Part I.
Texas Department of Human Services
Chapter 50.
Day Activity and Health Services
The Texas Department of Human Services (DHS) proposes the repeal of
§§50.50.1-50.5, 50.102, 50.201, 50.202, 50.301, 50.302, 50.401-50.405,
50.407-50.410, 50.501, 50.601, 50.701, 50.703, 50.704, 50.801, and 50.6901-
50.6907, concerning definitions, general requirements for participation, availability
of services and emergency information, service description, method of payment,
denial of contract, eligibility requirements, medical criteria, nurse requirements,
housekeeper/driver, requirement to service eligible clients, written referrals,
facility-initiated referrals, correction to facility documentation, initiation
of services, notifications, changes in client's condition, suspension of services,
renewal of services, facility not entitled to payment, records, documentation
errors, administrative errors, financial errors, sanctions, introduction,
cost reporting procedures, reimbursement determination, allowable cost information,
list of allowable costs, unallowable costs, and reimbursement methodology
for day activity and health services: 1997 and subsequent cost reports, in
its Day Activity and Health Services (DAHS) chapter. The purpose of the repeals
is to delete the DAHS chapter, so DAHS requirements can be included in Chapter
98, Adult Day Care Facilities. Adult day care facilities must be licensed
if they choose to provide DAHS, and must follow DAHS rules. Also in this issue
of the
Texas Register
, DHS is proposing changes
to Chapter 98, Adult Day Care Facilities, to add DAHS information.
Eric M. Bost, commissioner, has determined that for the first five-year
period the proposed sections will be in effect there will be no fiscal implications
for state or local government as a result of enforcing or administering the
sections.
Mr. Bost also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of enforcing
the sections will be to provide easier access to the rules for providers who
must meet DAHS and adult day care facility requirements. There will be no
effect on providers who are already in business. New providers on or after
May 1, 1999, must ensure that Life Safety Code and construction requirements
are met. Providers and potential providers are expected to meet all rule guidelines
or they will not receive a license. There is no anticipated economic cost
to persons who are required to comply with the proposed sections.
Questions about the content of the proposal may be directed to Maxcine
Tomlinson at (512) 438-3169 in DHS's Long Term Care Policy Section. Written
comments on the proposal may be submitted to Supervisor, Rules and Handbooks
Unit-069, Texas Department of Human Services E-205, P.O. Box 149030, Austin,
Texas 78714-9030, within 30 days of publication in the
Texas Register
.
Subchapter A. Program Overview
40 TAC §§50.1-50.5
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Department of Human Services or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the Human Resources
Code, Title 2, Chapters 22 and 32, which provides the department with the
authority to administer public and medical assistance programs and under Texas
Government Code §531.021, which provides the Health and Human Services
Commission with the authority to administer federal medical assistance funds.
The repeals implement §§22.001-22.030 and 32.001-32.042 of the
Human Resources Code.
§50.1. Definitions.
§50.2. General Requirements for Participation.
§50.3. Availability of Services and Emergency Information.
§50.4. Service Description.
§50.5. Method of Payment.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 14, 1999.
TRD-9900216
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: May 1, 1999
For further information, please call: (512) 438-3765
40 TAC §50.102
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department of Human Services or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Human Resources
Code, Title 2, Chapters 22 and 32, which provides the department with the
authority to administer public and medical assistance programs and under Texas
Government Code §531.021, which provides the Health and Human Services
Commission with the authority to administer federal medical assistance funds.
The repeal implements §§22.001-22.030 and 32.001-32.042 of the
Human Resources Code.
§50.102. Denial of Contract.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 14, 1999.
TRD-9900217
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: May 1, 1999
For further information, please call: (512) 438-3765
40 TAC §50.201, §50.202
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Department of Human Services or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the Human Resources
Code, Title 2, Chapters 22 and 32, which provides the department with the
authority to administer public and medical assistance programs and under Texas
Government Code §531.021, which provides the Health and Human Services
Commission with the authority to administer federal medical assistance funds.
The repeals implement §§22.001-22.030 and 32.001-32.042 of the
Human Resources Code.
§50.201. Eligibility Requirements.
§50.202. Medical Criteria.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 14, 1999.
TRD-9900218
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: May 1, 1999
For further information, please call: (512) 438-3765
40 TAC §50.301, §50.302
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Department of Human Services or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the Human Resources
Code, Title 2, Chapters 22 and 32, which provides the department with the
authority to administer public and medical assistance programs and under Texas
Government Code §531.021, which provides the Health and Human Services
Commission with the authority to administer federal medical assistance funds.
The repeals implement §§22.001-22.030 and 32.001-32.042 of the
Human Resources Code.
§50.301. Nurse Requirements.
§50.302. Housekeeper/driver.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 14, 1999.
TRD-9900219
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: May 1, 1999
For further information, please call: (512) 438-3765
40 TAC §§50.401-50.405, 50.407-50.410
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Department of Human Services or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the Human Resources
Code, Title 2, Chapters 22 and 32, which provides the department with the
authority to administer public and medical assistance programs and under Texas
Government Code §531.021, which provides the Health and Human Services
Commission with the authority to administer federal medical assistance funds.
The repeals implement §§22.001-22.030 and 32.001-32.042 of the
Human Resources Code.
§50.401. Requirement to Service Eligible Clients.
§50.402. Written Referrals.
§50.403. Facility-Initiated Referrals.
§50.404. Correction to Facility Documentation.
§50.405. Initiation of Services.
§50.407. Notifications.
§50.408. Changes in Client's Condition.
§50.409. Suspension of Services.
§50.410. Renewal of Services.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 14, 1999.
TRD-9900220
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: May 1, 1999
For further information, please call: (512) 438-3765
40 TAC §50.501
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department of Human Services or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Human Resources
Code, Title 2, Chapters 22 and 32, which provides the department with the
authority to administer public and medical assistance programs and under Texas
Government Code §531.021, which provides the Health and Human Services
Commission with the authority to administer federal medical assistance funds.
The repeal implements §§22.001-22.030 and 32.001-32.042 of the
Human Resources Code.
§50.501. Facility not Entitled to Payment.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 14, 1999.
TRD-9900221
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: May 1, 1999
For further information, please call: (512) 438-3765
40 TAC §50.601
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department of Human Services or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Human Resources
Code, Title 2, Chapters 22 and 32, which provides the department with the
authority to administer public and medical assistance programs and under Texas
Government Code §531.021, which provides the Health and Human Services
Commission with the authority to administer federal medical assistance funds.
The repeal implements §§22.001-22.030 and 32.001-32.042 of the
Human Resources Code.
§50.601. Records.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 14, 1999.
TRD-9900222
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: May 1, 1999
For further information, please call: (512) 438-3765
40 TAC §§50.701, 50.703, 50.704
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Department of Human Services or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the Human Resources
Code, Title 2, Chapters 22 and 32, which provides the department with the
authority to administer public and medical assistance programs and under Texas
Government Code §531.021, which provides the Health and Human Services
Commission with the authority to administer federal medical assistance funds.
The repeals implement §§22.001-22.030 and 32.001-32.042 of the
Human Resources Code.
§50.701. Documentation Errors.
§50.703. Administrative Errors.
§50.704. Financial Errors.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 14, 1999.
TRD-9900223
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: May 1, 1999
For further information, please call: (512) 438-3765
40 TAC §50.801
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department of Human Services or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Human Resources
Code, Title 2, Chapters 22 and 32, which provides the department with the
authority to administer public and medical assistance programs and under Texas
Government Code §531.021, which provides the Health and Human Services
Commission with the authority to administer federal medical assistance funds.
The repeal implements §§22.001-22.030 and 32.001-32.042 of the
Human Resources Code.
§50.801. Sanctions.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 14, 1999.
TRD-9900224
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: May 1, 1999
For further information, please call: (512) 438-3765
40 TAC §§50.6901-50.6907
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Department of Human Services or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the Human Resources
Code, Title 2, Chapters 22 and 32, which provides the department with the
authority to administer public and medical assistance programs and under Texas
Government Code §531.021, which provides the Health and Human Services
Commission with the authority to administer federal medical assistance funds.
The repeals implement §§22.001-22.030 and 32.001-32.042 of the
Human Resources Code.
§50.6901. Introduction.
§50.6902. Cost Reporting Procedures.
§50.6903. Reimbursement Determination.
§50.6904. Allowable Cost Information.
§50.6905. List of Allowable Costs.
§50.6906. Unallowable Costs.
§50.6907. Reimbursement Methodology for Day Activity and Health Services: 1997 and Subsequent Cost Reports.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 14, 1999.
TRD-9900225
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: May 1, 1999
For further information, please call: (512) 438-3765
The Texas Department of Human Services (DHS) proposes amendments to
§§98.1, 98.2, 98.11-98.13, 98.15-98.19, 98.81, 98.82, and 98.102-
98.104, concerning purpose, definitions, criteria for licensing, building
approval, applicant disclosure requirements, renewal procedures and qualifications,
change of ownership, change of staff, time periods for processing licensing
applications, criteria for denying a license or renewal of a license, procedural
requirements, determinations and actions pursuant to inspections, nonemergency
suspension, revocation, and emergency suspension and closing order; proposes
the repeal of §§98.20, 98.41-98.44, 98.61, 98.105, 98.122, and 98.123,
concerning license fees, general requirements, program requirements, safety,
sanitation, construction and initial survey of completed construction, informal
reconsideration, required postings, and procedures for inspection of public
records; and proposes new §§98.20, 98.21, 98.41-98.43, 98.61, 98.62,
98.83, 98.84, 98.91-98.95, 98.201-98.212, and 98.6901-98.6907, concerning
informal reconsideration, license fees, construction and initial survey of
completed construction, safety, sanitation, general requirements, program
requirements, referrals to the attorney general, procedures for inspection
of public records, definitions of abuse, neglect, and exploitation, abuse,
neglect, or exploitation reportable to the Texas Department of Human Services
by facilities, complaint investigation, investigations of complaints, confidentiality,
eligibility requirements for participation, program overview, written referrals
for services, facility-initiated referrals, initiation of services, program
requirements, suspension of day activity and health services, notifications,
record maintenance, administrative errors and corrections, billing and payment,
sanctions, introduction, cost reporting procedures, reimbursement determination,
allowable cost information, list of allowable costs, unallowable costs, and
reimbursement methodology for day activity and health services: 1997 and subsequent
cost reports, in its Adult Day Care Facilities chapter. The purpose of the
proposal is to combine Chapter 50, Day Activity and Health Services (DAHS)
requirements into Chapter 98, Adult Day Care Facilities. Adult day care facilities
must be licensed if they choose to provide DAHS, and must follow DAHS rules.
DHS also has clarified the Life Safety Code and licensure application procedures,
expanded the rules on the reporting of abuse, neglect, and exploitation and
complaint incidents to more closely reflect state law, deleted the use of
an unapproved substitute form as an administrative error, and changed the
exception percentage for a DAHS administrative error from 14% to 12%. Also
in this issue of the
Texas Register
, DHS is
proposing the repeal of Chapter 50, Day Activity and Health Services.
Eric M. Bost, commissioner, has determined that for the first five- year
period the proposed sections will be in effect there will be no fiscal implications
for state or local government as a result of enforcing or administering the
sections.
Mr. Bost also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of enforcing
the sections will be to provide easier access to rules for providers who must
meet DAHS and adult day care facility requirements. There will be no effect
on providers that are already in business. New providers on or after May 1,
1999, must ensure that Life Safety Code and construction requirements are
met. Providers and potential providers are expected to meet all rule guidelines
or they will not receive a license. There is no anticipated economic cost
to persons who are required to comply with the proposed sections.
Questions about the content of the proposal may be directed to Maxcine
Tomlinson at (512) 438-3169 in DHS's Long Term Care Policy Section. Written
comments on the proposal may be submitted to Supervisor, Rules and Handbooks
Unit-069, Texas Department of Human Services E-205, P.O. Box 149030, Austin,
Texas 78714-9030, within 30 days of publication in the
Texas Register
.
Subchapter A. Introduction
40 TAC §98.1, §98.2
The amendments are proposed under the Human Resources Code,
Chapter 103, which provides the department with the authority to license adult
day care facilities, and under the Human Resources Code, Title 2, Chapters
22 and 32, which provides the department with the authority to administer
public and medical assistance programs and under Texas Government Code §531.021,
which provides the Health and Human Services Commission with the authority
to administer federal medical assistance funds.
The amendments implement §§22.001-22.030, 32.001-32.042, and
103.001-103.011 of the Human Resources Code.
§98.1.Purpose.
The purpose of this chapter is to implement the provisions of the Human
Resources Code, Chapter 103, by providing licensing procedures, establishing
standards for quality adult day care, and a safe and sanitary environment
for clients of adult day care facilities
; and to implement 45 Code of
Federal Regulations (CFR), Part 96, Title XX of the Social Security Act, and
42 CFR §440.130 (d), Title XIX of the Social Security Act to provide
for the care, treatment, health, safety, and welfare of Medicaid clients'
day activity and health services in adult day care facilities. Day Activity
and Health Services must comply with the following additional requirements
found in Chapter 20 of this title (relating to Cost Determination Process),
Chapter 12, Subchapter A of this title (relating to Child and Adult Care Food
Program), Chapter 48 of this title (relating to Community Care for the Aged
and Disabled), Chapter 49 of this title (relating to Contracting for Community
Care Services), Chapter 69 of this title (relating to Contracted Services),
and Chapter 79 of this title (relating to Legal Services)
.
§98.2.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise.
(1)
Abuse--The negligent or willful infliction
of injury, unreasonable confinement, intimidation, or cruel punishment with
resulting physical or emotional harm or pain to an elderly or disabled person
by the person's caretaker, family member, or other individual who has an ongoing
relationship with the person, or sexual abuse of an elderly or disabled person,
including any involuntary or nonconsensual sexual conduct that would constitute
an offense under §21.08, Penal Code (indecent exposure) or Chapter 22,
Penal Code (assaultive offenses) committed by the person's caretaker, family
member, or other individual who has an ongoing relationship with the person.
(2)
Adult--A person 18 years or older,
or an emancipated minor.
(3)
Adult day care facility--A facility that
provides services under an Adult Day Care Program on a daily or regular basis,
but not overnight, to four or more elderly or handicapped persons who are
not related by blood, marriage, or adoption to the owner of the facility.
(4)
Adult day care program--A structured, comprehensive
program that is designed to meet the needs of adults with functional impairments
through an individual plan of care by providing health, social, and related
support services in a protective setting.
(5)
Affiliate--With respect to a:
(A)
partnership, each partner thereof;
(B)
corporation, each officer, director, principal stockholder,
and subsidiary; and each person with a disclosable interest;
(C)
natural person which includes each:
(i)
person's spouse;
(ii)
partnership and each partner thereof of which said person
or any affiliate of said person is a partner; and
(iii)
corporation in which said person is an officer, director,
principal stockholder, or person with a disclosable interest.
(6)
Ambulatory--Mobility not relying
on walker, crutch, cane, other physical object, or use of wheelchair.
(7)
Applicant--A person required to be licensed
under Human Resources Code, Chapter 103.
(8)
Authorization--A Texas Department
of Human Services' (DHS's) employee decision, before services begin and before
payment can be made, that Day Activity and Health Services (DAHS) may be provided
to a client.
(9)
Caseworker--A DHS employee who is
responsible for DAHS case management activities. Activities include, but are
not limited to, eligibility determination, client registration, assessment
and reassessment of client's need, service plan development, and intercession
on the client's behalf.
(10)
Client--A person who receives the services
of an adult day care program
including a Day Activities and Health Services
program
.
(11)
Contract manager--A DHS employee,
designated as the primary contact point between the facility and DHS, who
is responsible for the overall management of the DAHS contract.
(12)
Day Activity Health Services (DAHS)--Day
activity and health services provided under a contract with DHS to clients
residing in the community through rehabilitative nursing and social services.
(13)
Days--Calendar days, not workdays,
unless otherwise noted in the text.
(14)
Department--Texas Department of Human
Services.
(15)
DHS--Texas Department of Human Services.
(16)
Dietitian Consultant--A registered dietitian;
a person licensed by the Texas State Board of Examiners of Dietitians; or
a person with a baccalaureate degree with major studies in food and nutrition,
dietetics, or food service management.
(17)
Direct service staff--Employees
of a facility, including the director, licensed nurse, activities director,
and attendants. An attendant is a person who may provide direct services to
clients of the facility such as a facility bus driver, food service worker,
aide, janitor, porter, maid, and laundry worker.
(18)
Director--The person responsible for the
overall operation of a facility.
(19)
Elderly person--A person 65 years of age
or older.
(20)
Existing building--In these standards,
except where defined otherwise, a building either occupied as an adult day
care facility at the time of initial inspection by the department or converted
to occupancy as an adult day care facility.
(21)
Exploitation--The illegal or improper
act or process of a caretaker, family member, or other individual, who has
an ongoing relationship with the elderly person or person with a disability,
using the resources of an elderly person or person with a disability for monetary
or personal benefit, profit, or gain without the informed consent of the elderly
person or person with a disability.
(22)
Facility--
See definition for adult
day care facility.
[
(23)
Fraud--A deliberate misrepresentation
or intentional concealment of information to receive or to be reimbursed for
service delivery to which the individual is not entitled.
(24)
Functional impairment--Condition that
requires assistance with one or more personal care services including, but
not limited to, bathing, dressing, preparing meals, feeding, grooming, taking
self-administered medication, toileting, and ambulation.
(25)
Handicapped person--As used in this chapter,
the term "person with disabilities" is used in place of the term "handicapped
person" as that term is used in the Human Resources Code, Chapter 103.
(26)
Health assessment--A plan of care
that identifies the specific needs of the client and how those needs will
be addressed by the facility.
(27)
Health services--Includes personal care,
nursing, or therapy services. Personal care services include services listed
under the definition of functional impairment in this section. Nursing services
may include the administration of medications; physician- ordered treatments,
such as dressing changes; and monitoring the health condition of the individual.
Therapy services may include physical, occupational, or speech therapy.
(28)
Human services--All of the following major
areas constitute human services:
(A)
personal social services (day care, counselling, in-home
care, protective services);
(B)
health services (home health, family planning, preventive
health programs, nursing home, hospice);
(C)
education services (all levels of school, Head Start, vocational
programs);
(D)
housing and urban environment services (Section 8, public
housing);
(E)
income transfer services (
Temporary Assistance for
Needy Families
[
(F)
justice and public safety services (parole and probation,
rehabilitation).
