Revision 17-1


§90.2 Scope

(a) The purpose of this chapter is to promote the public health, safety, and welfare by providing for the development, establishment and enforcement of standards for the provision of services to individuals residing in intermediate care facilities for persons with mental retardation or a related condition.

(b) The term "facility serving persons with mental retardation or related conditions," when used in this chapter, means an establishment or home that provides food, shelter, and treatment or services to four or more persons who are unrelated to the owner; is primarily for the diagnosis, treatment, or rehabilitation of persons with mental retardation or related conditions; and provides in a protected setting continuous evaluation, planning, 24-hour supervision, coordination and integration of health or rehabilitative services to help each resident function at the resident's greatest ability.

(1) A person receiving services in a facility serving persons with mental retardation or related conditions must have a diagnosis of mental retardation or a related condition as defined under paragraph (2) of this subsection. Facilities serving persons with other developmental disabilities as a primary diagnosis do not fall under the scope of these standards.

(2) The term "related condition" means a severe, chronic disability that meets all of the following conditions:

(A) a condition attributable to:

(i) cerebral palsy or epilepsy; or

(ii) any other condition including autism, but excluding mental illness, found to be closely related to mental retardation because this condition results in impairment of general intellectual functioning or adaptive behavior similar to that of persons with mental retardation and requires treatment or services similar to those required for these persons;

(B) a condition manifested before the person reaches age 22 years;

(C) a condition likely to continue indefinitely; and

(D) a condition that results in substantial functional limitations in three or more of the following areas of major life activity:

(i) self-care;

(ii) understanding and use of language;

(iii) learning;

(iv) mobility;

(v) self-direction; and

(vi) capacity for independent living.

(c) This chapter does not apply to an establishment that:

(1) provides training, habilitation, rehabilitation or education to individuals with mental retardation or a related condition; is operated under the jurisdiction of a state or federal agency, including the department, the Texas Rehabilitation Commission, the Texas Department of Mental Health and Mental Retardation, the Texas Commission for the Blind, the Texas Commission on Alcohol and Drug Abuse, the institution division of the Texas Department of Criminal Justice, or the Veterans' Administration; and, is certified through inspection or evaluation as meeting the standards established by the state or federal agency; or

(2) is conducted by or for the adherents of a well-recognized church or religious denomination for the purpose of providing facilities for the care or treatment of the sick who depend exclusively on prayer or spiritual means for healing, without the use of any drug or material remedy, if the establishment complies with safety, sanitary, and quarantine laws and rules.

§90.3 Definitions

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise. Individual subchapters may have definitions that are specific to the subchapter.

(1)Addition — The addition of floor space to a facility.

(2) Administrator — The administrator of a facility.

(3) Administration of medication Removing a unit or dose of medication from a previously dispensed, properly labeled container; verifying the medication with the medication order; giving the proper medication in the proper dosage to the proper resident at the proper time by the proper administration route; and recording the time of administration and dosage administered.

(4) Advance Practice Nurse — A person licensed to practice professional nursing in accordance with Texas Occupations Code, Chapter 301, and authorized by the Texas Board of Nursing to practice as an advanced practice nurse.

(5) Applicant — A person applying for a license under Texas Health and Safety Code, Chapter 252.

(6) APA — The Administrative Procedure Act, Texas Government Code, Chapter 2001.

(7) Attendant personnel — All persons who are responsible for direct and non-nursing services to residents of a facility. (Nonattendant personnel are all persons who are not responsible for direct personal services to residents.) Attendant personnel come within the categories of: administration, dietitians, medical records, activities, housekeeping, laundry, and maintenance.

(8) Behavioral emergency — A situation in which severely aggressive, destructive, violent, or self-injurious behavior exhibited by a resident:

(A) poses a substantial risk of imminent probable death of, or substantial bodily harm to, the resident or others;

(B) has not abated in response to attempted preventive de-escalatory or redirection techniques;

(C) is not addressed in a behavior therapy program; and

(D) does not occur during a medical or dental procedure.

(9) Care and treatment — Services required to maximize resident independence, personal choice, participation, health, self-care, psychosocial functioning and provide reasonable safety, all consistent with the preferences of the resident.

(10) 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.

(11) CMS —  Centers of Medicare and Medicaid Services. The federal agency that provides funding and oversight for the Medicare and Medicaid programs. CMS was formerly known as the Health Care Financing Administration (HCFA).

(12 ) Controlled substance A drug, substance, or immediate precursor as defined in the Texas Controlled Substance Act, Health and Safety Code, Chapter 481, as amended, or the Federal Controlled Substance Act of 1970, Public Law 91-513, as amended.

