, 483.420, 483.430, 483.440, 483.450, 483.460, 483.470, and 483.480 as licensing standards.
(d) Precertification training conference for new providers of service. Each new provider must attend the precertification/prelicensure training conference prior to licensing by DADS. The purpose of the training is to assure that providers of services are familiar with the licensing requirements and to facilitate the delivery of quality services to residents in facilities serving persons with intellectual disability or related conditions.
(1) A new provider is an entity which has not had at least one year of administering services in a facility serving persons with intellectual disability or related conditions in Texas. All new providers must attend a precertification training conference prior to the life safety code survey.
(2) Each new provider must designate at least one individual who will be involved with the direct management of the facility to attend the training conference prior to a health survey being scheduled.
(3) Each new provider will be given a training schedule. DADS will schedule training sessions, and the date, time, and location of the training will be indicated on the schedule.
(e) Additional requirements.
(1) A facility must develop and implement policies and procedures for reporting abuse, neglect, and exploitation to the Department of Family and Protective Services (DFPS) and reporting other incidents to DADS.
(2) In the area of cardiopulmonary resuscitation (CPR), the following apply:
(A) At least one staff person per shift and on duty must be trained by a CPR instructor certified by an organization such as the American Heart Association or the Red Cross.
(B) The facility must ensure that staff members maintain their certification as recommended by such organizations.
(3) In the area of behavior management, seclusion of residents may not be used.
(4) In the area of physical restraints, the following apply:
(A) A facility must not use restraint:
(i) in a manner that:
(I) obstructs the resident's airway, including the placement of anything in, on, or over the resident's mouth or nose;
(II) impairs the resident's breathing by putting pressure on the resident's torso;
(III) interferes with the resident's ability to communicate;
(IV) extends muscle groups away from each other;
(V) uses hyperextension of joints; or
(VI) uses pressure points or pain;
(ii) for disciplinary purposes, that is, as retaliation or retribution;
(iii) for the convenience of staff or other residents; or
(iv) as a substitute for effective treatment or habilitation.
(B) A facility may use restraint:
(i) in a behavioral emergency;
(ii) as an intervention in a behavior therapy program that addresses inappropriate behavior exhibited voluntarily by a resident;
(iii) during a medical or dental procedure if necessary to protect the resident or others and as a follow-up after a medical or dental procedure or following an injury to promote the healing of wounds;
(iv) to protect the resident from involuntary self-injury; and
(v) to provide postural support to the resident or to assist the resident in obtaining and maintaining normative bodily functioning.
(C) In order to decrease the frequency of the use of restraint and to minimize the risk of harm to a resident, a facility must ensure that the interdisciplinary team:
(i) with the participation of a physician, or a physician assistant or an advanced practice nurse acting within the scope of his or her practice, identifies:
(I) the resident's known physical or medical conditions that might constitute a risk to the resident during the use of restraint;
(II) the resident's ability to communicate; and
(III) other factors that must be taken into account if the use of restraint is considered, including the resident's:
(-a-) cognitive functioning level;
(-d-) emotional condition (including whether the resident has a history of having been physically or sexually abused); and
(ii) documents the conditions and factors identified in accordance with clause (i) of this subparagraph, and, as applicable, limitations on specific restraint techniques or mechanical restraint devices in the resident's record; and
(iii) reviews and updates with a physician, physician assistant, or licensed nurse, at least annually or when a condition or factor documented in accordance with clause (ii) of this subparagraph changes significantly, information in the resident's record related to the identified condition, factor, or limitation.
(D) If a facility restrains a resident as provided in subparagraph (B) of this paragraph, the facility must:
(i) take into account the conditions, factors, and limitations on specific restraint techniques or mechanical restraint devices documented in accordance with subparagraph (C)(ii) and (iii) of this paragraph;
(ii) use the minimal amount of force or pressure that is reasonable and necessary to ensure the safety of the resident and others;
(iii) safeguard the resident's dignity, privacy, and well-being; and
(iv) not secure the resident to a stationary object while the resident is in a standing position.