(29)
Human service program--An intentional,
organized, ongoing effort designed to provide good to others. The characteristics
of human service programs are that they are:
(A)
dependent on public resources and are planned and provided
by the community;
(B)
directed toward meeting human needs arising from day-to-day
socialization
, health care,
and developmental experiences;
(C)
used to aid, rehabilitate, or treat those in difficulty
or need.
(30)
Income-eligible--An adult who
is either a supplemental security income (SSI) or Temporary Assistance for
Needy Families (TANF) client, but who has an income that is equal to or less
than the eligibility level established by DHS for DAHS services.
(31)
Individual plan of care--A written plan
which documents functional impairment and the health, social, and related
support needed by an individual. The plan is developed jointly with and approved
by the individual and/or responsible party.
(32)
Licensed vocational nurse (LVN)--A
person currently licensed by the Board of Vocational Nurse Examiners of Texas
who works under the supervision of a registered nurse (RN) or a physician.
(33)
Long-term care facility--A facility that
provides care and treatment or personal care services to four or more unrelated
persons, including a nursing facility, a personal care facility, and a facility
serving persons with mental retardation and related conditions.
(34)
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
client
[
(35)
Manager--A person having a contractual
relationship to provide management services to a facility.
(36)
Medicaid-eligible--An individual
eligible for Medicaid as an SSI or a TANF client, or eligible for medical
assistance only while living in the community, or eligible through a federally-approved
waiver.
(37)
Medically-related program--A human services
program under the human services- health services category in the definition
of human services in this section.
(38)
Neglect - The failure to provide
for oneself the goods or services that are necessary to avoid physical harm,
mental anguish, or mental illness; or the failure of a caregiver to provide
these goods or services.
(39)
Nurse--A registered nurse (RN) or a licensed
vocational nurse (LVN) licensed in the state of Texas.
(40)
Nursing services--Services provided
by licensed nursing personnel which include, but are not limited to, observation;
promotion and maintenance of health; prevention of illness and disability;
management of health care during acute and chronic phases of illness; guidance
and counseling of individuals and families; and referral to physicians, other
health care providers, and community resources when appropriate.
(41)
Person--An individual, corporation, or
association.
(42)
Person with a disclosable interest--A
person with a disclosable interest is any person who owns five percent interest
in any corporation, partnership, or other business entity that is required
to be licensed under Human Resources Code, Chapter 103. A person with a disclosable
interest does not include a bank, savings and loan, savings bank, trust company,
building and loan association, credit union, individual loan and thrift company,
investment banking firm, or insurance company unless such entity participates
in the management of the facility.
(43)
Person with disabilities--A person whose
functioning is sufficiently impaired to require frequent medical attention,
counseling, physical therapy, therapeutic or corrective equipment, or another
person's attendance and supervision.
(44)
Physician's orders--An order for
DAHS that is signed and dated by a medical doctor (MD) or doctor of osteopathy
(DO) who is licensed to practice medicine in the state of Texas. The physician's
order must include the physician's license number.
(45)
Plan of care--See definition of
health assessment.
(46)
Protective setting--A setting in which
an individual's safety is ensured by the physical environment and/or personnel
(staff).
(47)
Registered nurse (RN)--A
person currently registered by the Texas Board of Nurse Examiners to practice
professional nursing.
(48)
Related support services--Provision of
services to the client, family member, or other caregivers that may improve
their ability to assist with an individual's independence and functioning.
Services include, but are not limited to, information and referral, transportation,
teaching caregiver skills, respite, counseling, instruction and training,
and support groups.
(49)
Responsible party--Anyone the client
designates as his representative.
(50)
Safety--Action taken to protect from injury
or loss of life due to such conditions as fire, electrical hazard, unsafe
building or site conditions, and the presence of hazardous materials.
(51)
Sanitation--Action taken to protect from
illness, the transmission of disease, or loss of life due to unclean surroundings,
the presence of disease transmitting insects or rodents, unhealthful conditions
or practices in the preparation of food and beverage, or the care of personal
belongings.
(52)
Semiambulatory--Mobility relying on walker,
crutch, cane, other physical object, or independent use of wheelchair.
(53)
Social activities--Therapeutic, educational,
cultural enrichment, recreational, and social activities on site or in the
community in a planned program to meet the social needs and interests of the
individual.
(54)
Working with people--Responsible for the
delivery of services to individuals either directly or indirectly. Experience
as a manager would meet this definition; however, an administrative support
position such as a bookkeeper does not. Experience does not have to be in
a paid capacity. A person serving as a minister receiving an expense allowance
in money plus free housing qualifies for experience in working with people.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 14, 1999.
TRD-9900226
Paul Leche
General Counsel
Texas Department of Human Services
Proposed date of adoption: May 1, 1999
For further information, please call: (512) 438-3765
40 TAC §§98.11-98.13, 98.15-98.21
The amendments and new sections are proposed under the Human
Resources Code, Chapter 103, which provides the department with the authority
to license adult day care facilities, and under the Human Resources Code,
Title 2, Chapters 22 and 32, which provides the department with the authority
to administer public and medical assistance programs and under Texas Government
Code §531.021, which provides the Health and Human Services Commission
with the authority to administer federal medical assistance funds.
The amendments and new sections implement §§22.001-22.030, 32.001-32.042,
and 103.001-103.011 of the Human Resources Code.
§98.11.Criteria for Licensing.
(a)
A person [
(b)
An applicant for a license must submit a complete application
form and license fee to the Texas Department of Human Services
(DHS)
[
(c)
In respect to all licenses in effect after
December 31, 1999, all services provided under licensure by DHS are required,
as a condition of licensure, not to constitute a threat to the health and
safety of residents as a result of computer software, firmware, or computer
logic unable to recognize different centuries or more than one century on
or after January 1, 2000.
(d)
[
(1)
the applicant, person with a disclosable interest, affiliate,
and manager have not been convicted of a felony or crime involving moral turpitude
in
Texas
[
(2)
the facility meets the standards of the Life Safety
Code
, NFPA 101, 1988
;
(3)
the facility meets the construction standards in Subchapter
C
[
(4)
the facility meets the standards for operation based
upon an on- site survey.
[(d)
The applicant must provide all information
requested on the application form and submit the appropriate fees as a prerequisite
for the department to conduct a feasibility inspection or plan review, as
requested or required.]
(e)
DHS may deny an application that remains
incomplete after 10 days.
(f)
[
(g)
[
§98.12.Building Approval.
(a)
(No change.)
(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 will 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 will also provide
a copy of a dated written notice of the approval for occupancy by the local
fire marshal or local building code authority, if applicable. The local health
authority may provide recommendations to
DHS's Long Term Care-Regulatory
(LTC-R) Licensing Section
[
(2)
Increase in capacity. The license holder must request
an application for increase in capacity from
DHS's LTC-R Licensing Section
[
(3)
Change of ownership. The applicant for a change of
ownership license will provide to DHS a copy of a letter notifying the local
health authority of the request for a change of ownership. The local health
authority may provide recommendations to DHS regarding the status of compliance
with local codes, ordinances, or regulations. [
(4)
Renewal. DHS sends the local health authority a copy
of the DHS 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. [
[(5)
Inspection/plan review. Any existing
building being considered for licensure must either submit a plan for review
and approval or request a feasibility inspection to be performed by a representative
of DHS to determine construction or renovation requirements. The fees for
inspection and/or plan review must be in accordance with §98.21 of this
title (relating to Fees for Plan Reviews, Construction Inspection Services,
and Feasibility Inspection Services).]
§98.13.Applicant Disclosure Requirements.
(a)-(b)
(No change.)
(c)
General information required. [
[(1)
the name of the applicant and, if an
individual, whether the applicant has attained the age of 18 years;]
[(2)
the type of facility;]
[(3)
the location of the facility;]
[(4)
the name of the director;]
(1)
[
(2)
[
(3)
[
(4)
At the request of DHS, an applicant
or license holder must provide to DHS any additional background information
within 30 days of DHS's request.
[(d)
Disclosure requirements. Applicants must
disclose the following information for the two-year period preceding the application
date, concerning the applicant, persons with a disclosable interest, officers,
affiliates, and manager, without regard to whether the data required relates
to current or previous events:]
[(1)
denial or revocation of a license to operate a health
care, long term care, personal care, or day care facility in any state;]
[(2)
federal or state Medicaid or Medicare sanctions or
penalties;]
[(3)
state or federal criminal convictions for any offense
that provides a penalty of incarceration;]
[(4)
unsatisfied final judgments;]
[(5)
operation of a facility that has been decertified
in any state under Medicare or Medicaid;]
[(6)
debarment, exclusion, or contract cancellation in
any state from Medicare or Medicaid;]
[
eviction involving any property or space
used as a facility in any state;]
[(8)
orders from any court restraining or enjoining the
applicant, manager, or any person with a disclosable interest from operating
a health care, long-term care, personal care, or day care facility in any
state; and]
[(9)
any of the adverse actions listed in this subsection
taken against the applicant by all relevant licensing and certification agencies
in all other states in which the applicant owns, operates, or manages long-term
care, personal care, or adult day care facilities. The applicant must obtain
letters or other documentation from those agencies attesting to the adverse
actions or the absence of any such adverse actions.]
[(e)
Required ownership and management information
for the past year.]
[(1)
Each applicant for a license to operate a facility must
disclose to DHS the name and business address of each:]
[(A)
limited partner and general partner if the applicant is
a partnership;]
[(B)
director and officer if the applicant is a corporation;
and]
[(C)
person having a beneficial ownership interest of five
percent or more in the applicant corporation, partnership, or other business
entity.]
[(2)
If any person described in this section has
served or currently serves as an administrator, general partner, limited partner,
trustee or trust applicant, sole proprietor, or any applicant or licensee
who is a sole proprietorship, executor, or corporate officer or director of
or has held a beneficial ownership interest of five percent or more in any
other health care, long-term care, personal care, or adult day care facility,
the applicant must disclose the relationship to DHS, including the name and
current or last address of the facility and the date such relationship commenced
and, if applicable, the date it was terminated.]
[(3)
If the applicant or licensee is a subsidiary of another
organization, the information shall include the names and addresses of the
parent organization and the names and addresses of the officers and directors
of the parent organization.]
[(4)
If the facility is operated by, or proposed to be
operated under, a management contract, the names and addresses of any person
or organization, or both, having an ownership or discloseable interest of
five percent or more in the management company shall be disclosed to the department.]
[(5)
The information required by this section must be
provided to DHS upon initial application for licensure, and changes in the
information must be provided to DHS on an annual basis, except that a licensee
must notify DHS within 30 days of any change of the facility's administrator
or management services.]
(d)
[
§98.15.Renewal Procedures and Qualifications.
(a)
(No change.)
(b)
Each license holder must file an application for renewal
with the Texas Department of Human Services (DHS) at least 45 days prior to
the expiration of the current license. DHS considers that an individual has
filed a timely and sufficient application for the renewal of a license, if
the license holder:
(1)
(No change.)
(2)
submits an incomplete application to DHS with a letter
explaining the circumstances which prevented the inclusion of the missing
information, and DHS receives the incomplete application and letter at least
45 days before the current license expires.
The missing information must
be provided and the application completed within 30 days of the current license
expiration date or the application may be denied for failure to provide the
required information.
(c)
(No change.)
(d)
Failure to file a timely and sufficient
application will result in the expiration of the license on the expiration
date listed on the license.
(e)
[
(f)
[
§98.16.Change of Ownership.
(a)
During the license term, a license holder may not transfer
the license as a part of the sale of the facility. Prior to the sale of the
facility, the license holder must notify the Texas Department of Human Services
(DHS) that a change of ownership will be occurring.
A change of ownership
is a change:
(1)
of 50% or more in the ownership of the
business organization or sole proprietorship that is licensed to operate the
facility; or
(2)
in the federal tax payer identification
number.
(b)-(c)
(No change.)
§98.17.Change of Staff.
(a)
A new facility director must submit qualifying documentation
(see
§98.62
[
(b)
A new facility activities director must submit qualifying
documentation (see
§98.62
[
(c)
If the facility does not have a director
or activities director within 30 days of vacancy, the facility will submit
a letter to the LTC-R Regional Office requesting an extension. The LTC-R Regional
Office will notify the facility in writing of the length of extension.
§98.18.Time Periods for Processing Licensing Applications.
(a)-(d)
(No change.)
(e)
Except as provided in the following sentence, a
[
(f)
[
[
In the event the application is not processed
in the time periods as stated in this section, the applicant has a right to
request of the program director full reimbursement of all filing fees paid
in that particular application process. If the program director does not agree
that the established periods have been violated or finds that good cause existed
for exceeding the established periods, the request will be denied.
(g)
[
(1)
[
(2)
[
(3)
[
(h)
[
§98.19.Criteria for Denying a License or Renewal of a License.
(a)
The Texas Department of Human Services (DHS) may deny an
initial license or refuse to renew a license if an applicant, manager, or
affiliate:
(1)
substantially fails to comply with the requirements described
in
§§98.61-98.62
[
(A)-(B)
(No change.)
(2)-(4)
(No change.)
(5)
fails to pay the following fees, taxes, and assessments
when due:
(A)
licensing fees as described in
§98.21
[
(B)
(No change.)
(6)
(No change.)
(b)-(e)
(No change.)
(f)
If DHS denies a license or refuses to issue a renewal of
a license, the applicant or licensee may request an administrative hearing.
Administrative hearings must be held under the provisions of the Administrative
Procedures Act (APA), Title 10 of the Texas Government Code, §§2001.051
et seq
.
, and DHS's formal hearing rules in
Chapter 79 of this
title, Subchapter Q (relating to Formal Appeals)
[
§98.20.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 10 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 and will not be conducted as an adversary hearing. DHS
will give the license holder a written affirmation or reversal of the proposed
action.
§98.21.License Fees.
The license fee is $25. The fee must be paid with each initial application,
change of ownership application, and annually with each application for renewal
of the license. Payment of fees must be by check or money order made payable
to the Texas Department of Human Services.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
January 14, 1999.
TRD-9900227
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: May 1, 1999
For further information, please call: (512) 438-3765
40 TAC §98.20
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department of Human Services or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Human Resources
Code, Chapter 103, which provides the department with the authority to license
adult day care facilities.
The repeal implements the Human Resources Code, Chapter 103, §§103.001-103.011.
§98.20.License Fees.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 14, 1999.
TRD-9900228
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: May 1, 1999
For further information, please call: (512) 438-3765
40 TAC §§98.41-98.44
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Department of Human Services or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the Human Resources
Code, Chapter 103, which provides the department with the authority to license
adult day care facilities.
The repeals implement the Human Resources Code, Chapter 103, §§103.001-103.011.
§98.41.General Requirements.
§98.42.Program Requirements.
§98.43.Safety.
§98.44.Sanitation.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 14, 1999.
TRD-9900229
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: May 1, 1999
For further information, please call: (512) 438-3765
40 TAC §§98.41-98.43
The new sections are proposed under the Human Resources Code,
Chapter 103, which provides the department with the authority to license adult
day care facilities, and under the Human Resources Code, Title 2, Chapters
22 and 32, which provides the department with the authority to administer
public and medical assistance programs and under Texas Government Code §531.021,
which provides the Health and Human Services Commission with the authority
to administer federal medical assistance funds.
The new sections implement §§22.001-22.030, 32.001-32.042, and
103.001-103.011 of the Human Resources Code.
§98.41.Construction and Initial Survey of Completed Construction.
(a)
Construction phase.
(1)
The Texas Department of Human Services (DHS) Licensing
Section in Austin, Texas, must be notified in writing of construction start.
(2)
All construction must be done in accordance with minimum
licensing requirements. It is the sponsor's responsibility to employ qualified
personnel to prepare the contract documents for construction of a new facility
or remodeling of an existing facility. Contract documents for additions and
remodeling and for the construction of an entirely new facility must be prepared
by an architect licensed by the Texas State Board of Architectural Examiners.
Drawings must bear the seal of the architect. Certain parts of final plans,
designs, and specifications must bear the seal of a registered professional
engineer approved by the State Board of Registration for Professional Engineers
to operate in Texas. These certain parts include sheets and sections covering
structural, electrical, mechanical, and sanitary engineering.
(A)
Remodeling is the construction, removal, or relocation
of walls and partitions; the construction of foundations, floors, or ceiling-
roof assemblies; the expanding or altering of safety systems (including, but
not limited to, sprinkler, fire alarm, and emergency systems); or the conversion
of space in a facility to a different use.
(B)
General maintenance and repairs of existing material and
equipment, repainting, applications of new floor, wall, or ceiling finishes,
or similar projects are not included as remodeling, unless as a part of new
construction. DHS must be provided flame spread documentation for new materials
applied as finishes.
(b)
Contract documents.
(1)
Site plan documents must include grade contours; streets
with names; north arrow; fire hydrants; fire lanes; utilities, public or private;
fences; unusual site conditions, such as ditches, low water levels, other
buildings on-site; and indications of buildings five feet or less beyond site
property lines.
(2)
Foundation plan documents must include general foundation
design and details.
(3)
Floor plan documents must include room names, numbers,
and usages; numbered doors including swing; windows; legend or clarification
of wall types; dimensions; fixed equipment; plumbing fixtures; and kitchen
basic layout; and identification of all smoke barrier walls (outside wall
to outside wall) or fire walls.
(4)
For both new construction and additions or remodeling
to existing buildings, an overall plan of the entire building must be drawn
or reduced to fit on an 8« inch by 11 inch sheet; two reduced plans
must be submitted for file record. See subsection (d)(3) of this section.
(5)
Schedules must include door materials, widths, types;
window materials, sizes, types; room finishes; and special hardware.
(6)
Elevations and roof plan must include exterior elevations,
including material note indications and any roof top equipment; roof slopes,
drains, and gas piping; and interior elevations where needed for special conditions.
(7)
Details must include wall sections as needed (especially
for special conditions); cabinet and built-in work, basic design only; cross
sections through buildings as needed; and miscellaneous details and enlargements
as needed.
(8)
Building structure documents must include structural
framing layout and details (primarily for column, beam, joist, and structural
frame building); roof framing layout (when this cannot be adequately shown
on cross section); cross sections in quantity and detail to show sufficient
structural design and structural details as necessary to assure adequate structural
design, also calculated design loads.
