The Texas Department of Human Services (DHS) adopts the repeal of §§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, without changes to the proposed text published in the January 29, 1999, issue of the Texas Register (24 TexReg 515).

The justification for the repeals is that DHS is streamlining Chapter 98, Adult Day Care Facilities, and Chapter 50, Day Activity and Health Services (DAHS) program rules into one rule chapter and handbook. DHS has determined that the utilization of one handbook by providers and DHS staff will assist with easier access to information. The Adult Day Care Facilities and DAHS rules are reorganized and edited in parts for consistency, flow, and grammar. DAHS contract requirements are placed in Subchapter H, DAHS Contractual Requirements. A workgroup made up of DHS staff and providers was convened to review and discuss rule changes and issues. Also in this issue of the Texas Register , DHS is adopting changes to Chapter 98 to add DAHS information.

The repeals will function by providing easier access to the rules for providers who must meet DAHS and adult day care facility requirements.

No comments were received regarding adoption of the repeals.

Subchapter A. Program Overview

The Texas Department of Human Services (DHS) adopts amendments to §§98.1, 98.2, 98.11-98.13, 98.15-98.19, 98.81, 98.82, and 98.102-98.104; adopts the repeal of §§98.20, 98.41-98.44, 98.61, 98.105, 98.122, and 98.123; and adopts 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, in its Adult Day Care and Day Activities and Health Services Requirements chapter. The amendments to §§98.11, 98.12, and 98.81, and new §§98.62, 98.209, and 98.212 are adopted with changes to the proposed text published in the January 29, 1999, issue of the Texas Register (24 TexReg 518). The amendments to §§98.1, 98.2, 98.13, 98.15-98.19, 98.82, and 98.102-98.104; the repeal of §§98.20, 98.41-98.44, 98.61, 98.105, 98.122, and 98.123; and new §§98.20, 98.21, 98.41-98.43, 98.61, 98.83, 98.84, 98.91-98.95, 98.201-98.208, 98.210, 98.211, and 98.6901-98.6907 are adopted without changes to the proposed text and will not be republished. Also in this issue of the Texas Register , DHS is adopting the repeal of Chapter 50, Day Activity and Health Services.

DHS is streamlining Chapter 98, Adult Day Care Facilities, and Chapter 50, Day Activity and Health Services (DAHS) program rules into one rule chapter and handbook. DHS has determined that the utilization of one handbook by providers and DHS staff will assist with easier access to information. The Adult Day Care Facilities and DAHS rules are reorganized and edited in parts for consistency, flow, and grammar. DAHS contract requirements are placed in Subchapter H, DAHS Contractual Requirements. A workgroup made up of DHS staff and providers was convened to review and discuss rule changes and issues. Justification for the significant changes is as follows:

The title of Chapter 98 was changed to reflect Adult Day Care and Day Activity and Health Services Requirements. Both handbooks have been combined and the title was changed to reflect this.

Section 98.2, Definitions. Definitions were added to include the additional DAHS definitions and to accurately define abuse, neglect, and exploitation.

Section 98.11(c), Criteria for Licensing. Criteria were added for licensing so that services will not be disrupted as a result of the inability of equipment to recognize the date January 1, 2000. The potential problems created by a potential combination of equipment failures, and disruptions to the delivery of goods, services, utilities and financial transactions exceed the normal disaster relief plans currently required of facilities. DHS has received recommendations from the Office of the Governor and the Department of Information Resources to exercise due diligence to ensure that providers will be able to operate and supply goods and services as they were prior to the millennium change. DHS thus chose to add this to a rule rather than a contract amendment because of the critical need for providers to develop comprehensive year 2000 business continuation plans. It is more efficient to make a rule change than to individually change every one of DHS's contracts.

Section 98.13, Applicant Disclosure Requirements. Subsections (c) and (d) were deleted and a general statement was added stating that the applicant or license holder will provide DHS with any additional background information as requested. DHS staff reported that if additional information other than what is provided on the application is needed, they would contact the provider. It would be a waste of provider time and money to compile information that may not be needed by DHS.

Section 98.15(b)(2) and (d), Renewal Procedures and Qualifications. Time lines were added to the provisions on missing information and the application process to make the rule consistent with other DHS program rules.

Section 98.16(a)(1)-(2), Change of Ownership. A change of ownership was defined for clarity and to make the rule consistent with other DHS program rules.

Section 98.17(c), Change of Staff. Workgroup members informed DHS staff about the problems with hiring an activities director and a director within 30 days. Areas of concern were location of the facility, lack of responses to an advertisement, lack of qualified applicants, etc. The providers recommended that DHS add language which would require providers to submit a letter to the regional office regarding their inability to fill the position and a request for a waiver. The regional office would notify the provider in writing of the length of the extension. DHS agreed with these recommendations and made these changes.

