Part 1.
TEXAS DEPARTMENT OF HUMAN SERVICES
Chapter 92.
LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES
The Texas Department of Human Services (DHS) adopts amendments to §92.4, §92.20, §92.41,
and adopts new §92.71 and §92.72. New §92.72 is adopted with
changes to the proposed text in the September 1, 2000, issue of the
Justification for the amendments and new sections is to establish a separate
assisted living licensure category for facilities serving persons who need
assistance only with medications and general supervision as required by Health
and Safety Code §247.030. The rules provide a different category of Life
Safety Code requirements, more appropriate for a population which is fully
capable of evacuation unassisted and is not medically frail. The rules also
add staff training requirements that address this population's unique needs
in the areas of medication and behavior.
The department received a comment from the Health and Human Services Commission
(HHSC). A summary of the comment and DHS's response follow.
Comment: We find the rules to be inconsistent with aspects of Goal 1 of
the Fiscal Year 2001 Health and Human Services Coordinated Strategic Plan
to "Promote effective and appropriate long term care services so people with
functional limitations can live as independently as possible within a continuum
of care ranging from in- home and community services to institutional care."
The rule, as currently written, appears to have an adverse effect on the
range of services available within the community. We would encourage DHS to
consider changes to the proposed rules that allow current high quality providers
to continue providing services, either through a grandfathering mechanism
or other appropriate changes to the proposed rules.
Response: The department discussed this concern with HHSC, and as a result
of the discussion, HHSC has concurred with the rules as written. The intent
of the rules is to provide more options in the community for persons requiring
only supervision of their medications and general welfare.
Other comments were received from Advocacy Incorporated, the Mental Health
Association of Tarrant County, numerous individuals writing in support of
Herrin House, a facility serving persons with mental illness, and the International
Conference of Building Officials. A summary of the comments and DHS's responses
follow.
Comment: The proposed rule which limits Type E facilities to one story
would prevent Herrin House from obtaining a Type E license. While we understand
that the restrictions for a one-story building and only 16 clients may be
based on the idea of protecting mobility- impaired residents, we believe that
the rule would result in fewer facilities being available to persons needing
the type of services that Herrin House has been providing for many years.
Mobility-impaired residents can be protected by placing them in the first
story of its two-story building. We recommend that the following be added
to the rules:
1) A grandfather or waiver provision that would allow existing facilities
to continue to serve residents so long as the residents are not in danger.
2) A provision allowing two-story facilities so long as mobility- impaired
residents are only housed on the first floor.
Response: The department will retain the rules as proposed. The restriction
to a single story was not based on protecting mobility- impaired residents,
but rather on the belief that meeting the Life Safety Code requirements for
a multi-story building would be cost prohibitive. A two-story building requires
a second stairway for exiting the second floor and enclosing interior stairways
(vertical openings). The need for a minimum of two exits from each floor and
enclosing vertical openings has been well documented by historical fire experience.
The cost for these provisions was considered prohibitive so the Type E licensure
was limited to a single story. Section 247.030 Health and Safety Code authorizes
the department to modify accessibility and life safety code standards as necessary
for a facility of this type. Note: Herrin House has been licensed as a Type
A assisted living facility.
Comment: We question the necessity of limiting Type E licensure to 16 beds.
The growing shortage of both affordable housing and residential programs that
supervise medication for the mentally ill continually add to the number of
homeless mentally ill clients living on our streets. Type E licensing was
supposed to alleviate the shortage of facilities for such clientele. It is
our hope that each existing facility could be judged on its own safety merits
and track record with clients. We recommend deleting or modifying the 16-bed
limit.
Response: The department will retain the rules as proposed. Type E licensure
was limited to 16 beds because the Life Safety Code provisions for residential
board and care homes for not more than 16 residents ("small" homes) are less
stringent than the current standards for assisted living facilities. Facilities
with more than 16 residents are defined as "large" and are required to meet
more stringent Life Safety Code requirements. Section 247.030 Health and Safety
Code authorizes the department to modify accessibility and life safety code
standards as necessary for a facility of this type.
Comment: In §92.71(b)(4)(A) and (B), reference is made to the 1988
editions of the Uniform Building Code (UBC) and the Uniform Plumbing Code.
These publications are some 12 years out of date. The 1988 version of the
UBC is no longer in print.
The International Conference of Building Officials, the Southern Building
Code Congress International and the Building Officials and Code Administrators
International began a process of merging their separate sets of codes into
a single set in 1994. That process is complete and the 2000 editions of the
three organization's codes published under the umbrella of the International
Code Council are now available. We strongly encourage you to reference the
2000 edition of the International Building Code, International Plumbing Code,
International Fuel Gas Code, and International Mechanical Code in your revised
rules.