(E) If a facility uses restraint in a circumstance described in subparagraph (B)(i) or (ii) of this paragraph:
(i) the facility may use only a personal hold in which the resident's limbs are held close to the body to limit or prevent movement and that does not violate the provisions of subparagraph (A)(i) of this paragraph; and
(ii) if a resident rolls into a prone or supine position during restraint, the facility must transition the resident to a side, sitting, or standing position as soon as possible. The facility may only use a prone or supine hold:
(I) as a transitional hold, and only for the shortest period of time necessary to ensure the protection of the resident or others;
(II) as a last resort, when other less restrictive interventions have proven to be ineffective; and
(III) except in a small facility, when an observer who is trained to identify risks associated with positional, compression, or restraint asphyxiation, and with prone and supine holds is ensuring that the resident's breathing is not impaired.
(F) A facility must release a resident from restraint:
(i) as soon as the resident no longer poses a risk of imminent physical harm to the resident or others; or
(ii) if the resident in restraint experiences a medical emergency, as soon as possible as indicated by the medical emergency.
(G) If a facility restrains a resident as provided in subparagraph (B)(i) of this paragraph, the facility must obtain a written order authorizing the restraint from a health care professional acting within his or her scope of practice by the end of the first business day after the use of restraint.
(H) A facility must ensure that each resident and the resident's legally authorized representative are notified of the DADS rules and the facility's policies related to restraint and seclusion.
(I) A facility may adopt policies that allow less use of restraint than allowed by the rules of this chapter.
(5) In the area of pharmacy services, the following applies.
(A) All pharmacy services must comply with the Texas State Board of Pharmacy requirements, the Texas Pharmacy Act, and rules adopted thereunder, the Texas Controlled Substances Act, and Texas Health and Safety Code, Chapter 483 (relating to Dangerous Drugs).
(B) All medications must be ordered orally or in writing by a health care professional acting within the scope of his or her practice. Oral orders may be taken only by a licensed nurse, a pharmacist, physician assistant, or physician, and must be immediately transcribed and signed by the individual taking the order. Oral orders must be signed by the health care professional who ordered the medication within seven working days after issuing the order.
(C) The facility, with input from the consultant pharmacist and a health care professional acting within the scope of his or her practice, must develop and implement procedures regarding automatic stop orders for medications. These procedures must be utilized when the order for a medication does not specify the number of doses to be given or the time for discontinuance or re-order.
(6) Specialized nutrition support (delivery of parenteral nutrients and enteral feedings by nasogastric, gastrostomy, or jejunostomy tubes) must be given:
(A) by a health care professional acting within the scope of his or her practice or by a person to whom a health care professional has properly delegated performance of the task; and
(B) in accordance with an order issued by a health care professional acting within the scope of his or her practice.
(7) In the area of self-administration of medication and emergency medication kits, the following apply.
(A) Residents who have demonstrated the competency for self-administration of medications must have access to and maintain their own medications. They must have an individual storage space that permits them to store their medications under lock and key.
(B) Residents may participate in a self-administration of medication training program if the interdisciplinary team determines that self-administration of medications is an appropriate objective. Residents participating in a self-administration of medication training program must have training in coordination with and as part of the resident's total active treatment program. The resident's training plan must be evaluated as necessary by a licensed nurse. The supervision and implementation of a self-administration of medication training program is administration of medication and may be conducted by unlicensed personnel in accordance with §90.43(a)(1), (3) and (4) of this chapter (relating to Administration of Medication).
(C) A facility may maintain a supply of controlled substances in an emergency medication kit for a resident's emergency medication needs, as outlined under §90.324 and §90.325 of this chapter (relating to Emergency Medication Kit and Controlled Substances).