(9)
Electrical documents must include electrical layout,
including lights, convenience outlets, equipment outlets, switches, and other
electrical outlets and devices; service, circuiting, distribution, and panel
diagrams; exit light system (exit signs and emergency egress lighting); emergency
electrical provisions (such as generators and panels); fire alarm and similar
systems (such as control panel, devices, and alarms); sizes and details sufficient
to assure safe and properly operating systems; and a staff communication system.
(10)
Plumbing documents must include plumbing layout with
pipe sizes and details sufficient to assure safe and properly operating systems,
water systems, sanitary systems, gas systems, other systems normally considered
under the scope of plumbing, fixtures, and provisions for combustion air supply.
(11)
Heating, ventilation, and air-conditioning (HVAC)
documents must include sufficient details of HVAC systems and components to
assure a safe and properly operating installation including, but not limited
to, heating, ventilating, and air-conditioning layout, ducts, protection of
duct inlets and outlets, combustion air, piping, exhausts, and duct smoke
and/or fire dampers; and equipment types, sizes, and locations.
(12)
If a sprinkler system is provided or required by
any authority, documents must include plans and details of NFPA designed systems;
plans and details of partial systems provided only for hazardous areas; and
electrical devices interconnected to the alarm system.
(13)
Other layouts, plans, or details as may be necessary
for a clear understanding of the design and scope of the project, including
plans covering private water or sewer systems must be reviewed by the local
health or waste water authority having jurisdiction.
(14)
Specifications must include installation techniques,
quality standards and/or manufacturers, references to specific codes and standards,
design criteria, special equipment, hardware, painting, and any others as
needed to amplify drawings and notes.
(c)
Initial survey of completed construction.
(1)
Upon completion of construction, including grounds and
basic equipment and furnishings, a final construction inspection (initial
survey) of the facility, including additions or remodeled areas, is required
to be performed by the Long Term Care-Regulatory Regional Office prior to
occupancy. The completed construction must have the written approval of the
local authorities having jurisdiction, including the fire marshal and building
inspector.
(2)
After the completed construction has been surveyed
by DHS and found acceptable, this information will be conveyed to the licensing
officer of DHS as part of the information needed to issue a license to the
facility. In the case of additions or remodeling of existing facilities, a
revision or modification to an existing license may be necessary. The building,
grades, drives, and parking must essentially be 100% complete at the time
of this initial visit for occupancy approval and licensing, including basic
furnishings and operational needs. A facility may accept up to three clients
between the time it receives initial approval from DHS and the time the license
is issued.
(3)
The following documents must be available to DHS's
surveyor at the time of the survey of the completed building:
(A)
written approval of local authorities as called for in
paragraph (1)of this subsection;
(B)
written certification of the fire alarm system by the installing
agency (Form FML-009 of the Texas State Fire Marshal);
(C)
documentation of materials used in the building which are
required to have a specific limited fire or flame spread rating including
special wall finishes or floor coverings, flame retardant curtains (including
cubicle curtains), rated ceilings, etc. This must include a signed letter
from the installer, in the case of carpeting, for example, verifying that
the carpeting installed is named in the laboratory test document;
(D)
approval of the completed sprinkler system installation
by the designing engineer. A copy of the material list and test certification
must be available;
(E)
service contracts for maintenance and testing of alarm
systems, sprinkler systems, etc.;
(F)
a copy of gas test results of the facility's gas lines
from the meter;
(G)
a written statement from an architect/engineer stating
that he certifies that the building was constructed to meet NFPA 101, Life
Safety Code, and all locally applicable codes, and that the facility is in
substantial conformance with minimum licensing requirements; and
(H)
the contract documents specified in subsection (b) of this
section.
(d)
Nonapproval of new construction.
(1)
If, during the initial on-site survey of completed construction,
the surveyor finds certain basic requirements not met, he may recommend to
DHS that the facility not yet be licensed and approved for occupancy. Such
basic items may include the following:
(A)
construction which does not meet minimum code or licensure
standards for basic requirements such as corridors being less than required
width, ceilings installed at less than the minimum seven-foot six-inch height,
client bedroom dimensions less than required, and other such features which
would disrupt or otherwise adversely affect the clients and staff if corrected
after occupancy;
(B)
no written approval by local authorities;
(C)
fire protection systems not completely installed or not
functioning properly, including, but not limited to, fire alarm systems, emergency
power and lighting, and sprinkler systems;
(D)
required exits not all usable according to NFPA 101, 1988
requirements;
(E)
telephone not installed or not properly working;
(F)
sufficient basic furnishings, essential appliances, and
equipment are not installed or not functioning; and
(G)
any other basic operational or safety feature which the
surveyor, as the authority having jurisdiction, encounters which in his judgment
would preclude safe and normal occupancy by clients on that day.
(2)
If the surveyor encounters only less basic and
less important deficiencies, licensure may be recommended based on an approved
written plan of correction from the facility's administrator.
(3)
Copies of reduced size floor plans on an 8«
inch by 11 inch sheet must be submitted in duplicate to DHS for record/file
use and for the facility's use and for facility's use for evacuation plan,
fire alarm zone identification, etc. The plan must contain basic legible information
such as scale, room usage names, actual bedroom numbers, doors, windows, and
any other pertinent information.
§98.42.Safety.
(a)
Environmental safety.
(1)
The physical plant safety requirements are designed to
provide safety to the clients, participants, or adult individuals receiving
day care.
(2)
The facility must conform to all applicable state
laws and local ordinances pertaining to occupancy. When these laws, codes,
and ordinances are more stringent than the standards in this section, the
more stringent requirements govern. If state laws or local codes or ordinances
conflict with the requirements of these standards, the Licensing Section will
be so informed so that these conflicts may be legally resolved.
(3)
The facility must meet the provisions and requirements
concerning accessibility for individuals with disabilities in the following
laws and regulations: the Americans with Disabilities Act (ADA) of 1990 (Public
Law 101- 336; Title 42, United States Code, Chapter 126); Title 28, Code of
Federal Regulations, Part 35; Texas Civil Statutes, Article 9102; and Title
16, Texas Administrative Code, Chapter 68. Plans for new construction, substantial
renovations, modifications, and alterations must be submitted to the Texas
Department of Licensing and Regulation (Attn: Elimination of Architectural
Barriers Program) for accessibility approval under Article 9102. At least
50% of the client restrooms must be in accordance with ADA. Exception: Facilities
licensed for 45 or fewer persons may provide one unisex restroom in accordance
with accessibility requirements.
(4)
The jurisdiction of the Texas Department of Human
Services (DHS) extends beyond the licensed facility when the licensed area
is only a part of a building or floor that is not fire-separated in accordance
with the Life Safety Code, §10-7.1.2.
(b)
Life Safety Code.
(1)
The principles of the Life Safety Code, of the National
Fire Protection Association (NFPA), 1988 edition, under §10-7 "Day Care
Centers," and operating features under §31-3.4 "Day Care Centers," must
be used in establishing life safety requirements for adult day care facilities,
with the interpretation and exceptions as listed in paragraphs (2) and (3)
of this subsection.
(2)
Interpretations of the Life Safety Code, 1988, §10-7,
are as follows:
(A)
The principles of §10-7 apply to any size facility
requiring licensing with four or more clients or participants.
(B)
The principles of §10-7.1.1.3 relating to children
six years of age and over apply.
(C)
The manual fire alarm system and automatic smoke detection
system must be installed in accordance with NFPA 72 series and state fire
marshal licensing requirements.
(D)
All facilities must follow the Life Safety Code, 1988,
§10-7, including but not limited to the following:
(i)
Where centers are located in a building containing mixed
occupancies, the occupancies must be separated by one-hour fire barriers.
(ii)
Exit access corridors must be not less than six feet clear
width.
(iii)
Each floor occupied by clients must have access to two
remote exits in accordance with Chapter 5, Means of Egress. Doors in the means
of egress must be equipped with hardware that opens with a single motion.
Doors must swing in the direction of egress for occupant loads greater than
50 occupants.
(iv)
Every room or space normally subject to client occupancy,
other than bathrooms or any room with attended individual clients, must have
at least one outside window for emergency rescue or ventilation. Such window
must be able to be opened from the inside without the use of tools and provide
a clear opening of not less than 20 in. (50.8 cm.) in width, 24. in. (61 cm.)
in height, and 5.7 sq. ft. (.53 sq. m.) in area. The bottom of the opening
must be not more than 44 in. (112 cm.) above the floor. In rooms located greater
than three stories above grade, the openable clear height, width, and area
of the window may be modified to the dimensions necessary for ventilation.
Exceptions are as follows:
(I)
in buildings protected throughout by an approved automatic
sprinkler system in accordance with §7-7; or
(II)
where the room or space has a door leading directly to
the outside of the building.
(v)
Interior finish in stairways, corridors, and lobbies must
be Class A, and for all other walls and ceilings must be Class A or Class
B in accordance with §6-5.
(vi)
Floor coverings within corridors and exits must be Class
I or Class II in accordance with §6-5.
(vii)
A smoke detection system must be installed in accordance
with §7-6 with placement of detectors in each story in front of the doors
to the stairways and at not greater than 30 ft. (9.1 m.) spacing in the corridors
of all floors containing the center. Detectors also must be installed in lounges,
recreation areas, and sleeping rooms in the center. Maintenance and testing
must be conducted semi-annually on fire alarm systems by a person licensed
by the State of Texas.
(viii)
Fire department notification must be accomplished in
accordance with §7-6.4, except in day-care centers with not more than
100 clients.
(3)
Exceptions to the Life Safety Code, 1988,
§10-7, are as follows.
(A)
All required smoke detectors must be powered by the facility
electrical system and be interconnected with the fire alarm system.
(B)
Reference to apartment buildings in §10-7.1.2 must
be deleted. Any floor above or below the floor of exit discharge which is
used by semiambulatory clients, or those whose disability prevents them from
taking appropriate action for self-preservation in emergencies, must be provided
with smoke compartmentation.
(C)
Emergency lighting is not required for means of egress
if the facility operation is during daylight hours and if natural light, direct
or borrowed, is provided so that the means of egress is usable in emergencies.
(D)
Special protective electrical receptacle covers are not
required.
(E)
NFPA 96 publication relating to Vapor Removal Cooking Equipment
must not be applicable if the facility has residential-type cooking equipment.
(F)
Public corridors must not be used for return or supply
air systems.
(G)
Residential-type heating units or heating units designed
for attic installations must not be considered to be units requiring furnace
room construction as specified under §10-7.3.2.1.
(H)
New additions or remodeling must be as required for new
construction in accordance with paragraph (4) of this subsection.
(I)
Sprinkler system for janitor's closet as specified under
§10-7.2.2 are not required unless the building has a complete NFPA 13
system.
(4)
For new construction, DHS requires conformance
to the following codes, except that DHS may accept other nationally recognized
codes that are locally enforced.
(A)
If the municipality has a building code and a plumbing
code, then those codes govern in those areas of construction. Where local
codes or ordinances are applicable, the most restrictive parts concerning
the same subject item apply unless otherwise determined by the authority having
jurisdiction for local codes and the licensing agency.
(B)
In the absence of local municipal codes or ordinances,
nationally recognized codes must be used, such as the Standard Building Code
and the Standard Plumbing Code, both of which are part of the Southern Building
Code, published by Congress International, Inc. These nationally recognized
codes, when used, must all be publications of the same group or organization
to assure the intended continuity.
(C)
Heating, ventilating, and air-conditioning (HVAC) systems
must be designed and installed in accordance with NFPA 90A, relating to the
Standard for the Installation of Air Conditioning and Ventilating Systems,
and NFPA 90B, relating to the Standard for the Installation of Warm Air Heating
and Air Conditioning Systems, as applicable, and the American Society of Heating,
Ventilating, and Air Conditioning Engineers (ASHRAE), except as may be modified
in this subchapter. Buildings required to meet NFPA 90A must have automatic
shutdown upon initiation of the fire alarm system, in accordance with NFPA
90A, §4-3.
(D)
Electrical and illumination systems must be designed and
installed in accordance with NFPA 70, relating to the National Electrical
Code, and the Lighting Handbook of the Illuminating Engineering Society (IES)
of North America except as may be modified in this subchapter. Minimum illumination
must be 20 foot candles in the toilets, bathing, and general use areas such
as living, dining, corridors, and lobbies. Minimum illumination must be 50
foot candles in the kitchen, medication or food preparation areas, and activity
areas for handicrafts or reading.
(5)
An existing building either occupied as an adult
day care facility at the time of initial inspection by the licensing agency,
or converted to occupancy as an adult day care facility, must meet all local
requirements pertaining to the building for that occupancy. The licensing
agency may require the facility sponsor or licensee to submit evidence that
local requirements are satisfied.
(6)
Adult day care facilities must be of recognized permanent
type construction as distinguished from movable buildings or construction.
Buildings must be structurally sound with regard to actual or expected dead,
live, and wind loads. DHS may require submission of evidence to this effect.
(7)
Electrical and mechanical systems must be safe and
in working order. DHS may require the facility sponsor or licensee to submit
evidence to this effect, consisting of a report from the fire marshal or city
and/or county building official having jurisdiction or a report from a registered
professional engineer.
(8)
DHS will consider a written request from the facility
for a waiver of the requirements which, if strictly applied, would clearly
be impractical in DHS's judgment for existing buildings and structures which
are converted to adult day care occupancy. Any of these modifications will
be allowed only to the extent that reasonable life safety against the hazards
of fire, explosion, structural, or other building failure and panic are provided
and maintained.
(c)
Personal safety.
(1)
Fire safety.
(A)
Fire safety must be observed at all times.
(B)
Storage items must be neatly arranged and placed to minimize
fire hazard. Gasoline, volatile materials, paint, and similar products must
not be stored in the building housing clients unless approved by the local
fire marshal. Accumulations of extraneous material and refuse is not permitted.
(C)
The building must be kept in good repair; electrical, heating,
and cooling systems must be maintained in a safe manner. Electrical appliances,
devices, and lamps must be used in a manner that prevents overloaded circuits.
Any extension cords in excess of six feet must be shielded or protected.
(D)
The facility must report all fires to DHS, Licensing Section,
on DHS's Fire Report for Licensed Facilities form within 15 days after the
fire. The facility must immediately notify DHS, Licensing Section, at (512)
438-2630 of disasters or any fires which caused death or serious injury. A
telephone report must be followed by a written report on DHS's Fire Report
form.
(E)
The facility must develop and conspicuously post throughout
the facility an emergency evacuation plan approved by the local fire marshal
having jurisdiction and DHS.
(F)
Smoking regulations must be established and conspicuously
posted in the facility. All smoking must be supervised. Ashtrays of noncombustible
material and safe design must be provided.
(G)
The facility must have an emergency fire lane for access
of fire apparatus if required by local authorities.
(H)
There must be at least one telephone in the facility available
to either staff or clients to use in case of an emergency. Emergency telephone
numbers must be posted conspicuously at or near the telephone.
(I)
An initial pressure test of facility gas lines from the
meter must be provided. Additional pressure tests are required when the facility
has major renovations or additions during which the gas service is interrupted.
All gas heating systems must be checked for proper operation and safety prior
to the heating season by someone experienced in the areas of heating and air
conditioning. Any unsatisfactory conditions must be corrected promptly.
(J)
Curtains and/or draperies in public spaces and individual
rooms in which smoking is allowed must be flame retardant.
(K)
Portable fire extinguishers must be provided and maintained
to comply with the provisions of the National Fire Protection Association
(NFPA) 10. This includes such items as type of extinguishers (A, B, or C),
location and spacing, mounting heights, monthly inspections by staff, yearly
inspections by a licensed agent (with any necessary servicing), and hydrostatic
testing as recommended by the manufacturer.
(L)
Metal wastebaskets of substantial gauge or any U.L. or
F.M. approved containers must be provided in all areas where smoking is permitted.
Garbage, waste, or trash containers provided for kitchens, janitor closets,
laundries, mechanical or boiler rooms, general storage, and similar places
must be made of metal or any U.L. or F.M. approved material, having a close
fitting cover. Disposable plastic liners may be used in these containers for
sanitation.
(2)
General requirements.
(A)
All exterior site conditions must be designed, constructed,
and maintained in the interest of clients' safety. Newly constructed ramps
must not exceed 1:12 slope. Ramps, walks, and steps must be of slip-resistive
texture and be smooth and uniform, without irregularities. Guard rails, fences,
and hand rails must be provided as required.
(B)
All stairways must have substantial hand rails properly
secured.
(C)
Tubs or showers for client use must have non-slip bottoms
or floor surfaces, either built in or applied to the surface.
(D)
Elevators for client use must be in safe operating condition.
(E)
An adequate supply of hot water must be provided. The hot
water system connected to all client-use fixtures must deliver warm water
no hotter than 120 degrees Fahrenheit at the fixture. Hot water for other
sanitary usages must be provided at the temperatures required for the appliance
or fixture served, or for the operation involved.
(F)
There must be no occupancies or activities adversely affecting
the safety of the clients in the buildings or on the premises of the facility.
(G)
There must be at least 35 square feet provided for each
ambulatory client and at least 50 square feet for each semiambulatory client.
This space may not include the kitchen/food service area, rest rooms, bath
areas, office, corridors, stairways, storage areas, and outdoor space.
(H)
An office area must be provided in a central location to
record and maintain files for each client.
(I)
An area for rest, other than the treatment and/or exam
room, must be provided with a sufficient number of reclining lounge chairs
or beds to accommodate the needs of clients. A room or rooms with beds must
be provided for those clients who prefer privacy. Facilities licensed on or
after May 1, 1999, must ensure that the room(s) with beds must provide space
for a minimum 5% of the licensed capacity. The room(s) usable space must provide
not less than 80 square feet per bed for one-bed room and not less than 60
square feet per bed for multiple-bed rooms. A bedroom shall be not less than
eight feet in its smallest dimension, unless otherwise approved by DHS.
(J)
The facility must have at least one room available as a
treatment and/or examination room for use by the nursing staff or the client's
physician. The client may not be treated and/or examined in an area other
than the treatment room.
(K)
The facility must have a safe, secure, and suitable outdoor
recreation and/or relaxation area for clients. This area must be connected
to, be a part of, be controlled by, and be directly accessible from the facility.
This area must be enclosed by a wall or a fence or located in a courtyard
and supervised by staff to prevent wandering and large enough to conduct outdoor
activities. This area must be suitably furnished. A minimum of 20% of the
required outdoor space must be shaded. The required outdoor space for facilities
licensed on or after May 1, 1999 is:
(i)
400 square feet for facilities up to 59 clients;
(ii)
600 square feet for facilities up to 99 clients; and
(iii)
800 square feet for facilities with 100 or more clients.