(13) Controlling person of an applicant, license holder, or facility A person who, acting alone or with others, has the ability to directly or indirectly influence or direct the management, expenditure of money, or policies of an applicant or license holder or of a facility owned by an applicant or license holder.

(A) The term includes:

(i) a spouse of the applicant or license holder;

(ii) an officer or director, if the applicant or license holder is a corporation;

(iii) a partner, if the applicant or license holder is a partnership;

(iv) a trustee or trust manager, if the applicant or license holder is a trust;

(v) a person that operates or contracts with others to operate the facility;

(vi) a person who, because of a personal, familial, or other relationship is in a position of actual control or authority over the facility, without regard to whether the person is formally named as an owner, manager, director, officer, provider, consultant, contractor, or employee of the facility; and

(vii) a person who would be a controlling person of an entity described in clauses (i) – (vii) of this subparagraph, if that entity were the applicant or license holder.

(B) The term does not include an employee, lender, secured creditor, or other person who does not exercise formal or actual influence or control over the operation of a facility.

(14) DADS — The Department of Aging and Disability Services.

(15) Dangerous drug — Any drug as defined in the Texas Dangerous Drug Act, Health and Safety Code, Chapter 483.

(16) Department — DADS.

(17) Designee — A state agency or entity with which DADS contracts to perform specific, identified duties related to the fulfillment of a responsibility prescribed by this chapter.

(18) Direct ownership interest – Ownership of equity in the capital, stock, or profits of, or a membership interest in, an applicant or license holder.

(19) Disclosable interest – Five percent or more direct or indirect ownership interest in an applicant or license holder.

(20) Drug (also referred to as medication) — A drug is:

(A) any substance recognized as a drug in the official United States Pharmacopeia, official Homeopathic Pharmacopeia of the United States, or official National Formulary, or any supplement to any of them;

(B) any substance intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man;

(C) any substance (other than food) intended to affect the structure or any function of the human body; and

(D) any substance intended for use as a component of any substance specified in subparagraphs (A)-(C) of this paragraph. It does not include devices or their components, parts, or accessories.

(21) Establishment — A place of business or a place where business is conducted which includes staff, fixtures, and property.

(22) Facility — A facility serving persons with an intellectual disability or related conditions licensed under this chapter as described in §90.2 of this chapter (relating to Scope) and required to be licensed under the Health and Safety Code, Chapter 252, or the entity that operates such a facility; or, in Subchapters C, D, and F of this chapter, a program provider that must comply with those subchapters in accordance with §9.212 of this title (relating to Non-licensed Providers Meeting Licensure Standards).

(23) Governmental unit — A state or a political subdivision of the state, including a county or municipality.

(24) Health care professional — A person licensed, certified, or otherwise authorized to administer health care, for profit or otherwise. The term includes a physician, licensed nurse, physician assistant, podiatrist, dentist, physical therapist, speech therapist, and occupational therapist..

(25) Hearing — A contested case hearing held in accordance with the Administrative Procedure Act, Government Code, Chapter 2001, and the formal hearing procedures in 1 TAC Chapter 357, Subchapter I.

(26) Immediate and serious threat — A situation in which there is a high probability that serious harm or injury to residents could occur at any time or has already occurred and may occur again if residents are not protected effectively from the harm or if the threat is not removed.

(27) Immediate jeopardy to health and safety — A situation in which immediate corrective action is necessary because the facility's noncompliance with one or more requirements has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident receiving care in the facility.

(28) Incident — An unusual or abnormal event or occurrence in, at, or affecting the facility or the residents of the facility.

(29) Indirect ownership interest Any ownership or membership interest in a person that has a direct ownership interest in an applicant or license holder.

(30) Inspection — Any on-site visit to or survey of a facility by DADS for the purpose of inspection of care, licensing, monitoring, complaint investigation, architectural review, or similar purpose.

(31) IPP — Individual program plan. A plan developed by the interdisciplinary team of a facility resident that identifies the resident's training, treatment, and habilitation needs, and describes programs and services to meet those needs.

(32) Large facility — Facilities with 17 or more resident beds.

(33) Legal guardian — A person who is appointed guardian under §693 of the Probate Code.

(34) 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.

(35) License — Approval from DADS to establish or operate a facility.

(36) License holder — A person who holds a license to operate a facility.

(37) Licensed nurse — A licensed vocational nurse, registered nurse, or advanced practice nurse.

(38) Life Safety Code — NFPA 101.