(8) In the area of communicable diseases, the facility must have written policies and procedures for the control of communicable diseases in employees and residents. When any reportable communicable disease becomes evident, the facility must report in accordance with Communicable Disease and Prevention Act, Texas Health and Safety Code, Chapter 81, or as specified in 25 TAC §§97.1-97.13 (relating to Control of Communicable Diseases) and 25 TAC §§97.131-97.146 (relating to Sexually Transmitted Diseases Including Acquired Immunodeficiency Syndrome (AIDS) and Human Immunodeficiency Virus (HIV)) and in the publication titled, "Reportable Diseases in Texas," Publication 6-101a (Revised 1987). The local health authority should be contacted to assist the facility in determining the transmissibility of the disease and, in the case of employees, the ability of the employee to continue performing his duties. The facility must have written policies and procedures for infection control, which include implementation of universal precautions as recommended by the Centers for Disease Control and Prevention (CDC).
(9) In the area of water activities, the facility must assure the safety of all individuals who participate in facility-sponsored events. For the purpose of this section, a water activity is defined as an activity which occurs in or on water that is knee deep or deeper on the majority of individuals participating in the event. To assure the safety of all individuals who participate, the requirements in subparagraphs (A)-(F) of this paragraph apply.
(A) The facility must develop a policy statement regarding the water sites utilized by the facility. Water sites include, but are not limited to, lakes, amusement parks, and pools.
(B) A minimum of one staff person with demonstrated proficiency in cardiopulmonary resuscitation (CPR) must be on duty and at the site when individuals are involved in water activities.
(C) A minimum of one person with demonstrated proficiency in water life saving skills must be on duty and at the site when activities take place in or on water that is deep enough to require swimming for life saving retrieval. This person must maintain supervision of the activity for its duration.
(D) A sufficient number of staff or a combination of staff and volunteers must be available to meet the safety requirements of the group and/or specific individuals.
(E) Each individual's program plan must address each person's needs for safety when participating in water activities including, but not necessarily limited to, medical conditions; physical disabilities and/or behavioral needs which could pose a threat to safety; the ability to follow directions and instructions pertaining to water safety; the ability to swim independently; and, when called for, special precautions.
(F) If the interdisciplinary team recommends the use of a flotation device as a precaution for any individual to engage in water activities, it must be identified and precautions outlined in the individual program plan. The device must be approved by the United States Coast Guard or be a specialized therapy flotation device utilized in the individual's therapy program.
(10) In the area of communication, a facility may not prohibit a resident or employee from communicating in the person's native language with another resident or employee for the purpose of acquiring or providing care, training, or treatment.
(11) In the area of physical exams, a facility shall ensure that a resident is given at least one physical exam on a yearly basis by:
(A) a person licensed to practice medicine in accordance with Texas Occupations Code, Chapter 155 (relating to License to Practice Medicine);
(B) a person licensed as a physician assistant in accordance with Texas Occupations Code, Chapter 204 (relating to Physician Assistants); or
(C) a person licensed to practice professional nursing in accordance with Texas Occupations Code, Chapter 301 (relating to Nurses), and authorized by the Texas Board of Nursing to practice as an advanced practice nurse.
(a) Administration of medication to a resident of a facility may be performed only by:
(1) a person who holds a license under state law that authorizes the person to administer medication;
(2) in a facility, as defined in §95.101 of this title (relating to Introduction):
(A) a person who holds a permit issued under Texas Health and Safety Code §242.610 and acts under the authority of a person described in paragraph (1) of this subsection; or
(B) a person who is exempt from licensure or permit requirements in accordance with Texas Health and Safety Code §242.607;
(3) a person to whom a registered nurse has delegated the administration of medication under Chapter 224 or 225 of Title 22 (relating to Delegation of Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel for Clients with Acute Conditions or in Acute Environments and RN Delegation to Unlicensed Personnel and Tasks Not Requiring Delegation in Independent Living Environments for Clients with Stable and Predictable Conditions); or
(4) in a facility with a licensed or certified capacity of less than 14 residents, an unlicensed person who administers medication in accordance Texas Human Resource Code Chapter 161, Subchapter D-1.