§98.43.Sanitation.
(a)
General.
(1)
Waste water and sewage must be discharged into a state-approved
municipal sewage system; any exception to an on-site sewage facility must
be as approved by the Texas Natural Resource Conservation Commission or authorized
agent.
(2)
The water supply must be from a system approved by
the Water Utility Division, Texas Natural Resources Conservation Commission,
or from a system regulated by an entity responsible for water quality in that
jurisdiction as approved by the Water Utility Division, Texas Natural Resources
Conservation Commission.
(3)
Waste, trash, and garbage must be disposed from the
premises at regular intervals in accordance with state and local practices.
Excessive accumulations are not permitted. Outside containers must have tight-fitting
lids left in closed position. Containers must be maintained in a clean and
serviceable condition.
(4)
The building and grounds must be kept neat and free
of refuse, litter, extraneous materials, and unsightly or injurious accumulations.
(5)
The facility must make every effort possible to guard
against insects, rodents, rainwater, and other conditions adversely affecting
a sanitary environment or the well-being of the client.
(6)
A pest control program must be provided by qualified
facility staff or by contract with a licensed pest control company. The least
toxic and least flammable effective chemicals must be used. Documented evidence
of routine efforts to remove rodents and insects must be maintained.
(7)
The facility must be kept free of offensive odors,
accumulations of dirt, rubbish, dust, and hazards. Floors must be maintained
in good condition and cleaned regularly; walls and ceilings must be structurally
maintained, repaired, and repainted or cleaned as needed. Storage areas, attics,
and cellars must be free of refuse and extraneous materials.
(8)
There must be complete, separate, and adequate rest
room facilities for men and women. Toilets must be provided as necessary to
meet the needs of the clients; however, there must be not less than one toilet
and one lavatory for every 15 clients or fraction thereof. Multiple toilets
must be compartmented. All toilets must be equipped with grab bars. Lavatories
must be provided with hot and cold water, soap, and individual towels. A minimum
of one bathing unit must be provided. Facilities licensed on or after May
1, 1999, must provide a minimum of one bathing unit, which does not interfere
with the use of the restroom by other clients. Each tub or shower must be
in an individual room or enclosure which provides space for the private use
of the bathing fixture, for drying and dressing, and for the client and attendant.
(9)
All bathrooms, toilet rooms, and other odor-producing
rooms or areas for soiled and unsanitary operations must be ventilated to
the exterior for odor control; the use of windows is not permissible.
(10)
In kitchens and laundries, there must be procedures
which prevent cross contamination between clean and soiled utensils and clean
and soiled linens.
(b)
Kitchen.
(1)
The rules in 25 TAC 229, Subchapter K (relating to Texas
Food Establishments) and local health ordinances or requirements must be observed
in the storage, preparation, and distribution of food; in the cleaning of
dishes, equipment, and work area; and in the storage and disposal of waste.
(2)
Facilities licensed after May 1, 1999, must provide
three compartment sinks. A three compartment sink must be used if washing,
rinsing, and sanitizing utensils and equipment is done manually. Sinks must
be large enough to permit the complete immersion of utensils and equipment
and each compartment sink must be supplied with hot and cold potable water.
A two compartment sink will be acceptable where only single-service tableware
is provided.
(3)
Food preparation kitchens must have separate hand
washing fixtures including hot and cold water, soap, and individual towels,
preferably paper towels, in accordance with 25 TAC 229, Subchapter K (relating
to Texas Food Establishments).
(4)
Where kitchen provisions consist of serving kitchens
only, and cooking equipment is used only to warm food, prepare hot drinks,
or provide similar food service, the kitchen is not required to have separate
hand-washing fixtures.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 14, 1999.
TRD-9900230
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: May 1, 1999
For further information, please call: (512) 438-3765
40 TAC §98.61
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department of Human Services or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Human Resources
Code, Chapter 103, which provides the department with the authority to license
adult day care facilities.
The repeal implements the Human Resources Code, Chapter 103, §§103.001-103.011.
§98.61.Construction and Initial Survey of Completed Construction.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 14, 1999.
TRD-9900231
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: May 1, 1999
For further information, please call: (512) 438-3765
40 TAC §98.61, §98.62
The new sections are proposed under the Human Resources Code,
Chapter 103, which provides the department with the authority to license adult
day care facilities, and under the Human Resources Code, Title 2, Chapters
22 and 32, which provides the department with the authority to administer
public and medical assistance programs and under Texas Government Code §531.021,
which provides the Health and Human Services Commission with the authority
to administer federal medical assistance funds.
The new sections implement §§22.001-22.030, 32.001-32.042, and
103.001-103.011 of the Human Resources Code.
§98.61.General Requirements.
(a)
All facilities are required to meet the following:
(1)
the requirements for advance directives as outlined under
subsection (b) of this section;
(2)
the Health and Safety Code, Chapter 250, concerning
conducting criminal history checks;
(3)
workplace standards to comply with HIV/AIDS and related
conditions in the workplace;
(4)
all relevant federal and state standards; and
(5)
all applicable provisions of the Human Resource Code,
Chapter 102.
(b)
All facilities must maintain policies and procedures regarding
the following rules with respect to all adult individuals receiving services
provided by the facility:
(1)
all individuals must be provided with the following written
information:
(A)
the individual's rights under Texas law (whether statutory
or as recognized by the courts of the state) to make decisions concerning
medical care, including the right to accept or refuse medical or surgical
treatment and the right to formulate advance directives; and
(B)
the facility's policies respecting the implementation of
these rights.
(2)
the facility must document in the individual's
record whether or not the individual has executed an advance directive;
(3)
the facility must not condition the provision of care
or otherwise discriminate against an individual based on whether or not the
individual has executed an advance directive;
(4)
the facility must ensure compliance with the requirements
of Texas law, whether statutory or as recognized by the courts of Texas, respecting
advance directives;
(5)
the facility must provide, individually or with others,
for education for staff and families on issues concerning advance directives
in a language the client and family understands;
(6)
the facility must provide the attending physician
with any information relating to a known existing Directive to Physicians
and/or Living Will or Durable Power of Attorney for Health Care, and assist
with coordinating physicians' orders with any client directive;
(7)
when an individual is in an incapacitated state, and
therefore is unable to receive information or articulate whether he has executed
an advance directive, the family, surrogate, or other concerned person must
receive the information concerning advance directives. The facility must provide
this information to the individual in a language he understands, if he is
no longer incapacitated; and
(8)
when the client or a relative, surrogate, or other
concerned or related individual presents the facility with a copy of the individual's
advance directive, the facility must comply with the advance directive including
recognition of a durable power of attorney for health care, to the extent
allowed under state law. If no one comes forward with a previously executed
advance directive and the client is incapacitated or otherwise unable to receive
information or articulate whether he has executed an advance directive, the
facility must note that the individual was not able to receive information
and was unable to communicate whether an advance directive existed.
(c)
All facilities must:
(1)
make an oral report to the Texas Department of Human Services
(DHS) at 1-800-458-9858 on learning of an alleged abuse or neglect of a client.
A written investigation report must be sent to DHS no later than the fifth
working day after the oral report;
(2)
maintain incident reports;
(3)
ensure the confidentiality of individual client records
and other information related to clients; and
(4)
inform the client orally and in writing of his rights,
responsibilities, and grievance procedures in a language he understands.
(d)
Each facility must prominently and conspicuously post for
display in a public area of the facility that is readily available to clients,
employees, and visitors:
(1)
the license issued under this chapter;
(2)
a sign prescribed by DHS that describes complaint
procedures and specifies how complaints may be filed with DHS;
(3)
a notice in the form prescribed by DHS stating that
inspection and related reports are available at the facility for public inspection
and providing DHS's toll-free telephone number that may be used to obtain
information concerning the facility;
(4)
a copy of the most recent inspection report relating
to the facility;
(5)
a brochure or letter which outlines the facility's
hours of operation, holidays, and a description of activities offered; and
(6)
emergency telephone numbers, including the abuse hotline
telephone number, near all telephones.
§98.62.Program Requirements.
(a)
Staff qualifications.
(1)
Director.
(A)
The director must:
(i)
have graduated from an accredited four-year college or
university and have no less than one year of experience in working with people
in a human service or medically-related program, or have an associate degree
or 60 semester hours from an accredited college or university with three years
of experience in working with people in a human service or medically-related
program; or
(ii)
be a registered nurse with one year of experience in a
human service or medically related program; or
(iii)
meet the training and experience requirements for a license
as a nursing facility administrator under the rules of the Texas Board of
Licensure for Nursing Facility Administrators; or
(iv)
have met, on July 16, 1989, the qualifications for the
position under the requirements in effect at that time and have served continuously
in the capacity of director of a Texas Department of Human Services-certified
facility since that date.
(B)
The activities director may fulfill the function of facility
director if he meets the qualifications for facility director.
(C)
One person may not serve as facility nurse, activities
director, and facility director, regardless of qualifications.
(D)
The facility must have a policy regarding the delegation
of responsibility in the administrator's absence, not to exceed 10 working
days.
(E)
The facility must request a waiver from Long Term Care-Regulatory
(LTC-R) Regional Office for exceptional circumstances. Exceptional circumstances
include, but are not limited to, hospitalization, death, etc.
(2)
Nurse. The facility nurse must be a registered
nurse (RN) or a licensed vocational nurse (LVN).
(A)
The RN must have a current license from the Board of Nurse
Examiners for the State of Texas and must practice in compliance with the
Nurse Practice Act and rules and regulations of the Board of Nurse Examiners.
(B)
The LVN must have a current license from the Board of Vocational
Nurse Examiners of Texas and must practice in compliance with the Vocational
Nurse Act and rules and regulations of the Board of Vocational Nurse Examiners.
(C)
If a nurse serving as director leaves the facility to perform
other duties related to the provisions of the day care program, an LVN or
another RN must fulfill the duties of the facility nurse.
(D)
Facilities that receive Title XX funds are not required
to have a registered nurse on duty, as long as the client receiving services
has no medical needs and is able to self medicate.
(3)
Activities director.
(A)
The activities director must be a high school graduate
(or equivalent) and have:
(i)
a bachelor's degree from an accredited college or university,
plus one year of full-time experience in working with the elderly or people
with disabilities in a human service or medically-related program; or
(ii)
60 semester hours from an accredited college or university,
plus two years of full-time experience in working with the elderly or people
with disabilities in a human service or medically-related program; or
(iii)
completed a state-approved activities director's course,
plus two years of full-time experience in working with the elderly or people
with disabilities in a human service or medically-related program.
(B)
Anyone hired prior to May 1, 1999, as an activities director
with four years of full-time experience in working with elderly or people
with disabilities in a human service or medically-related program, will be
considered a qualified activities director.
(4)
Attendants. Attendants must be 18 years old or
older and may include, but are not limited to, bus drivers, aides, cooks,
janitors, porters, maids, and laundry workers.
(A)
If the facility employs a bus driver, the driver must have
a current operator's license, issued by the Texas Department of Public Safety,
which is appropriate for the class of vehicle used to transport clients.
(B)
If an attendant handles food in the facility, he must meet
the requirements described in the Texas Department of Health rules on food
service sanitation as described under 25 TAC 229, Subchapter K (relating to
Texas Food Establishments).
(5)
Food service personnel. If the facility prepares
meals on site, the facility must have sufficient food service personnel to
prepare meals and snacks. Food service personnel must meet the requirements
described in the Texas Department of Health rules on food service sanitation
as described under 25 TAC 229, Subchapter K (relating to Texas Food Establishments).
(6)
Additional requirements for Day Activity and Health
Services (DAHS) employees.
(A)
Housekeeper. A DAHS facility may employ a part-time or
full-time housekeeper.
(B)
Driver. If a DAHS facility employs a part-time or full-time
driver, the driver must:
(i)
operate the facility's vehicles in a safe manner; and
(ii)
maintain adult cardiopulmonary resuscitation (CPR) certification.
(b)
Staffing ratio. The facility must ensure that:
(1)
the ratio of direct service staff to clients is at least
one to eight, which must be maintained during provision of all covered services
except during facility-provided transportation;
(2)
at a minimum, one registered nurse or licensed vocational
nurse must be working on site, eight hours per day. The facility may schedule
nursing hours according to client needs. Sufficient licensed nursing staff
must be on site to meet the nursing needs of the clients;
(3)
the facility director works a minimum of 40 hours
per week performing duties relating to the provision of adult day care services;
and
(4)
the activities director works 40 hours a week.
(c)
Staff health. All direct staff must be free of communicable
diseases.
(d)
Staff responsibilities.
(1)
Facility director. The facility director is responsible
for:
(A)
managing the adult day care program and/or the facility;
(B)
training and supervising facility staff;
(C)
monitoring the facility building and grounds to ensure
compliance;
(D)
maintaining all financial and client records;
(E)
developing relationships with community groups and agencies
for identification and referral of clients;
(F)
maintaining communication with the client's family members
or responsible parties;
(G)
assuring the development and maintenance of the individual
plan of care; and
(H)
ensuring that, if he serves as the nurse consultant during
the same eight- hours-per-day period, he is fulfilling his responsibility
as director.
(2)
Facility nurse. The facility nurse is responsible
for:
(A)
assessing the client's nursing and medical needs;
(B)
developing a client's individual plan of care;
(C)
obtaining physician's orders for medication and treatments
to be administered;
(D)
determining whether self-administered medications have
been appropriately taken, applied, or used;
(E)
entering, dating, and signing monthly progress notes on
medical care provided;
(F)
administering medication and treatments;
(G)
providing health education; and
(H)
maintaining medical records.
(3)
Activities director. The activities director
is responsible for:
(A)
planning and directing the daily program of activities,
including physical fitness exercises or other recreational activities;
(B)
recording the client's social history;
(C)
assisting the client's related support needs;
(D)
assuring that the identified related support services are
included in the client's individual plan of care; and
(E)
signing and dating monthly progress notes about social
and related support services activities provided.
(4)
Attendant. The attendant is responsible for:
(A)
providing personal care services (assistance with activities
of daily living);
(B)
assisting the activities director with recreational activities;
and
(C)
providing protective supervision (observation and monitoring).
(5)
Food service personnel. Food service personnel
are responsible for:
(A)
preparing meals and snacks; and
(B)
maintaining the kitchen area and utensils in a safe and
sanitary condition.
(6)
Dietitian consultant.
(A)
The facility must receive consultation at least four hours
each month from a dietitian. The dietitian consultant plans and/or reviews
menus and must:
(i)
prior approve and sign each snack and luncheon menu;
(ii)
review menus monthly to ensure that substitutions were
appropriate; and
(iii)
develop any special diets ordered by physicians for individual
clients.
(B)
The dietitian consultant is required for all facilities,
even those that have their meals delivered from another facility with its
own dietitian consultant. A consultant may provide consultation to several
facilities as long as each facility receives at least four hours a month.
The four hours cannot be "shared" by several facilities.
(C)
Facilities that contract for the preparation and delivery
of meals with management companies employing their own registered dietitians
are required to have the four hours of consultation from a dietitian consultant.
(7)
Registered nurse consultant. In facilities where
the nurse is a licensed vocational nurse, a registered nurse consultant must
provide on-site consultation four hours per week. The RN consultant must document
the consultation provided. The RN consultant must provide the consultation
during the time when clients are present in the facility. The RN consultant
may provide the following types of assistance:
(A)
reviewing plans of care and suggesting changes, if appropriate;
(B)
assessing clients' health conditions;
(C)
consulting with the LVN in solving problems involving client
care and service planning;
(D)
counseling clients on their health needs;
(E)
training, consulting, and assisting the LVN in maintaining
proper medical records; and
(F)
providing in-service training for direct service staff.
(e)
Training.
(1)
Initial training.
(A)
The facility must:
(i)
provide all staff with training in the fire, disaster,
and evacuation procedures within three workdays of employment. The training
must be documented in the facility records.
(ii)
provide direct delivery staff a minimum of 18 hours of
training during the first three months of employment. Training must be documented
in the facility records. Training must include:
(I)
any nationally or locally recognized adult cardiopulmonary
resuscitation (CPR) course/certification;
(II)
first aid; or
(III)
orientation to health care delivery including the following
components:
(-a-)
safe body function and mechanics;
(-b-)
personal care techniques and procedures; and
(-c-)
overview of client population served at the facility;
and
(IV)
identification and reporting of abuse, neglect, or exploitation.
(B)
Staff employed as substitutes on an infrequent and irregular
basis are not required to have 18 hours of initial training. Substitute and
consultant staff must receive a minimum of three hours of orientation. Substitutes
for direct service staff used by a facility on a regular basis must meet all
training requirements as specified under this subsection.
(2)
Ongoing training.
(A)
The facility must provide a minimum of three hours of ongoing
training to direct service staff quarterly. The facility must ensure that
direct delivery staff maintain current certification in CPR.
(B)
The facility must practice evacuation procedures with staff
and clients quarterly. The evacuation results must be documented in the facility
records.
(f)
Medications.
(1)
Administration.
(A)
Clients who choose not to or cannot self-administer their
medications must have their medications administered by a person who holds
a current license under state law which authorizes the licensee to administer
medications.
(B)
All medication prescribed to clients must be dispensed
through a pharmacy or by the client's treating physician or dentist.
(C)
Physician sample medications may be given to a client by
the facility provided the medication has specific dosage instructions for
the individual client.
(D)
Each client's medications must be listed on an individual
client's medication profile record. The recorded information obtained from
the prescription label must include, but is not limited to, the medication
name, strength, dosage, amount received, directions for use, route of administration,
prescription number, pharmacy name, and the date each medication was issued
by the pharmacy.
(2)
Assistance with self administration. Assistance
with self administration of client's medication regimen by licensed nursing
staff may be provided to clients who are incapable of self- administering
without assistance. Supervision includes, and is limited to:
(A)
reminders to take their medications at the prescribed time;
(B)
opening containers or packages and replacing lids;
(C)
pouring prescribed dosage according to medication profile
record;
(D)
returning medications to the proper locked areas;
(E)
obtaining medications from a pharmacy; and
(F)
listing on an individual client's medication profile record
the medication name, strength, dosage, amount received, directions for use,
route of administration, prescription number, pharmacy name, and the date
each medication was issued by the pharmacy.
(3)
Self-administration.
