Part 1.
TEXAS DEPARTMENT OF HUMAN SERVICES
Chapter 98.
ADULT DAY CARE AND DAY ACTIVITY AND HEALTH SERVICES REQUIREMENTS
The Texas Department of Human Services (DHS) proposes amendments to §§98.12,
98.13, 98.15, 98.41, 98.42, 98.43, 98.61, 98.62, 98.81, 98.82, 98.95, and
98.103, concerning building approval, applicant disclosure requirements, renewal
procedures and qualifications, construction and initial survey of completed
construction, safety, sanitation, general requirements, program requirements,
procedural requirements, determinations and actions pursuant to inspections,
confidentiality, and revocation; proposes the repeal of §98.104, concerning
emergency suspension and closing order; and proposes new §98.104, concerning
emergency suspension and closing order, in the Adult Day Care and Day Activity
and Health Services Requirements chapter.
The purpose of the proposal is to clarify and add additional requirements
to Adult Day Care and Day Activity and Health Services Requirements rules
in the licensure areas related to the Life Safety Code, health screening,
training, and due process. As part of the renewal process, facilities will
have an annual inspection by the local fire marshal. Facilities will be required
to have a disaster plan. Metric equivalents will be deleted from the window
dimensions. Definitions and examples of flame spread ratings will be added.
Square footage requirements for ambulatory and semiambulatory clients will
be changed to 40 square feet per client. The rule on an area of rest and a
room or rooms with beds will be divided into two separate rules. Urinals will
be allowed to be substituted for the third required toilet in the men's restroom.
Providers will be required to have a written policy for control of communicable
diseases. Facilities will have to provide all clients with a written list
of the client's rights as outlined in chapter 102 of the Human Resources Code.
The director will have to have 12 contact hours of annual continuing education.
Providers and outside resource contracts will be required to ensure that new
employees are screened for tuberculosis within two weeks of employment and
that all employees are screened annually. Facilities will have to practice
evacuation procedures with staff and clients at least once a month. Providers
will be allowed to request an informal dispute resolution if they have a dispute
regarding a violation. The confidentiality of a complainant's identity will
be added to the rules. Provisions on grounds for revocation of a license will
be added. The rule relating to relocation will be deleted to be replaced with
a new rule clarifying the specific procedures to be used for relocation if
a facility's license is suspended or an immediate closure of a facility is
ordered.
Eric M. Bost, Commissioner, has determined that for the first five-year
period the section is in effect there will be no fiscal implications for state
or local government as a result of enforcing or administering the section.
Mr. Bost also has determined that for each year of the first five years
the section is in effect the public benefit anticipated as a result of enforcing
the section will be clarified rules that promote good health and care for
affected clients. The proposed rule changes will have an adverse economic
effect on small and micro-businesses because of the requirements concerning
tuberculosis (TB) testing and the continuing education requirements for directors.
The county health department does not charge for TB tests. County health department
officials travel to rural areas that do not have county health department
offices to administer TB tests approximately every other week. County health
officials may not be located in the community in which an adult day care center
is located. If the client or staff of an adult day care center is unable to
travel to the location of the county health department official, they may
need to obtain their TB test or inoculation from a physician. A physician
may charge an administrative fee of $7.00 to $10. In such a case, a small
provider with 14 clients and a minimum of 8.75 staff could have an initial
cost of $227.50 for physician administrative fees, while a large provider
with 250 clients and a minimum of 39.5 staff could have an initial cost of
$2,500 for physician administrative fees. The initial cost to providers will
be higher if no clients or staff have been tested for TB and they are in a
rural areas where they are unable to travel to the location of the county
health official. After the initial screening, it is likely that the costs
to providers will decrease due to the smaller number of clients or staff being
tested or inoculated. TB screening is essential as there is a health risk
in this state; TB testing is good medical practice. There will be an additional
cost to directors who must show evidence of 12 contact hours of annual continuing
education. Educational seminars that meet these requirements can be obtained
at no cost to providers, whereas other seminars may cost several hundred dollars.
Continuing education for directors is required in all DHS programs.