(b) A person may perform administration of medication in accordance with subsection (a)(4) of this section without the requirement that a registered nurse delegate or oversee each administration if:
(1) the medication is:
(A) an oral medication;
(B) a topical medication; or
(C) a metered dose inhaler;
(2) the medication is administered to the resident for a stable or predictable condition;
(3) the resident has been personally assessed by a registered nurse initially and in response to significant changes in the resident's health status, and the registered nurse has determined that the resident's health status permits the administration of medication by an unlicensed person; and
(4) the unlicensed person has been:
(A) trained by a registered nurse or licensed vocational nurse under the direction of a registered nurse regarding proper administration of medication; or
(B) determined to be competent by a registered nurse or licensed vocational nurse under the direction of a registered nurse regarding proper administration of medication, including through a demonstration of proper technique by the unlicensed person.
(c) A registered nurse or a licensed vocational nurse under the supervision of a registered nurse must review the administration of medication to a resident by a person described in subsection (a)(4) of this section at least annually and after any significant change in the resident's condition.
A facility must ensure that an employee who is hired by a facility on or after May 1, 2016, and whose duties will require the employee to work directly with a resident completes trauma-informed care training provided by DADS before the employee works directly with a resident. For purposes of this section, "to work directly with a resident" means to serve on a resident's interdisciplinary team or otherwise work with a resident to implement the resident's individual program plan.
a) For the purposes of this section, a "self-release seat belt" is a seat belt on a resident's wheelchair that the resident demonstrates the ability to fasten and release without assistance. A self-release seat belt is not a restraint.
(b) Except as provided in subsection (c) of this section, a facility must allow a resident to use a self-release seat belt if:
(1) the resident or the resident's legally authorized representative requests that the resident use a self-release seat belt;
(2) the resident consistently demonstrates the ability to fasten and release the self-release seat belt without assistance;
(3) the use of the self-release seat belt is documented in and complies with the resident's individual program plan; and
(4) the facility receives written authorization, signed by the resident or the resident's legally authorized representative, for the resident to use the self-release seat belt.
(c) A facility that advertises as a restraint-free facility is not required to allow a resident to use a self-release seat belt if the facility:
(1) provides a written statement to all residents that the facility is restraint-free and is not required to allow a resident to use a self-release seat belt; and
(2) makes reasonable efforts to accommodate the concerns of a resident who requests a self-release seat belt in accordance with subsection (b) of this section.
(d) A facility is not required to continue to allow a resident to use a self-release seat belt in accordance with subsection (b) of this section if:
(1) the resident cannot consistently demonstrate the ability to fasten and release the seat belt without assistance;
(2) the use of the self-release seat belt does not comply with the resident's individual program plan; or
(3) the resident or the resident's legally authorized representative revokes in writing the authorization for the resident to use the self-release seat belt.
(a) Definitions. In this section:
(1) "emergency situation" means an impending or actual situation that:
(A) may interfere with normal activities of a facility or its residents;
(B) may cause:
(i) injury or death to a resident or staff member of the facility; or
(ii) damage to facility property;
(C) requires the facility to respond immediately to mitigate or avoid the injury, death, damage or interference; and
(D) does not include a situation that arises from the medical condition of a resident such as cardiac arrest, obstructed airway, cerebrovascular accident;
(2) "plan" means a facility's emergency preparedness and response plan; and
(3) "receiving facility" means a facility that has agreed to receive the residents of another facility who are evacuated due to an emergency situation.
(b) Administration. A facility must:
(1) develop and implement a written plan as described in subsection (c) of this section;
(2) maintain a current written copy of the plan that is accessible to all staff at all times;
(3) evaluate the plan to determine if information in the plan needs to change:
(A) within 30 days after an emergency situation;
(B) due to remodeling or making an addition to the facility; and
(C) at least annually;
(4) revise the plan within 30 days after information in the plan changes; and
(5) maintain documentation of compliance with this section.