(A)
Clients who self-administer their own medications must
be counseled at least once a month by licensed nursing staff to ascertain
if the clients continue to be capable of self-administering their medications
and/or treatments. A written record of counseling must be kept by the facility.
(B)
Clients who choose to keep their medications locked in
the central medication storage area may be permitted entrance or access to
the area for the purpose of self-administering their own medication and/or
treatment regimen. A facility staff member must remain in or at the storage
area the entire time any client is present.
(4)
General.
(A)
The facility director, the activities director, or a facility
nurse must immediately report to the client's physician and responsible party
any unusual reactions to medications or treatments.
(B)
When the facility supervises or administers the medications,
a written record must be kept when the client does not receive or take his
medications and/or treatments as prescribed. The documentation must include
the date and time the dose should have been taken, and the name and strength
of medication missed.
(5)
Storage.
(A)
The facility must provide a locked area for all medications.
Examples of areas include, but are not limited to:
(i)
central storage area; and
(ii)
medication cart.
(B)
Each client's medication must be stored separately from
other clients' medications within the storage area.
(C)
A refrigerator must have a designated and locked storage
for medications requiring refrigeration. Medications requiring refrigeration
must be stored in a refrigerator used only for medicine storage or in a separate,
permanently attached, and locked medication storage box in a refrigerator.
(D)
Poisonous substances and medications labeled for "external
use only" must be stored separately within the locked medical area.
(E)
The medication room or cabinet medication storage area
must have a separate, permanently attached cabinet, box, or drawer with a
lock to store drugs covered by Schedule II of the Controlled Substances Act
of 1970.
(6)
Disposal.
(A)
Medications no longer being used by the client for the
following reasons must be kept separate from current medications and are to
be disposed of by a registered pharmacist licensed in the State of Texas:
(i)
medications discontinued by order of the physician;
(ii)
medications which remain after a client is deceased; or
(iii)
medications which have passed the expiration date.
(B)
Needles and hypodermic syringes with needles attached must
be disposed as required by 25 TAC 1, Subchapter K (relating to the Definition,
Treatment, and Disposal of Special Waste from Health Care Related Facilities).
(C)
Medications kept in a central storage area are released
to discharged clients when a receipt has been signed by the client or responsible
party.
(g)
Accident, injury, or acute illness.
(1)
The facility must stock and maintain in a single location
first aid supplies to treat burns, cuts, and poisoning.
(2)
In the event of accident or injury requiring emergency
medical, dental, or nursing care, or in the event of apparent death, the adult
day care facility must:
(A)
make arrangements for emergency care and/or transfer to
an appropriate place for treatment (including, but not limited to, physician's
office, clinic, or hospital);
(B)
immediately notify the client's physician and next of kin,
responsible party, or agency who placed the client in the facility; and
(C)
describe and document the accident, injury, or illness
on a separate report. The report must contain a statement of final disposition
and be maintained on file.
(h)
Menus.
(1)
Menus must be planned at least two weeks in advance, dated,
maintained on file, and posted in the facility. Meals must be served according
to approved menus.
(2)
Special diet meals ordered by the client's physician
and developed by the dietician must be labeled with the client's name and
type of diet.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 14, 1999.
TRD-9900232
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: May 1, 1999
For further information, please call: (512) 438-3765
40 TAC §§98.1-98.84
The new sections and amendments are proposed under the Human
Resources Code, Chapter 103, which provides the department with the authority
to license adult day care facilities, and under the Human Resources Code,
Title 2, Chapters 22 and 32, which provides the department with the authority
to administer public and medical assistance programs and under Texas Government
Code §531.021, which provides the Health and Human Services Commission
with the authority to administer federal medical assistance funds.
The new sections and amendments implement §§22.001-22.030, 32.001-32.042,
and 103.001-103.011 of the Human Resources Code.
§98.81.Procedural Requirements.
(a)
The Texas Department of Human Services (DHS) may enter
the premises of a facility at reasonable times and make an inspection necessary
to issue a license or renew a license. DHS
[
(b)
(No change.)
(c)
Generally, all inspections, surveys, complaint investigations,
and other visits, whether
routine
[
(d)
Certain visits may be announced, including, but not limited
to, [
(e)
Any person may request an inspection of
a facility by notifying DHS in writing of an alleged violation of a licensing
requirement. The complaint shall be as detailed as possible and signed by
the complainant. DHS shall perform an on-site inspection as soon as feasible
but no later than 30 days after receiving the complaint, unless after an investigation
the complaint is found to be frivolous. DHS will respond to the complainant
in writing.
(f)
DHS will receive and investigate anonymous
complaints.
(g)
[
(1)
DHS is authorized to photocopy documents, photograph residents,
and use any other available recording devices to preserve all relevant evidence
of conditions found during an inspection, survey, or investigation that DHS
reasonably believes threaten the health and safety of a
client
[
(2)
Examples of records and documents which may be requested
and photocopied or otherwise reproduced are
client
[
(3)
[
(4)
DHS protects the copies for privacy and confidentiality
in accordance with recognized standards of medical records practice, applicable
state laws, and DHS policy.
§98.82.Determinations and Actions Pursuant to Inspections.
(a)-(c)
(No change.)
(d)
Violations found during complaint investigations are discussed
with the facility management and a plan of correction obtained; the violations
are furnished in writing to the facility, as well as any supporting narratives,
but [
(e)
A clear and concise summary in nontechnical language of
each licensure inspection, inspection of care, and/or complaint investigation
is provided by DHS. That summary outlines significant violations noted at
the time of the visit, but does not include names of
clients,
[
(f)
Upon receipt of the final statement of
deficiencies, the facility will have 10 calendar days to submit an acceptable
plan of correction to the Long Term Care-Regulatory regional director.
§98.83.Referrals to the Attorney General.
The Texas Department of Human Services (DHS) may refer a facility to
the attorney general who may petition a district court for:
(1)
a temporary restraining order to restrain a person from
a violation or threatened violation of the requirements or any other law affecting
clients if DHS reasonably believes that the violation or threatened violation
creates an immediate threat to the health and safety of a client; and
(2)
an injunction to restrain a person from a violation
or threatened violation of the requirements or any other law affecting clients
if DHS reasonably believes that the violation or threatened violation creates
a threat to the health and safety of a client.
§98.84.Procedures for Inspection of Public Records.
(a)
Procedures for inspection of public records will be in
accordance with the Texas Government Code, Chapter 552, and as further described
in this section.
(b)
The Long Term Care-Regulatory, Texas Department of Human
Services (DHS), is responsible for the maintenance and release of records
on licensed facilities, and other related records.
(c)
The application for inspection of public records is subject
to the following criteria.
(1)
The application must be made to the Long Term Care-Regulatory,
Texas Department of Human Services, Mail Code E-349, P.O. Box 149030, Austin,
Texas 78714-9030.
(2)
The requester must identify himself.
(3)
The requester must give reasonable prior notice of
the time for inspection and/or copying of records.
(4)
The requester must specify the records requested.
(5)
On written applications, if DHS is unable to ascertain
the records being requested, DHS may return the written application to the
requester for clarification.
(6)
DHS will provide the requested records as soon as
possible; however, if the records are in active use, or in storage, or time
is needed for proper deidentification or preparation of the records for inspection,
DHS will so advise the requester and set an hour and date within a reasonable
time when the records will be available.
(d)
Original records may be inspected or copied, but in no
instance will original records be removed from DHS offices.
(e)
Long Term Care-Regulatory will charge for copies of records
upon request.
(1)
If the requester simply wants to inspect records, the requester
will specify the records to be inspected. DHS will make no charge for this
service, unless the director of Long Term Care-Regulatory determines a charge
is appropriate based on the nature of the request.
(2)
If the requester wants copies of a record, the requester
will specify in writing the records to be copied on an appropriate DHS form,
and DHS will complete the form by specifying the cost of the records which
the requester must pay in advance. Checks and other instruments of payment
must be made payable to the Texas Department of Human Services.
(3)
Any expenses for standard-size copies incurred in
the reproduction, preparation, or retrieval of records must be borne by the
requester on a cost basis in accordance with costs established by the State
Purchasing and General Services Commission or DHS for office machine copies.
(4)
For documents that are mailed, DHS will charge for
the postage at the time it charges for the production. All applicable sales
taxes will be added to the cost of copying records.
(5)
When a request involves more than one long-term care
facility, each facility will be considered a separate request.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 14, 1999.
TRD-9900233
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: May 1, 1999
For further information, please call: (512) 438-3765
40 TAC §§98.91-98.95
The new sections are proposed under the Human Resources Code,
Chapter 103, which provides the department with the authority to license adult
day care facilities, and under the Human Resources Code, Title 2, Chapters
22 and 32, which provides the department with the authority to administer
public and medical assistance programs and under Texas Government Code §531.021,
which provides the Health and Human Services Commission with the authority
to administer federal medical assistance funds.
The new sections implement §§22.001-22.030, 32.001-32.042, and
103.001-103.011 of the Human Resources Code.
§98.91.Definitions of Abuse, Neglect, and Exploitation.
For purposes of this subchapter, the definitions of abuse, neglect,
and exploitation are those found in Chapter 48, Human Resources Code, and
§98.1 of this title (relating to Definitions).
§98.92.Abuse, Neglect, or Exploitation Reportable to the Texas Department of Human Services (DHS) by Facilities.
(a)
Any facility staff who has reasonable cause to believe
that a client is in a state of abuse, neglect, or exploitation must report
the abuse, neglect, or exploitation to DHS's state office at 1-800- 458-9858
and must follow the facility's internal policies regarding abuse, neglect,
or exploitation.
(b)
The following information must be reported to DHS:
(1)
name, age, and address of the resident;
(2)
name and address of the person responsible for the
care of the client, if available;
(3)
nature and extent of the elderly or disabled person's
condition;
(4)
basis of the reporter's knowledge; and
(5)
any other relevant information.
(c)
The facility must investigate the alleged abuse, neglect,
or exploitation and send a written report of the investigation to DHS's state
office no later than the fifth calendar day after the oral report and be available
for inspection by DHS.
§98.93.Complaint Investigation.
(a)
A complaint is any allegation received by the Texas Department
of Human Services (DHS) regarding abuse, neglect, or exploitation of a client,
or a violation of state standards.
(b)
DHS must give the facility notification of the complaint
received and a summary of the complaint, without identifying the source of
the complaint.
§98.94.Investigations of Complaints.
(a)
The Texas Department of Human Services (DHS) only investigates
complaints of abuse, neglect, or exploitation when the act occurs in the facility,
when the licensed facility is responsible for the supervision of the client
at the time the act occurs, or when the alleged perpetrator is affiliated
with the facility. Other complaints of abuse, neglect, or exploitation not
meeting this criteria must be referred to the Texas Department of Protective
and Regulatory Services.
(b)
Complaint investigations must include a visit to the facility
and consultation with persons thought to have knowledge of the circumstances.
If the facility fails to admit DHS staff for a complaint investigation, DHS
will seek a probate or county court order for admission. Investigators may
request of the court that a peace officer accompany them.
(c)
In cases concluded to be physical abuse, the written report
of the investigation by DHS must be submitted to the appropriate law enforcement
agency.
(d)
In cases concluded to be abuse, neglect, or exploitation
of a resident with a guardian, the written report of the investigation by
DHS must be submitted to the probate or county court which oversees the guardianship.
§98.95.Confidentiality.
All reports, records, communications, and working papers used or developed
by the Texas Department of Human Services (DHS) in an investigation are confidential
and may be released only as provided in this section.
(1)
The final written investigation report on cases may be
furnished to the district attorney and appropriate law enforcement agencies
if the investigation reveals abuse that is a criminal offense. DHS may provide
to another state agency or governmental entity information that is necessary
for DHS, state agency, or entity to properly execute its duties and responsibilities
to provide services to the elderly or disabled.
(2)
The final written investigation report may be released
to the public upon request provided the report is deidentified to remove all
names and other personally identifiable data, including any information from
witnesses and other person furnished to DHS as part of the investigation.
No attachments to the report will be released.
(3)
The reporter and the facility will be notified of
the results of DHS's investigation of a reported case of abuse, neglect, or
exploitation, whether DHS concluded that abuse, neglect, or exploitation occurred
or did not occur.
(4)
Upon written request of the person who is the subject
of the report of abuse, neglect, or exploitation or his legal representative,
DHS shall release to the person or his legal representative otherwise confidential
information relating to the final report. The request must specify the information
desired and be signed and dated by the individual or his legal representative.
The legal representative of a deceased person may make a written request for
this information. The legal representative of a deceased person must also
specify the reason the information is requested. Any legal representative
must include with the request sufficient documentation to establish his authority.
DHS shall edit the information before release to protect the confidentiality
of information related to the reporter's identify and to protect any other
individual whose safety or welfare may be endangered by disclosure.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 14, 1999.
TRD-9900234
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: May 1, 1999
For further information, please call: (512) 438-3765
40 TAC 98.102-98.104
The amendments are proposed under the Human Resources Code,
Chapter 103, which provides the department with the authority to license adult
day care facilities, and under the Human Resources Code, Title 2, Chapters
22 and 32, which provides the department with the authority to administer
public and medical assistance programs and under Texas Government Code §531.021,
which provides the Health and Human Services Commission with the authority
to administer federal medical assistance funds.
The amendments implement §§22.001-22.030, 32.001-32.042, and
103.001-103.011 of the Human Resources Code.
§98.102.Nonemergency Suspension.
(a)
The Texas Department of Human Services (DHS) may suspend
a facility's license when the facility's violation of the licensure rules
threatens to jeopardize the health and safety of
clients
[
(b)
(No change.)
(c)
The facility will be notified by certified mail of DHS's
intent to suspend the license, including the facts or conduct alleged to warrant
the suspension. The facility has an opportunity to show compliance with all
requirements of law for the retention of the license as provided in
§98.20
[
(d)
The facility will be notified by certified mail of DHS's
suspension of the facility's license. The facility has 15 days from receipt
of the certified mail notice to request a hearing in accordance with
Chapter 79 of this title, Subchapter Q (relating to Formal Appeals)
[
(e)
(No change.)
§98.103.Revocation.
(a)
[
(b)-(c)
(No change.)
(d)
The facility will be notified by certified mail of DHS's
intent to revoke the license, including the facts or conduct alleged to warrant
the revocation. The facility has an opportunity to show compliance with all
requirements of law for the retention of the license as provided in
§98.20
[
(e)
The facility has 15 calendar days from receiving the certified
mail notice of license revocation to request a hearing, in accordance with
[
§98.104.Emergency Suspension and Closing Order.
(a)
The Texas Department of Human Services (DHS) will suspend
a facility's license or order an immediate closing of
all or a
part
of the facility if:
(1)
(No change.)
(2)
the violation creates an immediate threat to the health
and safety of a
client
[
(b)-(c)
(No change.)
(d)
A licensee whose facility is closed under this section
is entitled to request an administrative hearing in accordance with
Chapter 79 of this title, Subchapter Q (relating to Formal Appeals)
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
January 14, 1999.
TRD-9900235
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: May 1, 1999
For further information, please call: (512) 438-3765
40 TAC §98.105
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department of Human Services or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Human Resources
Code, Chapter 103, which provides the department with the authority to license
adult day care facilities.
The repeal implements the Human Resources Code, Chapter 103, §§103.001-103.011.
§98.105.Informal Reconsideration.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 14, 1999.
TRD-9900236
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: May 1, 1999
For further information, please call: (512) 438-3765
§98.122, §98.123
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Department of Human Services or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the Human Resources
Code, Chapter 103, which provides the department with the authority to license
adult day care facilities.
The repeals implement the Human Resources Code, Chapter 103, §§103.001-103.011.
§98.122.Required Postings.
§98.123.Procedures for Inspection of Public Records.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 14, 1999.
TRD-9900237
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: May 1, 1999
For further information, please call: (512) 438-3765
40 TAC §§98.201-98.212
The new sections are proposed under the Human Resources Code,
Chapter 103, which provides the department with the authority to license adult
day care facilities, and under the Human Resources Code, Title 2, Chapters
22 and 32, which provides the department with the authority to administer
public and medical assistance programs and under Texas Government Code §531.021,
which provides the Health and Human Services Commission with the authority
to administer federal medical assistance funds.
The new sections implement §§22.001-22.030, 32.001-32.042, and
103.001-103.011 of the Human Resources Code.
§98.201.Eligibility Requirements for Participation.
(a)
Eligibility. The client must be Medicaid eligible (Title
XIX Day Activity and Health Services (DAHS)) or meet social services block
grant income eligibility guidelines and resource limits.
(b)
Medical criteria for DAHS. To be eligible for DAHS, the
applicant/client must have:
(1)
a medical diagnosis and physician's orders requiring care,
monitoring, or intervention by a licensed vocational nurse or a registered
nurse;
(2)
a related functional disability; and
(3)
one or more of the following personal care or restorative
needs which can be stabilized, maintained, or improved by participation in
DAHS:
(A)
Bathing, dressing, and grooming. The applicant/client may
need help with bathing, dressing, and routine hair and skin care.
(B)
Transfer and ambulation. The applicant/client may need
help with transferring from chair or commode or walking about.
(C)
Toileting. The applicant/client may need help with using
a bedpan, urinal, or commode; emptying a catheter or ostomy bag; or managing
incontinence of bowel or bladder. The applicant/client may require perineal
care or bowel or bladder training.
(D)
Feeding. The applicant/client may need feeding (for example,
gastric, ng tube, feeding pump) or help with eating.
(E)
Fluid intake. The applicant/client may need assistance
in maintaining adequate fluid intake.
(F)
Nutrition. The applicant/client may need therapeutic diet
or texture modification for treatment or control of an existing condition.
(G)
Medication. The applicant/client may require supervision
or administration of ordered medications or injectables.
(H)
Treatments. The applicant/client may require treatments
that include:
(i)
catheter care--routine or frequent care for indwelling
catheter;
(ii)
weight--measurement of weight related to monitoring a
specific condition;
(iii)
ostomy care--assistance or supervision of ostomy care
based on individual needs;
(iv)
recording of vital signs--taking and recording of vital
signs to monitor an existing condition or medications being administered;
(v)
diabetic tests--periodic testing of blood or urine for
sugar/acetone content or both;
(vi)
skin care--assistance with skin care including application
of lotions, observations, assessment, or treatment of skin conditions based
on physician's orders for prevention and healing decubiti and chronic skill
conditions; and
(vii)
dressings--dressing based on the physician's orders and
the application of sterile dressings and elastic stockings and bandages.