Questions about the content of this 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 Editing
Unit-244, Texas Department of Human Services E-205, P.O. Box 149030, Austin,
Texas, 78714-9030, within 30 days of publication in the
Texas Register
.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to these
rules. Accordingly, the department is not required to complete a takings impact
assessment regarding these rules.
Subchapter B. APPLICATION PROCEDURES
40 TAC §§98.12, 98.13, 98.15
The amendments are proposed under the Human Resources Code,
Title 6, Chapter 103, which provides the department with the authority to
license adult day care facilities.
The amendments implement §§103.001-103.011 of the Human Resources
Code.
§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)
(No change.)
(2)
Increase in capacity. The license holder must request an
application for increase in capacity from DHS's LTC-R Facility Enrollment
Section. DHS's LTC-R Facility Enrollment Section must provide the license
holder with the application form, and
the license holder
[
(3)-(4)
(No change.)
§98.13.Applicant Disclosure Requirements.
(a)-(b)
(No change.)
(c)
General information required.
(1)
(No change.)
(2)
The certificate of
account status
[
(3)-(4)
(No change.)
(d)
(No change.)
§98.15.Renewal Procedures and Qualifications.
(a)-(f)
(No change.)
(g)
The facility must have an annual inspection
by the local fire marshall as part of the renewal procedures.
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 July 26, 2000.
TRD-200005182
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: September 10, 2000
For further information, please call: (512) 438-3108
40 TAC §§98.41 - 98.43
The amendments are proposed under the Human Resources Code,
Title 6, Chapter 103, which provides the department with the authority to
license adult day care facilities.
The amendments implement §§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)
Facility
Enrollment
[
(2)
(No change.)
(b)
(No change.)
(c)
Initial survey of completed construction.
(1)
(No change.)
(2)
After the completed construction has been surveyed by DHS
and found acceptable, this information will be conveyed to
Facility Enrollment
[
(3)
(No change.)
(d)
(No change.)
§98.42.Safety.
(a)
Disaster plans. The facility must have
a written plan with procedures to be followed in an internal or external disaster
and for the care of casualties. The rules must address areas, such as: emergency
evacuation transportation; adequate sheltering arrangements; supplies; staffing;
emergency equipment; individual identification of residents and transfer of
records; responding to family inquiries; and post-disaster activities, including
emergency power, food, water, and transportation. Plans dealing with natural
disasters, such as hurricanes, floods and tornadoes, must be coordinated with
the local emergency management coordinator. Information about the local emergency
management coordinator may be obtained from the office of the local mayor
or county judge.
(b)
[
(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
Facility Enrollment
[
(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.
(c)
[
(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. [
(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.
Flame spread is the rate of fire travel
along the surface of a material. (This is different from other requirements
for time-rated "burn through" resistance ratings such as one-hour rated.)
Flame spread ratings are Class A (0-25), Class B (26-75), and Class C (76-200).
(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.
(d)
[
(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,
Facility
Enrollment
[
(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)
Licensure capacity will be calculated at 40 square
feet per client.
[
(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. [
(J)
A separate 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 provide space for
a minimum 5.0% of the licensed capacity. The usable space in the room(s) must
provide not less than 80 square feet per bed for a 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.
(K)
[
(L)
[
(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
such as an
[
(2)-(7)
(No change.)
(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.
A urinal may
be substituted as the third required toilet in the men's bathroom.
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)-(10)
(No change.)
(b)
Kitchen.
(1)
The rules in 25 TAC
§§229.161-229.171 and §§229.173-229.175
[
(2)
(No change.)
(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
§§229.161-229.171 and §§229.173-229.175
[
(4)
(No change.)
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 July 26, 2000.
TRD-200005181
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: September 10, 2000
For further information, please call: (512) 438-3108
40 TAC §98.61, §98.62
The amendments are proposed under the Human Resources Code,
Title 6, Chapter 103, which provides the department with the authority to
license adult day care facilities.
The amendments implement §§103.001-103.011 of the Human Resources
Code.
§98.61.General Requirements.