(c) Emergency Preparedness and Response Plan. A facility's plan must:
(1) include a risk assessment of potential internal and external emergency situations, including a fire, failure of heating and cooling systems, a power outage, an explosion, a hurricane, a tornado, a flood, extreme snow and ice conditions for the area, a wildfire, terrorism, or a hazardous materials accident;
(2) include a description of the facility's resident population;
(3) include a description of the services and assistance needed by the residents in an emergency situation;
(4) include a section for each core function of emergency management that complies with subsection (d) of this section and is based on a facility's decision to either shelter-in-place or evacuate during an emergency situation; and
(5) include a fire safety plan that complies with subsection (f) of this section.
(d) Plan Requirements Regarding Eight Core Functions of Emergency Management.
(1) Direction and control. A facility's plan must contain a section for direction and control that:
(A) identifies the emergency preparedness coordinator (EPC), who is the facility staff person with the authority to manage the facility's response to an emergency situation in accordance with the plan;
(B) identifies the alternate EPC, who is the facility staff person with the authority to act as the EPC if the EPC is unable to serve in that capacity; and
(C) documents the name and contact information for the local emergency management coordinator (EMC) for the area in which the facility is located, as identified by the office of the local mayor or county judge.
(2) Warning. A facility's plan must contain a section for warning that:
(A) describes how the EPC will be notified of an emergency situation;
(B) identifies who the EPC will notify of an emergency situation and when the notification will occur, including during off hours, weekends, and holidays; and
(C) ensures monitoring of local news and weather reports.
(3) Communication. A facility's plan must contain a section for communication that:
(A) identifies the facility's primary mode of communication and alternate mode of communication to be used in an emergency situation;
(B) includes procedures for maintaining a current list of telephone numbers for residents' responsible parties;
(C) includes procedures for maintaining a current list of telephone numbers for potential places to which to evacuate, such as hotels, motels, and other facilities licensed under this chapter or certified to participate in the Medicaid ICF/MR Program;
(D) includes procedures for maintaining a current list of telephone numbers for the facility's staff, by residence or unit, that identifies the facility's EPC and administrative staff;
(E) identifies the location of the lists described in paragraphs (B)-(D) of this paragraph, which must be a place where facility staff can obtain the information quickly;
(F) includes procedures to notify:
(i) facility staff about an emergency situation;
(ii) a receiving facility about an impending or actual evacuation of residents; and
(iii) residents, legally authorized representatives, and other persons about an impending or actual evacuation;
(G) provides a method for persons to obtain resident information during an emergency situation; and
(H) includes procedures for the facility to maintain communication with:
(i) facility staff involved in an emergency situation;
(ii) a receiving facility, if applicable; and
(iii) the driver of a vehicle transporting residents, medications, records, food, water, equipment, or supplies during an evacuation.
(4) Sheltering Arrangements. A facility's plan must contain a section for sheltering arrangements that:
(A) includes procedures for implementing a decision to shelter-in-place that include:
(i) having access to medications, records, food, water, equipment and supplies; and
(ii) sheltering facility staff involved in responding to an emergency situation, and their family members, if necessary;
(B) includes procedures for notifying the DADS regional office for the area in which the facility is located by telephone immediately after a decision to shelter-in-place has been made; and
(C) includes procedures for accommodating evacuated residents, if the facility serves as a receiving facility for a facility that has evacuated.
(5) Evacuation. A facility's plan must contain a section for evacuation that:
(A) requires posting building evacuation routes prominently throughout the facility, except in small one-story buildings where all exits are obvious;
(B) includes procedures for implementing a decision to evacuate residents to a receiving facility in an emergency situation, if applicable;
(C) identifies evacuation destinations and routes and includes a map that shows the destinations and routes;
(D) includes a current copy of the agreement with a receiving facility, if the evacuation destinations identified in accordance with subparagraph (C) of this paragraph include a receiving facility that is not owned by the same entity as the facility;
(E) includes procedures for:
(i) ensuring that facility staff accompany evacuating residents;
(ii) ensuring that residents and facility staff present in the building have been evacuated;
(iii) accounting for residents after they have been evacuated;
(iv) accounting for residents absent from the facility at the time of the evacuation;
(v) releasing resident information in an emergency situation to promote continuity of a resident's care;
(vi) contacting the local EMC to find out if it is safe to return to the geographical area; and
(vii) determining if it is safe to re-enter and occupy the building after an evacuation;
(F) includes procedures for notifying the local EMC regarding an evacuation of the facility;
(G) includes procedures for notifying the DADS regional office for the area in which the facility is located by telephone immediately after a decision to evacuate is made; and
(H) includes procedures for notifying DADS regional office for the area in which the facility is located by telephone that residents have returned to the facility, within 48 hours of their return to the facility after an evacuation.