(I)
Restorative nursing procedures. The applicant/client requires
assistance with range-of-motion exercises (active or passive) or proper positioning.
(J)
Behavioral problems. The applicant/client may have behavioral
problems which can be managed by facility staff.
(c)
Prior approval of DAHS services. An individual seeking
initial prior approval for day activity and health services must have a physician's
order for the service. The physician cannot be the facility owner or have
a significant financial or contractual relationship with the facility.
§98.202.Program Overview.
(a)
A Day Activity and Health Services (DAHS) facility must:
(1)
contract with the Texas Department of Human Services (DHS)
to provide day activity and health services (DAHS);
(2)
provide services at least 10 continuous hours each
day, five days a week (Monday through Friday), except for published holidays;
(3)
serve eligible clients, unless a facility is at licensed
capacity;
(4)
participate in the Child and Adult Care Food Program
(CACFP). The facility must submit documentation of participation in the CACFP
to DHS. Documentation consists of a copy of the CACFP agreement and/or a copy
of the approval letter for participation in the CACFP;
(5)
advise the individual of his rights in a language
he understands and provide him with a signed copy. The facility must maintain
the original in the record; and
(6)
inform clients in writing about the facility's complaint
procedures within 10 calendar days of the initiation of service. The facility
must also date-stamp all written complaints received and maintain accessible
records of the complaint and resolution. The facility must register and evaluate
client complaints brought to the facility's attention within three days of
receipt of complaint. All incidents must be reported to the contract manager,
with a report on the resolution of the complaint, within three workdays of
resolution of the complaint. The facility must investigate and respond in
writing to all written complaints received from DHS staff within 14 days of
receipt of the complaint.
(b)
DHS reserves the right to deny any facility a contract
if it is not in the best interest of DHS.
§98.203.Written Referrals for Services.
(a)
Day activity and health services (DAHS) facilities receive
written referrals from caseworkers based on the following priorities:
(1)
client's choice;
(2)
physician's choice, if stated; and
(3)
rotation of eligible providers.
(b)
When a facility receives a referral from the caseworker,
the facility nurse must make every effort to request prior approval for the
client within 14 days of the referral date on the Texas Department of Human
Services' (DHS's) Approval for CCAD Services - Referral Response form.
(c)
If the facility cannot request prior approval within 14
days, the facility must notify the caseworker about the reason for delay.
This notification must be sent on DHS's Case Information form within 14 days
of the referral date.
(d)
Within the same 14 days of receipt of DHS's Approval for
CCAD Services - Referral Response form from the caseworker and before requesting
prior approval, the nurse must conduct a health assessment/plan of care with
the client, using DHS's Client Health Assessment/Plan of Care form. If the
client is unable to participate due to cognitive impairment, the client's
responsible party should participate.
(e)
If the nurse cannot conduct the health assessment within
14 days of the referral date, the facility must notify the caseworker about
the reason for delay on DHS's Case Information form within the 14-day period.
(f)
Within the same 14 days of receipt of DHS's Approval for
CCAD Services - Referral Response form from the caseworker, the nurse must
obtain a physician's order for the client by sending DHS's Physician's Order
for Day Activity and Health Services form to the client's physician. The nurse
sends a copy of DHS's Client Health Assessment/Plan of Care form to the physician.
(g)
If the facility cannot obtain physician's orders within
14 days of the referral date, the facility must notify the caseworker about
the reason for delay. The notification must be sent on DHS's Case Information
form within the 14-day period. DHS's Case Information form must include the
date of the health assessment/plan of care and must be dated after the health
assessment/plan of care date, if one has been conducted.
(h)
If the physician fails to date DHS's Physician's Order
for Day Activity and Health Services form or if the signature date is illegible,
the facility stamp-in date will be considered the date of the physician's
order. The date stamp must include the day, month, year, and the name of the
facility. An abbreviated name or initials are acceptable.
§98.204.Facility-Initiated Referrals.
(a)
The applicant may be admitted to a day activity and health
services facility as soon as verbal physician's orders are obtained if he
appears to:
(1)
be Medicaid eligible; and
(2)
meet the medical/functional need criteria based on
the information collected on the Texas Department of Human Services' (DHS's)
Client Health Assessment/Plan of Care form.
(b)
When a facility initiates a referral:
(1)
the facility interviews the applicant to determine whether
he appears to be Medicaid eligible. The facility determines Medicaid eligibility
by reviewing the information on the applicant's Medical Care Identification
Card;
(2)
the nurse:
(A)
conducts a health assessment/plan of care to determine
whether the applicant appears to have a medical need for the service. The
nurse determines medical need by completing DHS's Client Health Assessment/Plan
of Care form; and
(B)
obtains verbal or written physician orders, if the applicant
appears to meet the medical/functional need criteria;
(3)
the facility verbally notifies the DHS caseworker
or intake unit of the placement the day the applicant contacts the facility.
The facility follows up the notification in writing within seven days using
DHS's Case Information form. This verbal notification is a request for community
care for aged and disabled (CCAD) services.
(c)
The facility must request written prior approval for the
applicant from the regional nurse within 30 days from the date of the physician
orders.
(d)
If the facility fails to submit prior approval forms or
additional documentation within required time frames, or if the additional
documentation is not adequate, the regional nurse cancels the facility-initiated
prior approval and the facility is not reimbursed for services.
(e)
If DHS's Client Health Assessment/Plan of Care form or
Physician's Order for Day Activity and Health Services form is missing, or
if any of the critical omissions or errors stated in paragraphs (1)-(9) of
this subsection have occurred in the required documentation, the facility
cannot obtain prior approval.
(1)
The nurse fails to sign or date DHS's Client Health Assessment/Plan
of Care form or omits the registered nurse/licensed vocational nurse credentials
that should follow his signature.
(2)
Documentation on DHS's Client Health Assessment/Plan
of Care form does not support the medical eligibility criteria specified in
§98.201 of this title (relating to Eligibility Requirements for Participation).
(3)
Items A, B, in Sections II and III of DHS's Client
Health Assessment/Plan of Care form are not completed or completed incorrectly
and medical need cannot be determined.
(4)
DHS's Physician's Order for Day Activity and Health
Services form does not include the MD or DO credential of the physician who
signed the form.
(5)
DHS's Physician's Order for Day Activity and Health
Services form does not include the license number of the physician who signed
it.
(6)
The physician who signed the order is excluded from
participation in Medicare or Medicaid.
(7)
The physician's signature is not on DHS's Physician's
Order for Day Activity and Health Services form.
(8)
The physician's signature date is missing or illegible
and the facility's stamped date is missing from DHS's Physician's Order for
Day Activity and Health Services form.
(9)
The facility's stamped date used instead of the physician's
date on DHS's Physician's Order for Day Activity and Health Services form
does not include the provider agency's name, abbreviated name, or initials.
§98.205.Initiation of Services.
(a)
The facility must initiate services within seven days of
the beginning date of coverage in Item 4 of the Texas Department of Human
Services' (DHS's) Prior Approval/Confirmation of Services form.
(b)
If the facility does not initiate services within the seven-day
period, the facility must notify the caseworker, using DHS's Case Information
form, by the eighth day after the beginning date of coverage in Item 4 of
DHS's Prior Approval/Confirmation of Services form. DHS's Case Information
form must include the reasons for the delay and the date when services are
scheduled to begin.
(c)
The facility must complete and return DHS's Approval for
CCAD Services - Referral Response form, to the caseworker within 14 days from
the beginning date of coverage in Item 4 of DHS's Prior Approval/Confirmation
of Services form. The facility must indicate the date services were initiated,
the schedule for delivering services, and the total units authorized for the
client.
§98.206.Program Requirements.
The facility must provide services that include but are not limited
to:
(1)
Nursing services. Nursing services must include:
(A)
assessing, observing, evaluation, and documenting a client's
health condition, and instituting appropriate nursing intervention to stabilize
or improve a client's condition or prevent complications;
(B)
assisting the client order, maintain, or administer prescribed
medications or treatments, as indicated by physician's orders;
(C)
counseling the client on his health need and illness and
involving significant others in the discussions of his immediate and long-term
health goals; and
(D)
providing or supervising personal care services to enable
the client to restore, maintain, or improve his ability to perform personal
care tasks. For purposes of this requirement, personal care is defined as
assistance in dressing, eating, grooming, bathing, toileting, transferring/ambulation,
or assistance with self- administering medication.
(2)
Physical rehabilitative services. Physical rehabilitative
services must include:
(A)
restorative nursing; and
(B)
group and individual exercises, including range of motion
exercises.
(3)
Nutrition/food service. Nutrition/food service
in DAHS facilities is provided under Chapter 12, Subchapter A of this title
(relating to the Child and Adult Care Food Program (CACFP)) and must include:
(A)
one hot noon meal served between the hours of 11:00 a.m.
and 1:00 p.m. The meal must:
(i)
be suitable in quantity and adequacy to attain and maintain
nutritional requirements, including those of special needs clients. The CACFP
staff monitor the adequacy of a meal by totaling the amount of food produced
and cooked by the number of adults fed to determine if the average amount
of food meet the following food components: two ounces of meat, 1/2 cup of
fruit/vegetables, one cup of milk, and two servings of bread; and
(ii)
supply 1/3 of the recommended daily allowance for adults
as recommended by the United States Department of Agriculture;
(B)
special diets as required by the client's plan of care;
(C)
a supplementary mid-morning and mid-afternoon snack;
(D)
dietary counseling and nutrition education for the client
and his family; and
(E)
assisting the client with his meals if necessary. This
includes:
(i)
food texture modification, including grinding meats and
mashing vegetables for clients having trouble chewing; and
(ii)
food management, including spoon feeding, bread buttering,
and milk opening for clients with hand deformities, paralysis, or hand tremors.
(4)
Other supportive services in DAHS facilities.
Other supportive services must include:
(A)
community interaction, cultural enrichment, educational
or recreational activities, and other social activities on site or in the
community in a planned program to meet the social needs and interests of the
clients;
(B)
providing at least three social activities per day; and
(C)
posting a monthly activity calendar at least one week in
advance.
(5)
Transportation services in DAHS facilities.
(A)
Transportation services must include:
(i)
transportation to and from the facility; and
(ii)
transportation to and from a facility approved to provide
therapies, if the client requires specialized services on days of attendance
at the day activity and health services facility.
(B)
If the facility provides transportation for a client to
a non- therapy medical facility, the facility can claim the time spent in
transport as part of the unit of services.
(C)
If the facility does not provide transportation, the facility
must coordinate transportation with other resources.
(D)
Vehicles used for transportation services must be properly
operated and maintained and have proper heating and cooling systems to maintain
reasonable temperature levels inside the vehicle.
§98.207.Suspension of Day Activity and Health Services.
(a)
The facility must suspend services before the end of the
prior approval period if one or more of the circumstances specified in paragraphs
(1)-(10) of this subsection occur:
(1)
the client leaves the state or moves outside the geographic
area served by the facility;
(2)
the client dies;
(3)
the client is admitted to a hospital, nursing home,
state school, or state hospital;
(4)
the client requests that services end;
(5)
the physician requests that services end;
(6)
DHS denies the client's Medicaid/Title XX eligibility;
(7)
DHS enforces sanctions against the facility by terminating
the contract;
(8)
the client threatens the health and safety of himself
or others;
(9)
the client is absent from the facility for 15 consecutive
days;
(10)
the client becomes ineligible for Medicaid. Each
month the facility must verify that a client has a current Texas Department
of Human Services (DHS) Medical Care Identification Card.
(b)
No later than the first DHS workday after services are
suspended, the facility must verbally notify the caseworker or staff in the
caseworker's office about the reason the facility suspended services. Written
notification on DHS's Case Information form must be sent to the caseworker
within seven work days of the incident that was reported verbally.
§98.208.Notifications.
(a)
If a client becomes ill or injured at the facility, the
director/nurse must notify a relative or other responsible person the same
day of the occurrence. Clients with communicable diseases cannot attend the
facility until the physician has released the client. Examples of communicable
disease are lice and scabies.
(b)
No later than the first Texas Department of Human Services
(DHS) workday after becoming aware of changes in the client's status or condition,
the facility must verbally notify the caseworker or staff in the caseworker's
office about any change that may require a change in the client's plan of
care, units, or service termination. The facility must follow up this verbal
notification in writing, to the caseworker, using DHS's Case Information form.
Written notification must occur within seven days after verbal notification.
(c)
If a client is absent from a regularly scheduled program,
facility staff must contact the client or someone knowledgeable about his
condition the same day that the absence occurs. If facility staff are unable
to contact the client or someone knowledgeable about his condition, staff
document this in the client's record.
(d)
The facility must verbally notify DHS by the next DHS workday
and in writing to within seven days of verbal notification of the following
changes in facility operations:
(1)
change in operation, telephone number, and location of
administrative office;
(2)
change in hours of operation; and
(3)
change in director, activities director, nurse, or
membership of governing board.
§98.209.Record Maintenance.
(a)
Client information. The Day Activity and Health Services
(DAHS) facility must keep medical records and all other pertinent and identifying
information necessary for a complete client health/social record. The facility
must maintain the client's medical records for five years after the client
leaves the facility. The facility must ensure that each client's record contains
at least the following information:
(1)
the Texas Department of Human Services' (DHS's) Approval
for Community Care for Aged and Disabled (CCAD) Services - Referral Response
form;
(2)
DHS's Client Health Assessment/Plan of Care form;
(3)
DHS's Confirmation of Services to be Delivered form;
(4)
daily record of all treatments;
(5)
significant changes in the client's condition;
(6)
summary of any hospital stays while enrolled;
(7)
significant complaints and results of investigation
of complaints;
(8)
progress notes;
(9)
documentation that the client was notified of complaint
procedures and client rights; and
(10)
incident reports. Incidents include falls, arguments,
and allegations of abuse, neglect, or exploitation.
(b)
Financial records. The facility must maintain financial
records according to recognized fiscal and accounting procedures and according
to DHS procedures as stated in §69.205 of this title (relating to Contractor's
Records). The facility must keep the records current and available for review
at any time by authorized agents of DHS, the attorney general's Medicaid Fraud
Control Unit, the Texas Department of Health, and/or the United States Department
of Health and Human Services.
(c)
Personnel records. The facility must keep personnel records
in a central location in the facility. Personnel records include staff qualifications,
performance reports, attendance, and staff development records. The facility
must maintain these documents and records according to the retention requirements.
The facility must document staff coverage for days when regular staff are
away from the facility on sick or vacation leave.
(d)
Attendance records. The facility must use DHS forms to
maintain a daily record of attendance and transportation to and from the facility,
including the time each client began receiving services and the time he left
the facility's care. If transportation is provided by the facility, driver's
transportation records must be used. Arrival and departure times must be documented
for clients not using facility- provided transportation.
(e)
Transportation records. The facility driver must maintain
accurate daily transportation and mileage records, and records of expenses
for purchase of gas and oil.
§98.210.Administrative Errors and Corrections.
(a)
Administrative errors include, but are not limited to,
the following:
(1)
The facility enters a date of signature on the Texas Department
of Human Services' (DHS's) Daily Attendance Record form that is before the
date of the last day services are provided. DHS applies the error to the total
number of units reimbursed after the signature date.
(2)
The facility fails to sign DHS's Daily Attendance
Record form and the signature can be verified on DHS's Daily Transportation
Record form. DHS applies the error to the total number of units reimbursed
on the unsigned form.
(3)
The facility fails to list the client on DHS's Daily
Attendance Record form, but the client was listed on DHS's Daily Transportation
Record form. DHS applies the error to the total number of units reimbursed
for the period the client was left off the attendance record form.
(4)
The facility completes the total units of service
column and leaves the time in and time out columns blank on DHS's Daily Attendance
Record form, but the time in and time out can be verified on DHS's Daily Transportation
Record form. DHS applies the error to the total number of units reimbursed
in which the time in time out days were left blank.
(5)
The facility leaves the days of service blank on DHS's
Daily Attendance Record form, but the days of service can be verified elsewhere
on the form or on DHS's Daily Transportation Record form. DHS applies the
error to the total number of units reimbursed for the days left blank.
(6)
The facility fails to enter a date of signature on
DHS's Daily Attendance Record form to certify total number of units provided
to the client. DHS applies the error to the total number of units reimbursed
on the undated form.
(7)
The facility corrects the date of signature on DHS's
Daily Attendance Record form, but fails to initial the correction. DHS applies
the error to the number of units reimbursed after the earliest signature date.
(8)
The facility uses a signature stamp, but fails to
initial the stamped signature. DHS applies the error to the total number of
units reimbursed on the signature stamped form.
(9)
The facility makes an illegible entry or illegible
correction to any portion of record of time of DHS's Daily Attendance or Daily
Transportation Record form. DHS applies the error to the total number of units
reimbursed for the days in which entries are illegible.
(10)
The facility completes DHS's Daily Attendance or
Daily Transportation Record form in pencil. DHS applies the error to the total
number of units reimbursed that were completed in pencil.
(11)
The facility uses liquid paper or correction fluid
to correct an entry in DHS's Daily Attendance or Daily Transportation Record
form. DHS applies the error to the total number of units reimbursed that were
corrected for the billing period.
(b)
In the absence of acceptable secondary documentation, financial
errors include, but are not limited to, the errors specified in paragraphs
(1)-(3) of this subsection.
(1)
The facility is reimbursed for services, but DHS's Daily
Attendance and Daily Transportation Record form is missing for the period
for which services are reimbursed. DHS applies the error to the total number
of units reimbursed for the billing period.
(2)
The facility is reimbursed for units that exceed the
units recorded on DHS's Daily Attendance and Daily Transportation Record form.
DHS applies the error to the total number of units reimbursed in excess of
the units recorded.
(3)
The facility is reimbursed for units of service and
the client did not receive services or was Medicaid ineligible (not applicable
to Title XX clients). DHS applies the error to the total number of units reimbursed
for the days the client did not receive services or was Medicaid ineligible.
(c)
Corrections of critical omissions or errors in facility
documentation must be postmarked or date stamped as received by DHS within
14 days after the regional nurse mails DHS's Notification of Critical Omissions/Errors
in Required Documentation form to the facility. If the facility fails to meet
this time frame;
(1)
the date of prior approval can be no earlier than the postmark
or DHS-stamped date on the corrected documentation; or,
(2)
DHS may refer the client to another facility of the
client's choice.
(A)
If there is space in another facility, the regional nurse
notifies the caseworker by the next workday to give the client or client's
family/representative the option to be referred to another facility.