(a)
All facilities are required to meet the following
areas. For purposes of this subchapter, the term, "communicable diseases"
has the meaning assigned to it under 25 TAC Chapter 97 (concerning Communicable
Diseases).
[
(1)-(3)
(No change.)
(4)
written policies for the control of communicable
disease in employees and clients, which include tuberculosis (TB) screening
and provision of a safe and sanitary environment for clients and their families;
(5)
[
(6)
[
(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; [
(B)
the facility's policies respecting the implementation of
these rights;
; and
[
(C)
a written list of the individual's rights,
as outlined under the Human Resource Code section 102.004, Rights of the Elderly.
(2)-(8)
(No change.)
(c)
(No change.)
§98.62.Program Requirements.
(a)
Staff qualifications.
(1)
Director.
(A)
(No change.)
(B)
The director must show evidence of 12
contact hours of annual continuing education in at least two of the following
areas:
(i)
individual and provider rights and responsibilities, abuse,
neglect, and confidentiality;
(ii)
basic principles of supervision;
(iii)
skills for working with individuals, families, and other
professional service providers;
(iv)
individual characteristics and needs;
(v)
community resources;
(vi)
basic emergency first aid, such as CPR or choking; or
(vii)
federal laws, such as Americans with Disabilities Act,
Civil Rights Act of 1991, the Rehabilitation Act of 1993, and the Family and
Medical Leave Act of 1993.
(C)
[
(D)
[
(E)
[
(F)
[
(2)-(3)
(No change.)
(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)
(No change.)
(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
§§229.161-229.171
and §§229.173-175
[
(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
§§229.161-229.171 and §§229.173-229.175
[
(6)
(No change.)
(b)
Staffing ratio. The facility must ensure that:
(1)-(4)
(No change.)
(5)
clients whose needs cannot be met by the
facility are not admitted or retained. Sufficient staff must be on duty at
all times to meet the needs of the clients. The facility is responsible for
all care provided at the facility.
(c)
Staff health. All direct staff must be free of communicable
diseases.
(1)
The facility must screen all employees
for tuberculosis within two weeks of employment and annually, according to
Center for Disease Control screening guidelines. All persons providing services
under an outside resource contract must also screen all employees for tuberculosis
within two weeks of employment and annually according to Center for Disease
Control screening guidelines. When requested to do so by the facility, persons
providing services under an outside resource contract must provide evidence
of compliance with this requirement.
(2)
If employees contract a communicable disease
that is transmissible to individuals through food handling or direct individual
care, the employee must be excluded from providing these services as long
as a period of communicability is present.
(d)
(No change.)
(e)
Training.
(1)
(No change.)
(2)
Ongoing training.
(A)
(No change.)
(B)
The facility must practice evacuation procedures with staff
and clients
not less than once a month
[
(f)
Medications.
(1)
(No change.)
(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.
Assistance with self-medication
[
(A)-(F)
(No change.)
(3)-(6)
(No change.)
(g)-(h)
(No change.)
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 July 26, 2000.
TRD-200005180
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: September 10, 2000
For further information, please call: (512) 438-3108
40 TAC §98.81, §98.82
The amendments are proposed under the Human Resources Code,
Title 6, Chapter 103, which provides the department with the authority to
license adult day care facilities.
The amendments implement §§103.001-103.011 of the Human Resources
Code.
§98.81.Procedural Requirements.
(a)
(No change.)
(b)
An inspection may be conducted by
a
[
(c)-(g)
(No change.)
(h)
The source of the complaint is not revealed.
(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 medical records, including
nursing notes, pharmacy records, medication records, and physician's orders.
(3)
The facility may charge DHS at a rate not to exceed the
rate DHS charges 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.
(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)-(b)
(No change.)
(c)
At the conclusion of an inspection or survey, the violations
are discussed in an exit conference with the facility's management. A written
list of the violations is left with the facility at the time of the exit conference;
any additional violation that may be determined during review of field notes
or preparation of the official final list (when the official final list was
not issued at the exit conference) is communicated to the facility in writing
within ten workdays of the exit conference, [
(d)
Violations found during
facility visits
[
(e)-(f)
(No change.)