Section 98.18(e), Time Periods for Processing License Applications. DHS added language which states that the processing of an application for renewal of a license could be delayed up to six months if the facility is subject to or pending a termination, or is within 30 days prior to a license expiration. DHS made this change to make the rule consistent with other DHS program rules and to allow a follow-up inspection to check for corrections rather than automatically proposing to deny a renewal application.

Section 98.42(a)(3), Safety. DHS added language stating that 50% of the restrooms must be in accordance with the Americans with Disabilities Act (ADA); however, if the facility has 45 or fewer persons, one unisex restroom had to be provided in accordance with the ADA. The standards have previously required compliance with the Texas Accessibility Standards, which require 50% of Long Term Care facilities' toilets to be accessible. A 45-person adult day care would require three lavatories and toilets, so a unisex restroom would meet the 50% requirement for three restrooms.

Section 98.42(b)(2)(D), Life Safety Code. The subsection contains Life Safety Code requirements already required under the Life Safety Code, 1988, §10-7. DHS included these areas in the licensing rules to alert the facilities to the most common deficiencies cited under this subsection.

Section 98.42(b)(4)(C) and (D). DHS added language requiring buildings to have automatic shutdown upon initiation of the fire alarm. This requirement already existed under the NFPA 90A requirement. It was added to alert facilities to common deficiencies written under NFPA 90A. DHS also added language requiring specific minimum lighting in bathrooms, toilets, general areas, kitchens, and medication and food preparation areas. DHS added this to alert the facilities to another common deficiency. The requirement is outlined in the Lighting Handbook of the Illuminating Engineer Society of North America.

Section 98.42(c)(2)(I), Personal Safety. DHS is establishing a minimum area based on total number of clients. The area used has been established for personal care as reasonable minimum sizes per bed. DHS added a grandfather clause for new facilities licensed on or after May 1, 1999, which requires areas of rest and privacy to have a specific number of beds in a specific amount of space. Already-existing facilities have a limited amount of space for rest areas and are in accordance with current rules. Workgroup members expressed concern regarding the cost of expansion or moving placed on the existing provider. There was no defined minimum amount of space or numbers of beds for rest and privacy. DHS considered the issues and incorporated the grandfather clause in the rule.

Section 98.42(c)(2)(K), Personal Safety. Facilities are required to have an enclosed outdoor recreational area for their clients. DHS added language requiring that the area be suitably furnished and 20% of the area be shaded. DHS also added a grandfather clause for facilities licensed on or after May 1, 1999, which outlines specific square footage for facilities with a certain amount of clients. The provider base has frequently questioned DHS staff on the specific size of the recreational areas. There was no defined minimum amount of space for outdoor recreation. DHS decided to add the requirement for more space for the clients. Concern was expressed at the workgroup meetings regarding the cost to current providers in the area of expansion or relocation. They requested that DHS consider the grandfather clause. DHS considered the issues and incorporated the grandfather clause in the rule.

Section 98.43(a)(8), Sanitation. Restrooms for men and women must meet the needs of the client. A minimum of one bathing unit must be provided. DHS added language which stated that the bathing unit cannot interfere with the use of the restroom by other clients because clients must be afforded the necessary privacy. Before the rule was presented to the Aged and Disabled Advisory Committee on November 6, 1998, workgroup members contacted DHS requesting a grandfather clause, due to the cost of renovation or relocation. DHS considered the request and incorporated the grandfather clause.

Section 98.43(b)(2), Kitchen. DHS wrote the rule language to match the Texas Department of Health's Rules on Food Service Sanitation with a grandfather clause for facilities licensed on or after May 1, 1999, due to the concern expressed by workgroup members on the expense of renovation or relocation.

Section 98.61(b), Advance Directives. The rule originally stated that the provider had to comply with advance directives as outlined under the state plan for medical assistance. DHS determined that providers needed clear and concise rules outlining what was required to obtain advance directives already in place from the client and informing a client on advance directives if the client requests the information. The Patient Self Determination Act states that people are allowed to make advance directives; therefore, DHS determined it was necessary to have a client's advance directive on file so that staff are aware of the client's wishes.

Section 98.61(b)(6). DHS moved the additional DAHS requirements to the licensure section because it contained employee qualifications, as does this licensure section. Long Term Care-Regulatory (LTC-R) staff frequently get involved in complaints regarding unsafe driving or poorly-maintained vehicles. LTC-R staff review personnel records during licensing inspections.

Section 98.61(d). The facility is required to post its license, complaint procedures, the availability of inspection reports, a copy of the most recent inspection, hours of operation, activities offered, and emergency numbers. The adult day care and DAHS rules had similar requirements, stated differently. The workgroup agreed that one set of requirements was necessary. DHS agreed and combined the set of regulations.