(B)
The caseworker will contact the client within three workdays
of being notified by the regional nurse and refers the client to another facility,
if the client or the client's family/representative prefers this option.
(d)
An exception of 12% of the paid unit rate is the administrative
portion applied to the unit of service.
§98.211.Billing and Payment.
(a)
The method of payment is a unit of authorized service and
is defined as half a day. One unit of service constitutes three hours but
less than six hours of covered services provided by the facility. Six hours
or more of service constitutes two units of service. Time spent in approved
transportation provided by the facility shall be counted in the unit of service.
(b)
The facility is not entitled to payment if:
(1)
the facility fails to submit prior approval forms or supporting
documentation to the regional nurse within the required time frames for facility
initiated referrals;
(2)
the facility did not maintain the staff-client ratio
for one or more days;
(3)
the facility exceeded its license capacity; or
(4)
the facility's monthly claims do not correspond to
the facility's service authorizations and DHS's Daily Attendance/Daily Transportation
Record form.
§98.212.Sanctions.
(a)
A sanction may be imposed even if none of the administrative
actions listed in §79.2105 of this title (relating to Grounds for Fraud
Referral and Administrative Sanction) have been imposed.
(b)
The Texas Department of Human Services (DHS) can deny and
recoup funds from a facility for the days it exceeded its licensed capacity.
The amount denied or recouped is two units of service (regardless of the number
of units actually provided) for every individual (client, applicant, private
pay, etc.) that exceeded the facility license capacity.
(c)
In addition to the reasons specified in §79.2105 of
this title (relating to Grounds for Fraud Referral and Administrative Sanction),
DHS may take sanctions against the facility for failure to acknowledge, within
the required time frame, receipt of the Day Activity and Health Services Provider
Manual and revisions, contract amendments, and policy clarifications.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
January 14, 1999.
TRD-9900238
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: May 1, 1999
For further information, please call: (512) 438-3765
§§98.6901-98.6907
The new sections are proposed under the Human Resources Code,
Chapter 103, which provides the department with the authority to license adult
day care facilities, and under the Human Resources Code, Title 2, Chapters
22 and 32, which provides the department with the authority to administer
public and medical assistance programs and under Texas Government Code §531.021,
which provides the Health and Human Services Commission with the authority
to administer federal medical assistance funds.
The new sections implement §§22.001-22.030, 32.001-32.042, and
103.001-103.011 of the Human Resources Code.
§98.6901.Introduction.
Day activity and health care facilities provide noninstitutional care
to clients residing in the community through rehabilitative nursing and social
services. The Texas Department of Human Services (DHS) reimburses Day Activity
and Health Services provider agencies for the services they provide to clients.
§98.6902.Cost Reporting Procedures.
(a)
Cost reports pertaining to providers' fiscal years ending
in calendar year 1994, 1995, or 1996 will be governed by the information in
this section, and the information in §24.101(b) of this title (relating
to General Specifications and Methodology). In addition, the Texas Department
of Human Services (DHS) applies the general principles of cost determination
as specified in §20.101 of this title (relating to Introduction). Cost
reports pertaining to providers' fiscal years ending in calendar year 1997
and subsequent years will be governed by the information in §98.6907
of this title (relating to Reimbursement Methodology for Day Activity and
Health Services: 1997 and Subsequent Cost Reports).
(b)
Provider agencies must submit financial and statistical
information at least annually on cost report forms provided by DHS or on facsimiles
which are formatted according to DHS specifications and are preapproved by
DHS staff. Providers must complete the cost report according to the rules
and specifications set forth in this section.
(1)
Cost report due date. Provider agencies must submit cost
reports to DHS no later than 90 days following receipt of the cost report
forms.
(2)
Extension of due date. DHS may grant extensions of
due dates for good cause. A good cause is defined as one that the provider
agency could not reasonably be expected to control. Provider agencies must
submit requests for extensions in writing to DHS before the cost report due
date. Rate Analysis Department staff respond to requests within 10 workdays
of receipt.
(3)
Reporting period. The provider agency must prepare
the cost report to reflect the activities of the provider agency during the
previous fiscal year. Cost reports may be required for other periods at the
discretion of the department. Should a provider agency terminate its contract
(provider agreement) with the department, a cost report must be submitted
for that period beginning with the first day not included in a previous cost
reporting period and ending with the effective date of termination of its
provider agreement.
(4)
Failure to file an acceptable cost report. Failure
to file a cost report or cost report supplement according to all applicable
rules and instructions constitutes an administrative contract violation. In
the case of an administrative contract violation, procedural guidelines and
informal reconsideration and/or appeal processes are specified in §20.111
of this title (relating to Administrative Contract Violations).
(5)
Accounting requirements. The provider agency must
ensure that financial and statistical information submitted in cost reports
is based upon the accrual method of accounting, except for governmental institutions
operated on the cash method of accounting. The provider agency's treatment
of any financial or statistical item must reflect the application of the generally
accepted accounting principles (GAAP) approved by the American Institute of
Certified Public Accountants.
(6)
Allocation method. If allocation of cost is necessary,
provider agencies must use reasonable methods of allocation. DHS adjusts allocated
costs if the department considers the allocation method to be unreasonable.
The provider agency must retain workpapers supporting allocations.
(7)
Cost report certification. Provider agencies must
certify the accuracy of cost reports submitted to DHS in the format specified
by DHS. Provider agencies may be liable for civil and/or criminal penalties
in the case of misrepresented or falsified information.
(8)
Cost report supplements. The department may at times
require additional financial and statistical information other than the information
contained in the cost report.
(9)
Reviews and field audits of cost reports. DHS performs
desk reviews or field audits of cost reports of contracted providers. The
frequency and nature of the field audit are determined by DHS to ensure the
fiscal integrity of the program. Desk reviews and field audits will be conducted
in accordance with §20.106 of this title (relating to Basic Objectives
and Criteria for Audit and Desk Review of Cost Reports), and providers will
be notified of the results of a desk review or a field audit in accordance
with §20.107 of this title (relating to Notification of Exclusions and
Adjustments). Providers may request an informal review and, if necessary,
an administrative hearing to dispute an action taken by DHS under §20.110
of this title (relating to Informal Reviews and Formal Appeals).
(10)
Record keeping requirements. Provider agencies must
maintain records according to the requirements stated in §69.205 of this
title (relating to Contractor's Records). Provider agencies must ensure that
records are accurate and sufficiently detailed to support the financial and
statistical information contained in cost reports.
(11)
Failure to maintain adequate records. Failure to
maintain adequate records to support the financial and statistical information
reported in cost reports constitutes an administrative contract violation.
In the case of an administrative contract violation, procedural guidelines
and informal reconsideration and/or appeal processes are specified in §20.111
of this title (relating to Administrative Contract Violations).
§98.6903.Reimbursement Determination.
(a)
General requirements. Cost reports pertaining to providers'
fiscal years ending in calendar year 1994, 1995, or 1996 will be governed
by the information in this section, and the information in §24.101(b)
of this title (relating to General Specifications and Methodology). In addition,
the Texas Department of Human Services (DHS) applies the general principles
of cost determination as specified in §20.101 of this title (relating
to Introduction). Cost reports pertaining to providers' fiscal years ending
in calendar year 1997 and subsequent years will be governed by the information
in §98.6907 of this title (relating to Reimbursement Methodology for
Day Activity and Health Services: 1997 and Subsequent Cost Reports).
(b)
Exclusion of cost reports.
(1)
Providers are responsible for reporting only allowable
costs on the cost report, except where cost report instructions indicate that
other costs are to be reported in specific lines or sections. Only allowable
cost information is used to determine recommended reimbursement. DHS excludes
from reimbursement determination any unallowable expenses included in the
cost report and makes the appropriate adjustments to expenses and other information
reported by providers. The purpose is to ensure that the database reflects
costs and other information which are necessary for the provision of services
and are consistent with federal and state regulations.
(2)
Individual cost reports may not be included in the
database used for reimbursement determination if:
(A)
there is reasonable doubt as to the accuracy or allowability
of a significant part of the information reported; or
(B)
an auditor determines that reported costs are not verifiable.
(3)
When material pertinent to proposed reimbursements
is made available to the public, the material will include the number of cost
reports eliminated from reimbursement determination for the reason stated
in paragraph (2)(A) of this subsection.
(c)
Reimbursement determination. DHS determines reimbursement
in the following manner.
(1)
All contracted providers must submit a cost report unless
the number of days between the date the first DHS client received services
and the provider's fiscal year end is 30 days or fewer. The provider may be
excused from submitting a cost report if circumstances beyond the control
of the provider make cost report completion impossible, such as the loss of
records due to natural disasters or removal of records from the provider's
custody by any governmental entity. Requests to be excused from submitting
a cost report must be received by the DHS's Rate Analysis Department before
the due date of the cost report.
(2)
DHS staff allocate payroll taxes and employee benefits
to each salary line item on the cost report on a pro rata basis based on the
portion of that salary line item to the amount of total salary expense. The
employee benefits for administrative staff are allocated directly to the corresponding
salaries for those positions. The allocated payroll taxes are Federal Insurance
Contributions Act (FICA) or Social Security, Workers' Compensation Insurance
(WCI), Federal Unemployment Tax Act (FUTA), and the Texas Unemployment Compensation
Act (TUCA).
(3)
Each provider's total reported allowable costs, excluding
depreciation and mortgage interest, are projected from the historical cost-reporting
period to the prospective reimbursement period as described in §20.108
of this title (relating to Determination of Inflation Indices). The prospective
reimbursement period is the period of time that the reimbursement is expected
to be in effect.
(4)
DHS may adjust reimbursement to compensate for anticipated
future changes in the program requirements in accordance with §20.109
of this title (relating to Adjusting Reimbursement When New Legislation, Regulations,
or Economic Factors Affect Costs).
(5)
DHS staff combine allowable reported costs into the
following six cost areas.
(A)
Salaries and benefits cost area includes the salaries,
wages, payroll taxes, and benefits of Day Activity and Health Services direct
service personnel.
(B)
Transportation cost area includes the rental or lease of
transportation equipment and operating costs. The driver's salary is not included
in this cost area.
(C)
Food and food service cost area includes the cost of meals,
related supplies, dieticians, and food servers.
(D)
Building, equipment, and capital cost area includes all
building operation expenses.
(E)
Utility cost area includes all water, electric, gas, and
telephone expenses.
(F)
Direct programmatic expenses cost area includes the costs
of medical supplies, activity expenses, and administration, including administrative
staff.
(6)
Allowable costs are totaled by cost area and
then divided by the total units of service for the reporting period to determine
the cost per unit of service. DHS staff rank from low to high all provider
agencies' projected costs per unit of service in each cost area. The median
projected unit of service cost from each cost area is then determined. Those
median projected unit of service costs from each cost area are totaled. That
resulting total is multiplied by 1.044 and becomes the recommended reimbursement.
(d)
Authority to determine reimbursement. The authority to
determine reimbursement is specified in §20.101 of this title (relating
to Introduction).
§98.6904.Allowable Cost Information.
(a)
General requirements. Cost reports pertaining to providers'
fiscal years ending in calendar year 1994, 1995, or 1996 will be governed
by the information in this section, and the information in §24.101(b)
of this title (relating to General Specifications and Methodology). In addition,
the Texas Department of Human Services (DHS) applies the general principles
of cost determination as specified in §20.101 of this title (relating
to Introduction). Cost reports pertaining to providers' fiscal years ending
in calendar year 1997 and subsequent years will be governed by the information
in §98.6907 of this title (relating to Reimbursement Methodology for
Day Activity and Health Services: 1997 and Subsequent Cost Reports).
(b)
Factors affecting allowable costs. To be allowable under
this program, costs must be:
(1)
necessary and reasonable for the proper and efficient administration
of the program to deliver services for which the department has contracted;
(2)
authorized or not prohibited under state or local
laws or regulations;
(3)
consistent with any limitations or exclusions described
in this section, federal or state laws or other governing limitations as to
types or amounts of cost items:
(4)
consistent with policies, regulations, and procedures
that apply uniformly to both the Day Activity and Health Services Program
and other activities of the organization of which the provider agency is a
part;
(5)
treated consistently using generally accepted accounting
principles appropriate to the circumstances;
(6)
not allocable to or included as a cost of any other
program in either the current or a prior period; and
(7)
the net of all applicable credits.
(c)
Definition of reasonableness. A cost is reasonable if,
in its nature and amount, it does not exceed that which would be incurred
by an ordinarily prudent person in the conduct of competitive business. In
determining the reasonableness of a given cost, the department considers the
following:
(1)
whether the cost is of a type generally recognized as ordinary
and necessary for the operation of the business or the performance under the
contract;
(2)
the restraints or requirements imposed by generally
accepted sound business practices, arm's length bargaining, federal and state
laws and regulations, and contract terms and specifications; and
(3)
the action that a prudent person would take in the
circumstances, considering his responsibilities to the public, the government,
his employees, clients, share-holders, or members, and the fulfillment of
the purpose for which the business was organized.
§98.6905.List of Allowable Costs.
(a)
Cost reports pertaining to providers' fiscal years ending
in calendar year 1994, 1995, or 1996 will be governed by the information in
this section, and the information in §24.101(b) of this title (relating
to General Specifications and Methodology). In addition, the Texas Department
of Human Services (DHS) applies the general principles of cost determination
as specified in §20.101 of this title (relating to Introduction). Cost
reports pertaining to providers' fiscal years ending in calendar year 1997
and subsequent years will be governed by the information in §98.6907
of this title (relating to Reimbursement Methodology for Day Activity and
Health Services: 1997 and Subsequent Cost Reports).
(b)
The following list of allowable costs is not comprehensive,
but rather serves as a general guide, and serves to clarify certain key expense
areas. The absence of a particular cost does not necessarily mean that it
is not an allowable cost.
(1)
Compensation of Day Activity and Health Services (DAHS)
employees. Only those employees who provide services directly to DAHS participants,
such as the director, social service activities coordinator, registered nurse,
vocational nurse, attendant, driver, and food service personnel receive compensation,
which includes:
(A)
wages and salaries. This can include deferred compensation,
overtime pay, incentive pay and bonuses or any other monies subject to withholding
taxes and Federal Insurance Contributions Act (FICA) deductions.
(B)
payroll taxes and insurance. This includes Federal Insurance
Contributions Act (FICA or social security), unemployment compensation insurance,
workmen's compensation insurance.
(C)
employee benefits. This includes employer paid health and
life insurance premiums, disability insurance for employees, employer contributions
to employee retirement accounts, uniform/clothing allowances, and meals provided
to employees as part of an employment contract.
(2)
Transportation. Expenses must be directly related
to the provision of transportation services for DAHS recipients. These expenses
include the rental, lease, or contract costs of transportation equipment,
depreciation, and operating/maintenance costs. Mileage is allowable if there
is adequate documentation of the mileage and if the expense was related to
delivery of services for which the department has contracted.
(3)
Food and food services. Cost of meals and snacks must
be for participants in the DAHS program only. This includes food and nonalcoholic
beverages, food service supplies, and cooking utensils expenses.
(4)
Medical equipment and supplies. These are allowable
costs if they are related to the services for which the department has contracted.
This may include, but is not limited to, supplies and equipment considered
necessary to perform client assessments, medication administration, and nursing
treatment.
(5)
Building, equipment and capital expenses.
(A)
Depreciation and amortization expense. Property owned by
the provider and improvements to owned, leased, or rented property valued
at more than $500 at the time of purchase must be depreciated or amortized,
using the straight-line method.
(i)
Buildings. Allowable depreciation is calculated by deducting
the estimated salvage value from the historical cost and dividing the result
by the asset's remaining years of useful life.
(ii)
Building equipment. Allowable items for depreciation include
air conditioning units, trade fixtures, furnaces, chairs, tables, beds, building
and grounds improvements.
(B)
Rental and lease expense. Rental and lease expense paid
to a related party is limited to the lower one of these two costs: the actual
cost to the related party or the actual cost if rented or purchased elsewhere.
This includes buildings, building equipment, and furniture.
(C)
Interest expense.
(i)
Interest expense is allowable on loans for the acquisition
of allowable items, subject to all of the requirements for allowable costs
and the following:
(I)
the loan must be evidenced in writing; and
(II)
the loan must be made in the name of the provider entity
as maker or comaker of the note.
(ii)
Interest expense on related-party loans is limited to
the lesser of:
(I)
the cost to the provider entity, which is the cost to the
related party; or
(II)
the prevailing national average prime interest rate during
the year in which the loan contract was finalized, as reported by the U. S.
Department of Commerce, Bureau of Economic Analysis, in the Survey of current
Business and the Business conditions Digest.
(D)
Tax expense. This includes ad valorem, real and personal
property taxes, motor vehicle registration fees, sales taxes, Texas corporate
franchise taxes, and organization filing fees.
(E)
Insurance expense. This includes facility fire and casualty,
professional liability and malpractice, and transportation equipment liability
insurance.
(6)
Utilities expense. This includes electricity
and natural gas, water, waste water, garbage collection, and telephone.
(7)
Materials and supplies. These include office, activities,
and educational supplies.
(8)
Training expenses. These are limited to direct costs
for travel, lodging, food, registration fees for personnel who provide services
directly to DAHS recipients. Training must be related directly to the care
of recipients in a DAHS facility.
(9)
Contract services provided by outside vendors. This
includes laundry and linen service, janitorial service, plant operation and
maintenance expenses, and professional services such as those of accountants
and attorneys.
§98.6906.Unallowable Costs.
(a)
Cost reports pertaining to providers' fiscal years ending
in calendar year 1994, 1995, or 1996 will be governed by the information in
this section, and the information in §24.101(b) of this title (relating
to General Specifications and Methodology). In addition, the Texas Department
of Human Services (DHS) applies the general principles of cost determination
as specified in §20.101 of this title (relating to Introduction). Cost
reports pertaining to providers' fiscal years ending in calendar year 1997
and subsequent years will be governed by the information in §98.6907
of this title (relating to Reimbursement Methodology for Day Activity and
Health Services: 1997 and Subsequent Cost Reports).
(b)
Unallowable costs are expenses incurred by a provider agency
which are not directly or indirectly related to the provision of contracted
services according to applicable laws, rules, and standards. A provider agency
may expend funds on unallowable cost items, but those costs must not be included
in the cost report and are not used in calculating a reimbursement recommendation.