(g)
If the provider and the inspector cannot
resolve a dispute regarding a violation of regulations, the provider is entitled
to an information dispute resolution (IDR) at the regional level for all violations.
For a violation which resulted in an adverse action, the provider is entitled
to an IDR at either the regional or state office level.
(1)
A written request and all supporting documentation must
be submitted to the Regional Director, Long Term Care-Regulatory, for a regional
IDR or to Long Term Care-Regulatory, Texas Department of Human Services (DHS),
P.O. Box 149030, (E-343), Austin, Texas 78714-9030, for a central office IDR,
no later than the tenth calendar day after receipt of the official statement
of violations.
(2)
DHS will complete the IDR process no later than the 30th
calendar day after receipt of a request from a facility.
(3)
Violations deemed invalid in an IDR will be so noted in
DHS's 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 July 26, 2000.
TRD-200005179
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: September 10, 2000
For further information, please call: (512) 438-3108
40 TAC §98.95
The amendment is proposed under the Human Resources Code,
Title 6, Chapter 103, which provides the department with the authority to
license adult day care facilities.
The amendment implements §§103.001-103.011 of the Human Resources
Code.
§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)
(No change.)
(2)
The final written investigation report may be released
to the public upon request provided the report is
de-identified
[
(3)-(4)
(No change.)
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 July 26, 2000.
TRD-200005178
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: September 10, 2000
For further information, please call: (512) 438-3108
40 TAC §98.103, §98.104
The amendment and new section are proposed under the Human
Resources Code, Title 6, Chapter 103, which provides the department with the
authority to license adult day care facilities.
The amendment and new section implement §§103.001-103.011 of
the Human Resources Code.
§98.103.Revocation.
(a)
(No change.)
(b)
In addition, DHS may revoke a license if the licensee:
(1)
(No change.)
(2)
used subterfuge or other evasive means to obtain the license;
[
(3)
concealed a material fact in the application for a license
or failed to disclose information required in §98.13 of this title (relating
to Applicant Disclosure Requirements) that would have been the basis to deny
the license under §98.19 of this title (relating to Criteria for Denying
a License or Renewal of a License)
; or
[
(4)
violated the requirements of the Human
Resources Code, Chapter 103, or the rules adopted under Human Resources Code
Chapter 103.
(c)-(e)
(No change.)
§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 part of the facility
if:
(1)
DHS finds that the facility is operating in violation of
the licensure rules; and
(2)
the violation creates an immediate threat to the health
and safety of a resident.
(b)
The order suspending a license or closing a part of a facility
under this section is immediately effective on the date the license holder
receives a hand-delivered written notice or on a later date specified in the
order.
(c)
The order suspending a license or ordering an immediate
closing of a part of the facility is valid for ten days after the effective
date of the order.
(d)
A licensee whose facility is closed under this section
is entitled to request an administrative hearing in accordance with Chapter
79, Subchapter Q of this title (relating to Formal Appeals), but a request
for an administrative hearing does not suspend the effectiveness of the order.
(e)
When an emergency suspension has been ordered and the conditions
in the facility indicate that clients should be relocated, the following apply:
(1)
In all circumstances, a client's rights or freedom of choice
in selecting an adult day care facility must be respected.
(2)
If a facility or part thereof is closed, the following
procedures must be followed:
(A)
DHS will notify the local health department director, city
or county health authority, and representatives of the appropriate state agencies
of the closure.
(B)
The facility staff must notify each client's guardian or
responsible party and attending physician, advising them of the action in
process.
(C)
The client or client's guardian or responsible party must
be given opportunity to designate a preference for a specific facility or
for other arrangements.
(D)
DHS will arrange for relocation to other facilities in
the area in accordance with the client's preference. A facility chosen for
relocation must be in good standing with DHS and, if certified under Titles
XVIII and XIX of the United States Social Security Act, must be in good standing
under its contract. The facility chosen must be able to meet the needs of
the client.