(6) Transportation. A facility's plan must contain a section for transportation that:
(A) provides for a sufficient number of facility-owned vehicles to evacuate all residents and for alternate transportation arrangements if the facility-owned vehicles are not available;
(B) includes procedures for safely transporting residents, facility staff involved in an evacuation and, if necessary, their family members, and the facility's and residents' pets during an evacuation; and
(C) includes procedures to safely transport and have timely access to oxygen, medications, records, food, water, equipment, and supplies needed during an evacuation.
(7) Health and Medical Needs. A facility's plan must contain a section for health and medical needs that:
(A) identifies all of the facility's residents with special medical needs; and
(B) ensures that the needs of those residents are met during an emergency situation.
(8) Resource Management. A facility's plan must contain a section for resource management that:
(A) includes procedures for maintaining accurate and detailed checklists of medications, records, food, water, equipment and supplies needed during an emergency situation;
(B) identifies facility staff who are assigned to locate and ensure the transportation of the items on the list described in subparagraph (A) of this paragraph during an emergency situation; and
(C) includes procedures to ensure that medications are secure and stored at the proper temperatures during an emergency situation.
(e) Training. A facility must:
(1) inform a facility staff member of the staff member's responsibilities under the plan within five working days after assuming job duties;
(2) re-train a facility staff member at least annually on the staff member's responsibilities under the plan and when the staff member's responsibilities under the plan change; and
(3) conduct unannounced, annual drills with facility staff for severe weather and other emergency situations identified by the facility as likely to occur, based on the results of the risk assessment required by subsection (c)(1) of this section.
(f) Fire Safety Plan. A facility's fire safety plan must:
(1) for a large facility, include the provisions described in the Operating Features section of NFPA 101, Chapter 18 (for new healthcare occupancies) and Chapter 19 (for existing healthcare occupancies) concerning:
(A) use of alarms;
(B) transmission of alarm to fire department;
(C) emergency phone call to fire department;
(D) response to alarms;
(E) isolation of fire;
(F) evacuation of immediate area;
(G) evacuation of smoke compartment;
(H) preparation of floors and building for evacuation; and
(I) extinguishment of fire;
(2) for a small facility, include the provisions described in the Operating Features section of NFPA 101, Chapter 32 (for new residential board and care occupancies) and Chapter 33 (for existing residential board and care occupancies) concerning:
(A) use of alarms;
(B) staff response in the event of a fire;
(C) fire protection procedures for a resident;
(D) actions to take if the primary escape route is blocked; and
(E) specification of an assembly point after a resident evacuates from the facility; and
(3) include procedures for:
(A) rehearsing the fire safety plan at least once per quarter on each work shift;
(B) evacuating residents as follows:
(i) for a small facility that has a prompt or slow evacuation capability, during every fire drill; or
(ii) for a large facility or facility with an impractical evacuation capability, during at least one fire drill each year on each work shift;
(C) completing the form titled "DADS Fire Drill Report" or a form containing, at a minimum, the information on the DADS form; and
(D)providing residents and facility staff with experience in egressing through all exits and means of escape.
(g) Reporting Fires. A facility must report a fire at the facility to DADS as follows:
(1) by calling 1-800-458-9858 within 24 hours after the fire; and
(2) by submitting a completed DADS form titled "Fire Report for Long Term Care Facilities" within 15 days after the fire.