Section 98.62(a)(1)(A), (D), and (E), Director Qualifications. Questions and issues were raised during the workgroup meetings regarding who should be responsible in the administrator's absence due to the strict qualifications of the administrator. DHS determined that the facility was responsible for ensuring a qualified acting administrator was available in the absence of the administrator through policy. DHS determined that the facility is knowledgeable about the qualifications of its staff and is therefore capable of making these determinations. DHS added rule language stipulating that the facility had to have a policy addressing the delegation of responsibility, not to exceed 10 working days, in the absence of the facility administrator. If there were extenuating circumstances, such as illness or hospitalization, the provider must obtain a waiver from the DHS regional office. DHS included language which stated that if an administrator was absent over 10 working days, the facility would obtain a waiver from the regional office to ensure that DHS was aware of the acting administrator if DHS entered the facility on a survey or complaint.

Section 98.62(a)(3)(B), Activity Director. Originally one of the options for qualifying for an activities director was to have four years full-time experience working with the elderly or people with disabilities in the human services or medically-related fields. The requirement did not include any educational background or job-specific training. DHS considered deleting this option altogether; however, current employees would suffer. In order to protect current employees hired under this subsection, DHS will allow them to be grandfathered in.

Section 98.62(b)(2)-(4), Staffing Ratio. The workgroup discussed ratios at length. DAHS had stricter requirements mandating that a registered nurse and a licensed vocational nurse be present at least eight hours a day when the facility census exceeds 60 clients. Providers stated that they're responsible for client welfare and the cost was high to have both nurses in the facility when one could meet the needs of the clients. They added that the facility should be responsible for determining whether additional nursing staff was required. DHS considered the request and agreed that client needs were the facility's responsibility and the facility should know how to best serve their clients. The DAHS rule was deleted and a rule was placed in licensure requiring a registered nurse or licensed vocational nurse to be on site eight hours a day. The facility must schedule nursing hours according to client needs and sufficient nursing staff to meet the nursing needs. In addition, DHS included in §98.61 that the administrator and activities director must work 40 hours per week.

Section 98.62(e)(1)(I). The licensure and DAHS rules required that staff be trained in cardiopulmonary resuscitation (CPR). The CPR requirement was deleted from the DAHS rules and maintained in the licensing rules since all providers must follow licensing rules.

Section 98.81, Procedural Requirements. Subsections (a) and (e) were added, as they are part of the licensing law for adult day care facilities (Texas Human Resources Code, Chapter 103) and were inadvertently left out of the rules earlier.

Section 98.82(f), Determinations and Actions Pursuant to Inspections. The facility must have its plan of correction to DHS within 10 calendar days after receipt of the official statement of deficiencies. DHS added this language so providers have a specific time frame for the submission of a plan of correction and the rule is consistent with other DHS programs.

Section 98.83, Referrals to the Attorney General's Office. This section is based on Texas Human Resources Code §103.0091 and was inadvertently left out of the rules earlier.

Subchapter F, Abuse, Neglect, and Exploitation: Complaint and Incident Reports and Investigations, is based on Texas Human Resources Code Chapter 48, which covers abuse, neglect, and exploitation investigation in adult day care facilities and DHS's rules in other programs that are also covered by Chapter 48 and was inadvertently left out of the rules earlier.

The amendments, repeals, and new sections will function by providing easier access to rules for providers who must meet DAHS and adult day care facility requirements.

No comments were received regarding adoption of the amendments, repeals, and new sections. However, upon further review of the rules, DHS has made technical changes to the following sections:

In §98.11(e), the proposed rule had a typographical error. DHS is changing the 10 days to 120 days for denial of an application that remains incomplete after 120 days.

In §98.12(b)(1) and (2), DHS is changing references from the Licensing Section to the Facility Enrollment Section. Long Term Care-Regulatory recently reorganized and section titles and job functions were changed.

In §98.62(a)(2)(D), DHS is restating the rule to say "Licensed facilities that do not have a Day Activity and Health Services (DAHS) contract, but have a Special Services to Persons with Disabilities contract, 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" to ensure the rule is clear for providers. Except for these special services clients, adult day care facilities do not provide any DAHS services. All the other clients are private pay. The adult day care facility has an agreement to keep the clients with disabilities until the client stops going to the adult day care or something happens that they no longer have a contract. These special services clients do not have a medical need but the facility had to have a nurse to comply with the licensing requirements. If the facility has to have a nurse, they will no longer accept these clients. A small number of clients would be affected. The service is no longer given to any new clients once the contracts are terminated.

In §98.81(d), the word "plan" is changed to "plant."

In §98.209(a)-(b) and §98.212(c), the proposed rules were not the current and accurate DAHS rules. DHS is deleting the proposed language from these subsections, as accurate rule language is located under §49.11 and §49.19.

Subchapter A. Introduction

Subchapter A. Acquisition of Client Goods and Services

The new section is adopted under the Texas Human Resources Code, Title 7, Chapter 111, §111.018 and §111.023, which provides the Texas Rehabilitation Commission with the authority to promulgate rules consistent with Title 7, Texas Human Resources Code.

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 April 5, 1999.

TRD-9902016

Charles Schiesser

Chief of Staff

Texas Rehabilitation Commission

Effective date: April 25, 1999

Proposal publication date: March 5, 1999

For further information, please call: (512) 424-4050