(E)
If absolutely necessary, to prevent transport over substantial
distances, DHS will grant a waiver to a receiving facility to temporarily
exceed its licensed capacity, provided the health and safety of clients is
not compromised and the facility can meet the increased demands for direct
care personnel and dietary services. A facility may exceed its licensed capacity
under these circumstances, monitored by DHS staff, until clients can be transferred
to a permanent location.
(F)
With each client transferred, the following reports, records,
and supplies must be transmitted to the receiving institution:
(i)
a copy of the current physician's orders for medication,
treatment, diet, and special services required;
(ii)
personal information such as name and address of next
of kin, guardian, or responsible party for the client; attending physician;
Medicare and Medicaid identification number; social security number; and other
identification information as deemed necessary and available; and
(iii)
all medication dispensed in the name of the client for
which physician's orders are current. These must be inventoried and transferred
with the client.
(G)
If the closed facility is allowed to reopen within 90 days,
the relocated clients have the first right to return to the facility. Relocated
clients may choose to return, may stay in the receiving facility (if the facility
is not exceeding its licensed capacity), or choose any other accommodations.
(H)
Any return to the facility must be treated as a new admission
including, but not limited to, exchange of medical information, medications,
and completion of required forms.
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 July 26, 2000.
TRD-200005176
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: September 10, 2000
For further information, please call: (512) 438-3108
40 TAC §98.104
(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 6, Chapter 103, which provides the department with the authority
to license adult day care facilities.
The repeal implements §§103.001-103.011 of the Human Resources
Code.
§98.104.Emergency Suspension and Closing Order.
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 July 26, 2000.
TRD-200005177
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: September 10, 2000
For further information, please call: (512) 438-3108
Chapter 700.
CHILD PROTECTIVE SERVICES
Subchapter Q. PURCHASED PROTECTIVE SERVICES
40 TAC §700.1718
The Texas Department of Protective and Regulatory Services
(TDPRS) proposes an amendment to §700.1718, concerning purchased adoption
services, in its Child Protective Services chapter. The purpose of the amendment
is to (1) clarify and better describe the children for whom TDPRS purchases
adoption and legal risk placement services; and (2) increase the maximum rates
for purchased adoption and legal risk placement services. Currently, child-placing
agencies may receive up to a maximum of $3,500 upon placement of an individual
TDPRS child in an adoptive or legal risk home and an additional payment up
to $3,500 upon consummation of the adoption. The proposed amendment increases
the maximum rates for an individual child up to $5,000 upon placement and
up to $5,000 upon adoption consummation.
Mary Fields, Budget and Federal Funds Director, has determined that for
the first five-year period the proposed section will be in effect there will
be fiscal implications for state government as a result of enforcing or administering
the section. The effect on state government for the first five-year period
the amendment will be in effect is an estimated additional cost of $478,643
for fiscal year 2001, $526,507 for fiscal year 2002, $579,158 for fiscal year
2003, $637,074 for fiscal year 2004, and $700,781 for fiscal year 2005. There
will be no fiscal implications for local government.
Ms. Fields also has determined that for each year of the first five years
the section is in effect the public benefit anticipated as a result of enforcing
the section will be that more adoptive homes will be available and adoptions
will be achieved sooner. There will be no effect on large, small, or micro-businesses
because TDPRS only purchases adoption services from nonprofit child placing
agencies. There is no anticipated economic cost to persons who are required
to comply with the proposed section.
Questions about the content of the proposal may be directed to Susan Klickman
at (512) 438-3302 in TDPRS's Child Protective Services Section. Written comments
on the proposal may be submitted to Texas Register Liaison, Legal Services-143,
Texas Department of Protective and Regulatory Services E-611, P.O. Box 149030,
Austin, Texas 78714-9030, within 30 days of publication in the
Texas Register
.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to this
rule. Accordingly, the department is not required to complete a takings impact
assessment regarding this rule.
The amendment is proposed under the Human Resources Code (HRC), §40.029
, which authorizes the department to propose and adopt rules to comply with
state law and implement departmental programs; and under the Texas Family
Code, Chapters 261 and 264, which authorizes the department to provide services
to alleviate the effects of child abuse and neglect.