(39) Life safety features — Fire safety components required by the Life Safety Code such as building construction, fire alarm systems, smoke detection systems, interior finishes, sizes and thicknesses of doors, exits, emergency electrical systems, sprinkler systems, etc.

(40) Local authorities — A local health authority, fire marshal, building inspector, etc. who may be authorized by state law, county order, or municipal ordinance to perform certain inspections or certifications.

(41) Local health authority — The physician having local jurisdiction to administer state and local laws or ordinances relating to public health, as described in the Health & Safety Code, §§121.021 - 121.025.

(42) LVN — Licensed vocational nurse. A person licensed to practice vocational nursing in accordance with Texas Occupations Code, Chapter 301.

(43) 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 shall not include contracts solely for maintenance, laundry, or food services.

(44) Metered dose inhaler — A device that delivers a measured amount of medication as a mist that can be inhaled.

(45) NFPA — The National Fire Protection Association. If the term is immediately followed by a number, it is a reference to a publication of NFPA, as referenced in NFPA 101.

(46) NFPA 99 — NFPA 99, Health Care Facilities Code, 2012 Edition. A publication of the NFPA that provides minimum requirements for the installation, testing, maintenance, performance, and safe practices for health care facilities and for material, equipment, and appliances, used for patient care in health care facilities. The Centers for Medicare and Medicaid Services has incorporated NFPA 99, 2012 Edition Except Chapters 7, 8, 12, and 13, by reference as a Condition of Participation in the ICF/IID program for facilities that meet the definition of a health care occupancy. Copies of NFPA 99 may be obtained from NFPA, 1 Batterymarch Park, Quincy, MA 02169.

(47) NFPA 101 — NFPA 101, Life Safety Code, 2012 Edition. A publication of the NFPA that provides minimum requirements, with due regard to function, for the design, operation, and maintenance of buildings and structures for safety to life from fire. The Centers for Medicare and Medicaid Services has incorporated NFPA 101, 2012 Edition, by reference as a Condition of Participation in the ICF/IID program. Copies of NFPA 101 may be obtained from NFPA, 1 Batterymarch Park, Quincy, MA 02169.

(48) Oral medication — Medication administered by way or through the mouth and does not include sublingual or buccal.

(49) Person — An individual, firm, partnership, corporation, association, or joint stock company, and any legal successor of those entities.

(50) Personal 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.

(51) QIDP — Qualified intellectual disability professional. A person who has at least one year of experience working directly with persons with an intellectual disability or related conditions and is one of the following:

(A) a doctor of medicine or osteopathy;

(B) a registered nurse; or

(C) an individual who holds at least bachelor’s degree in one of the following areas:

(i) occupational therapy;

(ii) physical therapy;

(iii) social work

(iv) speech-language pathology or audiology;

(v) recreation or a specialty area such as art, dance, music or physical education;

(vi) dietetics; or

(vii) human services, such as sociology, special education, rehabilitation counseling, or psychology.

(52) Quality-of-care monitor — A registered nurse, pharmacist, or dietitian, employed by DADS, who is trained and experienced in long-term care regulations, standards of practice in long-term care, and evaluation of resident care and functions independently of DADS' Regulatory Services Division.

(53) Registered nurse — A person licensed to practice professional nursing in accordance with Texas Occupations Code, Chapter 301.

(54) Remodeling — The construction, removal, or relocation of walls and partitions, or construction of foundations, floors, or ceiling-roof assemblies, including expanding of safety systems (i.e. sprinkler systems, fire alarm systems), that will change the existing plan and use areas of the facility.

(55) Renovation — The restoration to a former better state by cleaning, repairing, or rebuilding, e.g., routine maintenance, repairs, equipment replacement, painting.

(56) Restraint — A manual method, or a physical or mechanical device, material, or equipment attached or adjacent to the resident's body that the resident cannot remove easily, that restricts freedom of movement or normal access to the resident's body. This term includes a personal hold.

(57) Seclusion — The involuntary separation of a resident away from other residents and the placement of the resident alone in an area from which the resident is prevented from leaving.

(58) Small facilities — Facilities with 16 or fewer resident beds.

(59) Specialized staff — Personnel with expertise in developmental disabilities.

(60) Standards — The minimum conditions, requirements, and criteria with which a facility will have to comply to be licensed under this chapter.

(61) Topical medication — Medication applied to the skin but does not include medication administered in the eyes.

(62) Universal precautions — The use of barrier precautions by facility personnel to prevent direct contact with blood or other body fluids that are visibly contaminated with blood.

(63) 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.

(64) Well-recognized church or religious denomination — An organization which has been granted a tax-exempt status as a religious association from the state or federal government.