The following list is a general guide to the various unallowable costs frequently
encountered in cost reports submitted by provider agencies and is not intended
to be inclusive of all possible unallowable costs:
(1)
advertising expenses other than those for employee recruitment,
yellow page listings no larger than one column width and one inch length,
and advertising to meet statutory or regulatory requirements;
(2)
allowances for bad debts or other similar accounts;
(3)
business expenses not related to the provision of
services for which the department has contracted;
(4)
contributions to political activities or contributions
to charity;
(5)
corporate headquarters expenses that are not directly
involved in providing services or supplies used by the Day Activity and Health
Services agency staff in normal operations related to day activity and health
services;
(6)
depreciation expenses other than those based on straight-line
depreciation;
(7)
discounts for administrative reasons; courtesy, cash,
trade, and quantity discounts; rebates; or other discounts granted;
(8)
dues and membership fees to organizations whose primary
emphasis is not related to the services for which the department has contracted;
(9)
entertainment expenses, except for entertainment which
is reported as an employee benefit;
(10)
expenses incurred for services not related to the
provision of services for which the department has contracted;
(11)
expenses which are not the legal obligation of the
provider agency;
(12)
expenses of donated items, including depreciation
and amortization of the value of the donations;
(13)
fees and travel expenses for corporation or association
board of directors;
(14)
partnership or corporation filing fees;
(15)
fines and other penalties for violation of statutes
or ordinances; penalties for late payment of taxes, utilities, mortgages,
loans, and other similar penalties;
(16)
franchise fees;
(17)
fund-raising and promotion expenses; public relations
expenses;
(18)
expenses for life insurance premiums where the beneficiary
is the provider organization unless life insurance is a requirement of a loan
agreement and the loan is related to client care;
(19)
interest expenses on loans for assets not related
to the delivery of services for which the department has contracted; interest
expense must be reduced or offset by interest income except interest income
from funded depreciation accounts or qualified pension funds;
(20)
personal compensation not related to the delivery
of services for which the department has contracted;
(21)
personal expenses not related to the delivery of
services for which the department has contracted;
(22)
physician's fees for completion of physician orders;
(23)
expenses for the purchase of services, facilities,
or supplies from related organizations or parties if the expenses exceed the
lower of the cost to the related party or organization or the price of comparable
services, facilities, or supplies purchased in an arm's length transaction;
(24)
rental or lease expense on any item not related to
the delivery of services for which the department has contracted;
(25)
tax expense for federal, state, or local income tax;
any tax levied on assets not related to the delivery of services for which
the department has contracted;
(26)
values assigned to the services of unpaid workers
or volunteers;
(27)
building depreciation expenses based on less than
a 30-year life;
(28)
contributions to self-insurance funds that do not
represent payment on current liabilities;
(29)
expenses that cannot be adequately documented;
(30)
forms of compensation that are not clearly enumerated
to dollar amount or that represent profit distributions;
(31)
insurance premiums pertaining to items of unallowable
cost;
(32)
transportation expenses for vehicles which are not
generally suited to functions related to the provision of services for which
the department has contracted. Mileage expense may be included at a cost per
mile not to exceed the current reimbursement rate set by the legislature for
state employee travel; and
(33)
costs for which the provider received federal funds,
other than United States Department of Agriculture (USDA) funds, which should
have been offset.
§98.6907.Reimbursement Methodology for Day Activity and Health Services: 1997 and Subsequent Cost Reports.
(a)
Day Activity and Health Care Services. Day activity and
health care facilities provide noninstitutional care to clients residing in
the community through rehabilitative nursing and social services. The Texas
Department of Human Services (DHS) reimburses Day Activity and Health Services
(DAHS) provider agencies for the services they provide to clients.
(b)
General requirements. For the completion and submittal
of cost reports pertaining to providers' fiscal years ending in calendar year
1997 and subsequent years, providers must apply the information in this section.
DHS applies the general principles of cost determination as specified in §20.101
of this title (relating to Introduction).
(c)
Cost-reporting guidelines. Providers must follow the cost-
reporting guidelines as specified in §20.105 of this title (relating
to General Reporting and Documentation Requirements, Methods, and Procedures).
(d)
Exclusion of cost reports.
(1)
Providers are responsible for reporting only allowable
costs on the cost report, except where cost report instructions indicate that
other costs are to be reported in specific lines or sections. Only allowable
cost information is used to determine recommended reimbursement. DHS excludes
from reimbursement determination any unallowable expenses included in the
cost report and makes the appropriate adjustments to expenses and other information
reported by providers. The purpose is to ensure that the database reflects
costs and other information which are necessary for the provision of services
and are consistent with federal and state regulations.
(2)
Individual cost reports may not be included in the
database used for reimbursement determination if:
(A)
there is reasonable doubt as to the accuracy or allowability
of a significant part of the information reported; or
(B)
an auditor determines that reported costs are not verifiable.
(3)
When material pertinent to proposed reimbursements
is made available to the public, the material will include the number of cost
reports eliminated from reimbursement determination for the reason stated
in paragraph (2)(A) of this subsection.
(e)
Review of cost reports. DHS staff perform either desk reviews
or field audits of all contracted providers. The frequency and nature of the
field audits are determined by DHS to ensure the fiscal integrity of the program.
Desk reviews and field audits will be conducted in accordance with §20.106
of this title (relating to Basic Objectives and Criteria for Audit and Desk
Review of Cost Reports), and providers will be notified of the results of
a desk review or a field audit in accordance with §20.107 of this title
(relating to Notification of Exclusions and Adjustments). Providers may request
an informal and, if necessary, an administrative hearing to dispute an action
taken by DHS under §20.110 of this title (relating to Informal Reviews
and Formal Appeals).
(f)
Reimbursement determination. DHS determines reimbursement
in the following manner.
(1)
All contracted providers must submit a cost report unless
the number of days between the date the first DHS client received services
and the provider's fiscal year end is 30 days or fewer. The provider may be
excused from submitting a cost report if circumstances beyond the control
of the provider make cost-report completion impossible, such as the loss of
records due to natural disasters or removal of records from the provider's
custody by any governmental entity. Requests to be excused from submitting
a cost report must be received by the DHS's Rate Analysis Department before
the due date of the cost report.
(2)
DHS staff allocate payroll taxes and employee benefits
to each salary line item on the cost report on a pro rata basis based on the
portion of that salary line item to the amount of total salary expense. The
employee benefits for administrative staff are allocated directly to the corresponding
salaries for those positions. The allocated payroll taxes are Federal Insurance
Contributions Act (FICA) or Social Security, Workers' Compensation Insurance
(WCI), Federal Unemployment Tax Act (FUTA), and the Texas Unemployment Compensation
Act (TUCA).
(3)
DHS staff project all allowable expenses, excluding
depreciation and mortgage interest, for the period from each provider's reporting
period to the next ensuing reimbursement period. DHS staff determine reasonable
and appropriate economic adjusters as described in §20.108 of this title
(relating to Determination of Inflation Indices) to calculate the projected
expenses. DHS staff also adjust reimbursement if new legislation, regulations,
or economic factors affect costs as specified in §20.109 of this title
(relating to Adjusting Reimbursement When New Legislation, Regulations, or
Economic Factors Affect Costs).
(4)
DHS staff combine allowable reported costs into the
following six cost areas:
(A)
Salaries and benefits cost area includes the salaries,
wages, payroll taxes, and benefits of Day Activity and Health Services direct
service personnel and drivers.
(B)
Transportation cost area includes the rental or lease of
transportation equipment and operating costs. The driver's salary is not included
in this cost area.
(C)
Food and food service cost area includes the cost of meals,
related supplies, dieticians, and food servers.
(D)
Building, equipment, and capital cost area includes all
building operation expenses.
(E)
Utility cost area includes all water, electric, gas, and
telephone expenses.
(F)
Direct programmatic expenses cost area includes the costs
of medical and activity supplies, and administration, including administrative
staff.
(5)
Allowable costs are totaled by cost area and
then divided by the total units of service for the reporting period to determine
the cost per unit of service. DHS staff rank from low to high all provider
agencies' projected costs per unit of service in each cost area. The median
projected unit of service cost from each cost area is then determined. Those
median projected unit of service costs from each cost area are totaled. That
resulting total is multiplied by 1.044 and becomes the recommended reimbursement.
(6)
The reimbursement determination authority is specified
in §20.101 of this title (relating to Introduction).
(g)
Allowable and unallowable costs. Providers must follow
the guide- lines specified in §20.102 of this title (relating to General
Principles of Allowable and Unallowable Costs) in determining whether a cost
is allowable or unallowable. Providers must follow the guide- lines for allowable
and unallowable costs specified in §20.103 of this title (relating to
Specifications for Allowable and Unallowable Costs).
(h)
DAHS-specific allowable costs. Allowable costs specific
to the DAHS program are:
(1)
certain medical equipment and supplies, if they are related
to the services for which DHS has contracted. This may include, but is not
limited to, supplies and equipment considered necessary to perform client
assessments, medication administration, and nursing treatment.
(2)
transportation costs if they are related to the services
for which DHS has contracted. This includes the costs of garaging a vehicle
that is primarily used to transport clients to and from the DAHS center. The
vehicle may be garaged off-site of the center for security reasons or for
route efficiency management. In these cases of off-site vehicle garaging,
a mileage log is not required if the vehicle is not used for personal use
and is used solely (100%) for the delivery of DAHS services.
(i)
DAHS-specific unallowable costs. Unallowable costs specific
to the DAHS program are:
(1)
physician's fees for completion of physician orders; and
(2)
costs for which the provider received federal funds
which should have been offset as specified in §20.103(b)(15)(B) of this
title (relating to Specification for Allowable and Unallowable Costs).
(j)
Reporting revenue. Revenue must be reported on the cost
report according to §20.104 of this title (relating to Revenue).
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
January 14, 1999.
TRD-9900239
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: May 1, 1999
For further information, please call: (512) 438-3765
Chapter 114.
Transition Planning Program
Subchapter B. Contracting
Subchapter C. Eligibility
Subchapter D. Facility Staffing Requirements
Subchapter E. Service Requirements
Subchapter F. Billing
Subchapter G. Recordkeeping Requirements
Subchapter H. Monitoring/Quality Assurance/Audits
Subchapter I. Sanctions
Subchapter J. Reimbursement Methodology for Day Activity and Health Services
Chapter 98.
Adult Day Care Facilities
A building occupied by an adult day care program.
]
Aid to Families with Dependent Children
],
Food Stamps); and
resident
] services. Management
services do not include contracts solely for maintenance, laundry, or food
services.
Subchapter B. Application Procedures
or governmental unit, acting jointly or
severally,
] must be licensed to establish [
, conduct
] or
operate an adult day care
[
maintain a
] facility in
Texas
[
this state
].
(department)
].
(c)
] An applicant for a license
must affirmatively show the following:
this state
] or any other state;
D
] of this chapter; and
(e)
] A license
will
[
shall
] be issued to a facility meeting all requirements of this chapter
and
will
[
shall
] be valid for one year. [
Each license
shall specify the
]
The
maximum allowable number of clients
[
to be cared for at any one time. No greater number of clients shall
be kept at any one time than is authorized by the license
]
specified
on the license may not be exceeded
.
(f)
] The license must be posted
in the area where clients are admitted and accessible to them and/or their
legal guardians.
DHS
] regarding the status of compliance
with local codes, ordinances, or regulations. [
Local health authority
comments and recommendations must be received by DHS within ten days after
the date of the sponsor's notice of the fire marshal or building code authority
approval for occupancy. The local health authority may recommend that a state
license be issued or denied; however, the final decision on licensure status
remains with DHS.
]
DHS
].
DHS's LTC-R Licensing Section
[
DHS
] must provide the license holder with the application form, and DHS
must notify the local fire marshal and the local health authority of the request.
The license holder must arrange for the inspection of the facility by the
local fire marshal. [
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. The local health authority may provide recommendations
to DHS regarding the status of compliance with local codes, ordinances, or
regulations. Local health authority comments and recommendations must be received
within ten days after the date of the facility's notice of the local fire
marshal or building code authority approval. The local health authority may
recommend that an increase in capacity be granted or denied; however, the
final decision on the increase remains with DHS.
]
The facility
must send DHS's LTC-R Licensing Section a copy of the written notice sent
to the local health authority notifying them of the increase in capacity.
DHS will approve the application only if the facility if 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.
Local authority recommendations
must be received within ten days of the date of the letter from the new owner
or date of change of ownership, whichever is later, if the recommendations
are to be considered by DHS.
]
Local
health authority comments and recommendations must be received at least 30
days prior to expiration of the license for consideration by DHS.
]
An applicant must file
with DHS an application which must contain:
]
(5)
]
For
[
for
] initial applications and change of ownership only, evidence of
the right to possession of the facility at the time the application will be
granted, which may be satisfied by the submission of applicable portions of
a lease agreement, deed or trust, or appropriate legal document
, must
be filed with DHS
. The names and addresses of any persons or organizations
listed as owner of record in the real estate, including the buildings and
grounds appurtenant to the buildings, must be disclosed to DHS
.
[
;
]
(6)
]
The
[
the
] certificate of good standing issued by the Comptroller of Public
Accounts
must be filed for an initial application, a change of ownership,
or a renewal.
[
; and
]
(7)
]
The
[
the
] certificate of incorporation issued by the Secretary of State for
a corporation or a copy of the partnership agreement for a partnership
must be filed for an initial application or a change of ownership
.
(7)
(f)
]
License issued in fiduciary
capacity.
The provisions of this section do not apply to a bank, trust
company, financial institution, title insurer, escrow company, or underwriter
title company to which a license is issued in a fiduciary capacity except
for provisions that require disclosure relating to the manager of the facility.
(d)
] The application for renewal
must contain the same information required for an original application
and
[
as well as payment of
] the annual licensing fees.
(e)
] The renewal of a license may
be denied for the same reasons an original application for a license may be
denied (see §98.19 of this title (relating to Criteria for Denying a
License or Renewal of a License)).
§98.42
] of this title (relating
to Program Requirements)) for
approval by the Long Term Care- Regulatory
(LTC-R) Regional Office,
Texas Department of Human Services (DHS)
,
[
approval
] within 30 days of the change. If the facility
director leaves, a facility director must be in place within 30 days of such
vacancy.
§98.42
] of this
title (relating to Program Requirements)) for approval within 30 days of the
change. A facility activities director must be in place within 30 days of
such vacancy.
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 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.
Reimbursement of fees.
]
(1)
]
(2)
] 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.
(3)
] If the request for full reimbursement
is denied, the applicant may appeal directly to the commissioner 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
director 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.
§§98.41-98.44
]
of this title (relating to General Requirements
and
[
,
]
Program Requirements
)
,
and §§98.42-98.43 of this
title (relating to
Safety [
,
] and Sanitation) including,
but not limited to:
§98.20
] of this title (relating to License Fees); and
§§79.1601-79.1614
of this title (relating to Formal Hearings)
].
Subchapter C. Standards for Adult Day Care and Adult Day Health Care Facilities
Subchapter C. Facility Construction Procedures
Subchapter D. Facility Construction Procedures
Subchapter D. Licensure and Program Requirements
Subchapter E. Inspections, Surveys, and Visits
Texas Department of
Human Services (DHS)
] inspection and survey personnel will perform inspections
and surveys, follow-up visits, complaint investigations, investigations of
abuse or neglect, and other contact visits [
from time to time as they
deem appropriate or
] as required for carrying out the responsibilities
of licensing.
routing
] or nonroutine,
made for the purpose of determining the appropriateness of
client
[
resident
] care and day-to-day operations of a facility will be
unannounced. Any exceptions must be justified.
consultation visits to determine how a physical plant may be expanded
or upgraded and visits to determine the progress of physical plant construction
or repairs,
]
initial architectural inspections, visits to determine
the progress of physical plan construction or repairs,
equipment installation
or repairs, [
or
] systems installation or repairs, or conditions
when certain emergencies arise, such as fire, windstorm, or malfunctioning
or nonfunctioning of electrical or mechanical systems.
(e)
] The facility must make all
of its books, records, and other documents maintained by or on behalf of a
facility accessible to DHS upon request.
resident
].
resident
] medical records, including nursing notes, pharmacy records, medication
records, and physician's orders.
When the facility is requested to furnish the
copies, the
]
The
facility may charge DHS at
a
[
the
] rate not to exceed the rate DHS
charges
[
charged
] for copies. The procedure of copying is the responsibility
of the director or his designee. If copying requires that the records be removed
from the facility, a representative of the facility is expected to accompany
the records and assure their order and preservation.
must not reveal
] the source of the complaint
is not revealed
.
residents,
] staff, or any other statement that would identify individual
clients
[
residents
] or other prohibited information under
general rules of public disclosure. The summary is provided to the facility
at the time the report of contact or similar document is provided.
Subchapter F. Abuse, Neglect, and Exploitation: Complaint and Incident Reports and Investigations
G.
[
F.
]
Enforcement
[
Miscellaneous Provisions
]
residents
].
§98.105
] of this title (relating to Informal
Reconsideration). If the facility requests an informal reconsideration, DHS
will give the license holder a written affirmation or reversal of the proposed
action.
§§79.1601 - 79.1614 of this title (relating to Formal Hearings)
]. The suspension will take effect when the deadline for appeal of the
suspension passes, unless the facility appeals the suspension. If the facility
appeals the suspension, the status of the license holder is preserved until
final disposition of the contested matter.
When a serious violation occurs, such that the health
and safety of clients is jeopardized, the
]
The
Texas Department
of Human Services (DHS) may revoke
a facility's
[
the
]
license
when the license holder has violated the requirements of the
Human Resources Code, Chapter 103
.
§98.105
] of this title (relating to Informal
Reconsideration). If the facility requests an informal reconsideration, DHS
will give the license holder a written affirmation or reversal of the proposed
action.
§98.104 of this title (relating to Administrative Hearings) and
]
Chapter 79 of this title, Subchapter Q (relating to Formal Appeals)
[
§§79.1601-79.1614 of this title (relating to Formal
Hearings)
]. If the facility appeals the revocation, the status of the
license holder is preserved until final disposition of the contested matter.
resident
].
§§79.1601 - 79.1614 of this title (relating to Formal Appeals)
],
but a request for an administrative hearing does not suspend the effectiveness
of the order.
Subchapter F. Enforcement
Subchapter G. Miscellaneous Provisions
Subchapter H. Day Activity and Health Services (DAHS) Contractual Requirements
Subchapter I. Reimbursement Methodology for Day Activity and Health Services (DAHS)
Part II.
Texas Rehabilitation Commission