The amendment implements the Human Resources Code, §40.029, and the
Texas Family Code, Chapters 261 and 264.
§700.1718.Purchased Adoption Services.
(a)-(b)
(No change.)
(c)
Client eligibility.
(1)
Criteria. CPS purchases adoption services and legal risk
placement services for children in TDPRS's managing conservatorship who:
(A)
have a primary permanency plan of adoption
[
(B)
are legally free for adoption, or for whom a motion
for termination of parental rights has been filed and termination is pending;
and
[
(C)
are
not anticipated to be placed with or adopted by
relatives.
[
[
are six years old or older.]
(2)
(No change.)
(d)
Types of purchased adoption services.
(1)
When appropriate under the provisions in subsections (a)-(c)
of this section, TDPRS contracts with providers to purchase the following
[
(A)
legal risk and adoptive
placement services,
including:
(i)
recruitment, screening, and training of
legal risk
and
adoptive families;
(ii)
foster and
adoptive home studies
completed
for a legal risk or adoptive placement
;
(iii)
preparation of the child
and family related to foster care and adoption issues;
(iv)
[
(v)
[
(B)
post-placement
[
(i)
(No change.)
(ii)
post-placement
[
(2)
TDPRS may purchase placement and
post-placement
[
(3)
(No change.)
(e)
Reimbursement of purchased legal risk placement services
and adoption services.
(1)
Basis of payment. TDPRS has established maximum payable
amounts for purchased legal risk and adoption services.
The first payment
is made upon placement of a child in a legal risk or adoptive home. The second
payment is made upon TDPRS's receipt of documentation that the child's adoption
has been consummated. Only one payment for placement services is made when
a child is placed in a legal risk placement that later converts into an adoptive
placement.
[
(2)
Maximum payable amounts and required documentation. The
following chart presents
the
:
(A)
[
(B)
[
Figure: 40 TAC §700.1718(e)(2)(B)
(3)-(7)
(No change.)
(f)
The plan of operation for purchased legal risk or adoption
services. In addition to including the elements specified in §700.1705(b)
of this title (relating to Contract Documentation), the plan of operation
in contracts for purchased adoption services must include the statements,
agreements, and stipulations specified in this subsection:
(1)-(3)
(No change.)
(4)
Placement services.
(A)-(E)
(No change.)
(F)
A stipulation that the contractor must prepare a child
and the child's prospective legal risk or adoptive parents for a placement
as specified in CPS's policies and procedures for adoption services. The preparation
must include:
(i)-(ii)
(No change.)
(iii)
as many additional
pre-placement
[
(G)-(I)
(No change.)
(5)
Post-placement
[
(A)-(I)
(No change.)
(6)
Post-adoption
[
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 July 28, 2000.
TRD-200005226
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: September 22, 2000
For further information, please call: (512) 438-3437
The Texas Department of Protective and Regulatory Services (TDPRS)
proposes the repeal of Chapter 740, consisting of §§740.1-740.3,
740.1001, and 740.1002, concerning Investigations. As part of the rule review
required by the Texas Government Code, §2001.039 and the General Appropriations
Act of 1997, Article IX, §167, TDPRS is proposing to delete these rules,
which were administratively transferred from the Texas Department of Human
Services to TDPRS in 1992. The information in §§740.1 and 740.2
is included in TDPRS's Licensing rules. Section 740.3 is no longer needed.
Sections 740.1001 and 740.1002 are requirements of DHS, which were inadvertently
adopted by TDPRS.
Mary Fields, Budget and Federal Funds Director, 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.
Ms. Fields 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 that obsolete rules will be deleted. There will be no
effect on large, small, or micro businesses because no new requirements are
being implemented. 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 Phoebe Knauer
at (512) 438-5916 in TDPRS's Legal Services. Written comments on the proposal
may be submitted to Texas Register Liaison, Legal Services-136, Texas Department
of Protective and Regulatory Services E-611, P.O. Box 149030, Austin, Texas
78714-9030, within 30 days of publication in the
Texas Register
.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to these
rules. Accordingly, the department is not required to complete a takings impact
assessment regarding these rules.