Response: The department will retain the rules as proposed. The licensing
standards for assisted living facilities requires compliance with the 1988
Edition of the Life Safety Code and references similar editions of the model
building codes "in the absence of local codes or their enforcement for new
construction." The 1994 Edition of the Life Safety Code requires all facilities
to be protected by an automatic sprinkler system. The cost of a sprinkler
system was considered prohibitive for a Type E facility so the enforcement
of the 1988 Edition of the Life Safety Code was continued. The edition year
of the building code is set by the local authorities, and the 1988 editions
are enforced by DHS only in their absence.
Comment: Regarding §92.72(l)(1)(B), delete the requirement that no
more than 50% of a facility's beds may be in bedrooms of 3 or more. There
does not seem to be any health or safety reason for this requirement. If one
bedroom can have 4 beds, why can't all bedrooms?
Response: In response to comment, the department will make the suggested
change.
Comment: Regarding §92.72(l)(2)(E), which requires hot water to be
between 100 and 125 degrees Fahrenheit, change 125 to 120 degrees. A similar
reduction was made to the general assisted living standards August 1, 2000.
Response: In response to comment, the department will make the suggested
change.
Comment: The rules that govern licensure of assisted living facilities
do not adequately address the use and restrictions of emergency interventions
(restraints, seclusion and chemical restraint). The residents' rights rules
currently address only this issue:
"Each resident in the assisted living facility has the right to be free
from physical and mental abuse, including corporal punishment or physical
and chemical restraints that are administered for the purpose of discipline
or convenience and not required to treat the resident's medical symptoms.
A provider may use physical and chemical restraints only if the use is authorized
in writing by a physician or the use is necessary in an emergency to protect
the resident or others from injury. A physician's written authorization for
the use of restraints must specify the circumstances under which the restraints
may be used and the duration for which the restraints may be used. Except
in an emergency, restraints may only be administered by qualified medical
personnel."
This language empowers physicians and care givers, who have no mandated
training or experience, to make a subjective decision as to when and how they
can impose restraints or seclusion on residents.
Assisted living facilities are characterized by DHS staff and providers
as providing individuals the assistance they need to "reside in their own
homes." People are not legally restrained, secluded, or forcibly administered
medications in their own home. Providers should not have the right to do so
in assisted living facilities. Neither the educational or training requirements
ensure that staff have the expertise or training to appropriately assess these
situations, correctly administer an intervention, or provide necessary medical
care subsequent to the intervention. There is no definition of emergency or
restraints. There is no guidance to physicians as to when it may be appropriate
to order such an intervention. In other residential settings, the use of such
interventions is governed by strict standards and people die even when those
standards are followed. Advocacy, Inc. is not attempting to prohibit the appropriate
use of supportive devices or protective devices. Nor would we disagree that
in an emergency a provider may need to physically intervene immediately and
then request assistance from law enforcement. This is standard practice in
any individual's home. However, the standard must provide more guidance to
providers and physicians in this matter.
Currently, staff/client ratios are developed monthly by the administrator
based on the needs identified in the care plan developed for the residents.
With a population of individuals whose needs basically consist of food, shelter
and assistance with medication, it is likely that routinely a staff/client
ratio of 1-16 will be created. We question the adequacy of this ratio, particularly
when providers are reluctant to restrict the use of emergency interventions.
The two positions appear to be in conflict. If their concern is valid, it
seems reasonable to mandate a minimum of 2 staff to 16 clients.
Response: Regarding the issue of restraints, the department will be convening
a work group to address this issue through a separate rule promulgation process.
It should be noted that the quoted rule language from the commenter is taken
directly from the rights of the elderly, §102.003(c) of the Human Resources
Code. The issue of staff ratios was thoroughly discussed by the workgroup
and advisory committees during the development of these rules. The intent
of these rules is to provide an avenue for currently unlicensed facilities
to seek an appropriate level of licensure for the services they provide. The
assisted living standards require facilities to staff appropriately, based
upon individual assessments of their resident's needs. The department's position
is 1 to 16 is an adequate minimum ratio for the clientele Type E facilities
would serve. The department will not mandate a ratio of 2 staff to 16 clients;
to do so would be contrary to the rules requiring staffing based upon individual
assessments of a facility's residents.
Subchapter A. INTRODUCTION
40 TAC §92.4
The amendment is adopted under the Health and Safety Code,
Chapter 247, which authorizes the department to license assisted living facilities.
The amendment implements the Health and Safety Code, Chapter 247.001-247.066.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 22, 2001.
TRD-200101109
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: May 1, 2001
Proposal publication date: September 1, 2000
For further information, please call: (512) 438-3108
40 TAC §92.20
The amendment is adopted under the Health and Safety Code,
Chapter 247, which authorizes the department to license assisted living facilities.
The amendment implements the Health and Safety Code, Chapter 247.001-247.066.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on February 22, 2001.
TRD-200101110
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: May 1, 2001
Proposal publication date: September 1, 2000
For further information, please call: (512) 438-3108
Subchapter B. APPLICATION PROCEDURES
Subchapter C. STANDARDS FOR LICENSURE