Subchapter A. GENERAL PROCEDURES
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. The facility must send DHS's LTC-R Facility
Enrollment 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 is 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.
good
standing
] issued by the Comptroller of Public Accounts must be filed
for an initial application, a change of ownership, or a renewal.
Subchapter C. FACILITY CONSTRUCTION PROCEDURES
Licensing Section
] in Austin, Texas, must be
notified in writing
prior to
[
of
] construction start.
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.
(a)
] Environmental safety.
Licensing Section
] will be so informed so that these conflicts
may be legally resolved.
(b)
] Life Safety Code.
(50.8 cm.)
] in width,
24. in. [
(61 cm.)
] in height, and 5.7 sq. ft.
(821 sq. in.)
[
(.53 sq. m.)
] in area
(minimum width of 20 inches
by 41.2 inches high and minimum height of 24 inches by 34.2 inches wide)
.
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:
(c)
] Personal safety.
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.
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.
Facilities licensed before October 1, 2000, will be allowed to
meet the requirements in effect prior to October 1, 2000, of 35/50 square
feet for ambulatory/semiambulatory clients. If a facility licensed before
October 1, 2000, chooses to increase its capacity, changes ownership, or relocates,
the facility will be required to meet the current standards for usable space,
outdoor area, and rooms for privacy.
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:
to an
]
on-site sewage facility must be as approved by the Texas Natural Resource
Conservation Commission or authorized agent.
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.
229, Subchapter K
] (relating to Texas Food Establishments).
Subchapter D. LICENSURE AND PROGRAM REQUIREMENTS
:
]
(4)
] all relevant federal and state
standards; and
(5)
] all applicable provisions of
the Human Resource Code, Chapter 102.
and
]
.
]
(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.
229, Subchapter K
] (relating
to Texas Food Establishments).
229, Subchapter K
] (relating to Texas Food Establishments).
quarterly
].
The evacuation results must be documented in the facility records.
Supervision
] includes, and
is limited to:
Subchapter E. INSPECTIONS, SURVEYS, AND VISITS
an
individual qualified surveyor or by a team, of which at least one member is
a qualified
] surveyor.
and the facility has 10
workdays to reply before the additional violation is made a part of the permanent
record
]. Copies of any narratives or similar papers written to further
describe the conditions are furnished to the facility.
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 the source of the complaint is not revealed
].
Subchapter F. ABUSE, NEGLECT, AND EXPLOITATION: COMPLAINT AND INCIDENT REPORTS AND INVESTIGATIONS
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.
]
Subchapter G. ENFORCEMENT
or
]
.
]
Part 19.
TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES
are members of a minority race or have a racially mixed background
];
have a professionally diagnosed physical, mental, or emotional
disability;
]
siblings who need to be placed together; or
]
(D)
types of legal risk placement services and adoption services
]:
(iii)
] presentation of the child
and
pre-placement
[
preplacement
] visits with the
legal risk or
adoptive family; and
(iv)
] placement and supervision
services; and
postplacement
] services
before consummation of the adoption, including:
placement
] supervision.
postplacement
] services together or separately.
The maximums are based on the costs that TDPRS incurs
for providing adoption services directly.
]
the
] maximum amounts that TDPRS pays for purchased
legal risk placements and
adoption services; and
the
] documentation that contractors must provide
to receive payment.
preplacement
] visits as necessary.
Postplacement
] services.
Postadoption
] services.
A stipulation that the contractor must provide information about the TDPRS
post-adoption program and services available prior to an adoption being consummated.
If the adoptive family needs additional services to support the adoption,
the contractor must help the family find other sources of support and services.
If the family returns for case record information, the contractor must assist
the family and/or adult adoptee in obtaining this information whether the
purpose is for background HSEGH, searching, or specific background details
entitled to the person pursuant to the Texas Family Code.
Chapter 740.
INVESTIGATIONS