Part 1.
TEXAS DEPARTMENT OF HUMAN SERVICES
Chapter 61.
COMMUNITY SERVICES--VOLUNTEER SERVICES
The Texas Department of Human Services (DHS) adopts the repeals of §§61.9001
- 61.9013 and new §§61.1 - 61.16 without changes to the proposed
text published in the April 30, 2004, issue of the
Texas Register
(29 TexReg 4135).
DHS undertook the repeals and new sections as a result of its review of
Chapter 61 as mandated by the Government Code, §2001.039, and as part
of an agency-wide initiative to reorganize and rewrite its rules in plain
English to make them easier for the public to navigate and understand.
DHS received no comments regarding adoption of the repeals and new sections.
40 TAC §§61.1 - 61.16
The new sections are adopted under the Human Resources Code,
Chapter 22, which authorizes DHS to administer public assistance programs;
and the Government Code, Chapter 2109, which authorizes DHS to implement a
volunteer program.
The new sections implement the Human Resources Code, §§22.0001-22.040;
and the Government Code, §§2109.001-2109.006.
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 June 16, 2004.
TRD-200403964
Carey Smith
Deputy Commissioner, Legal Services
Texas Department of Human Services
Effective date: July 6, 2004
Proposal publication date: April 30, 2004
For further information, please call: (512) 438-3734
40 TAC §§61.9001 - 61.9013
The repeals are adopted under the Human Resources Code, Chapter
22, which authorizes DHS to administer public assistance programs; and the
Government Code, Chapter 2109, which authorizes DHS to implement a volunteer
program.
The repeals implement the Human Resources Code, §§22.0001-22.040;
and the Government Code, §§2109.001-2109.006.
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 June 16, 2004.
TRD-200403965
Carey Smith
Deputy Commissioner, Legal Services
Texas Department of Human Services
Effective date: July 6, 2004
Proposal publication date: April 30, 2004
For further information, please call: (512) 438-3734
The Texas Department of Human Services (DHS) adopts amendments to §§92.3,
92.41, 92.62, and 92.559; and adopts new §92.129 in its Licensing Standards
for Assisted Living Facilities chapter. New §92.129 is adopted with changes
to the proposed text published in the March 5, 2004, issue of the
Texas Register
(29 TexReg 2281). The amendments to §§92.3,
92.41, 92.62, and 92.559 are adopted without changes to the proposed text.
Justification for the amendments and new section is to implement changes
mandated by the 78th Texas Legislature and correct references within the chapter.
Justification for the amendments to §92.3, §92.559, and new §92.129
is to comply with the Health and Safety Code, §247.003, as amended by
Senate Bill 1012, which requires assisted living facilities to administer
and enforce the same standards required in nursing facilities for electronic
monitoring of residents' rooms. The amendments and new section, therefore,
add the requirement that authorized electronic monitoring (AEM) be allowed
in assisted living facilities and outline procedures to follow for electronic
monitoring in assisted living facilities. In order to provide facilities with
accurate information in DHS's rule base, the amendment to §92.41 corrects
a reference to the Nursing Practice Act. The amendment to §92.62 implements
House Bill 867 by adopting a minimum standard that requires nursing facilities
constructed or licensed after August 1, 2004, to have a central air conditioning
system, or a substantially similar air conditioning system, capable of maintaining
a temperature suitable for resident comfort within areas used by residents.
DHS received one written comment from the Texas Association of Residential
Care Communities. A summary of the comment and DHS's response follow.
Comment: The proposed regulations are very well crafted and we have detected
but one deficiency. Although you talk all around it, you never state categorically
that, in the case of other residents in a room, AEM cannot be performed unless
the other residents consent.
Response: DHS does not agree with this comment. The rule clearly states
that the consent of other residents in the room is required, as mandated by
state law, before AEM can be conducted. However, a statement that AEM cannot
be conducted without the consent of other residents in the room has been added
to §92.129(e).
DHS has also initiated a minor editorial change to Figure: 40 TAC §92.129(c)
to clarify the form.
Subchapter A. INTRODUCTION
40 TAC §92.3
The amendment is adopted under the Health and Safety Code,
Chapter 247, which authorizes DHS to license and regulate assisted living
facilities.
The amendment implements the Health and Safety Code, §§247.001-247.068.
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 June 21, 2004.
TRD-200404042
Carey Smith
Deputy Commissioner, Legal Services
Texas Department of Human Services
Effective date: August 1, 2004
Proposal publication date: March 5, 2004
For further information, please call: (512) 438-3734
40 TAC §92.41
The amendment is adopted under the Health and Safety Code,
Chapter 247, which authorizes DHS to license and regulate assisted living
facilities.
The amendment implements the Health and Safety Code, §§247.001-247.068.
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 June 21, 2004.
TRD-200404043
Carey Smith
Deputy Commissioner, Legal Services
Texas Department of Human Services
Effective date: August 1, 2004
Proposal publication date: March 5, 2004
For further information, please call: (512) 438-3734
40 TAC §92.62
The amendment is adopted under the Health and Safety Code,
Chapter 247, which authorizes DHS to license and regulate assisted living
facilities.
The amendment implements the Health and Safety Code, §§247.001-247.068.
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 June 21, 2004.
TRD-200404044
Carey Smith
Deputy Commissioner, Legal Services
Texas Department of Human Services
Effective date: August 1, 2004
Proposal publication date: March 5, 2004
For further information, please call: (512) 438-3734
40 TAC §92.129
The new section is adopted under the Health and Safety Code,
Chapter 247, which authorizes DHS to license and regulate assisted living
facilities.
The new section implements the Health and Safety Code, §§247.001-247.068.
§92.129.Authorized Electronic Monitoring (AEM).
(a)
A facility must permit a resident, or the resident's guardian
or legal representative, to monitor the resident's room through the use of
electronic monitoring devices.
(b)
A facility may not refuse to admit an individual and may
not discharge a resident because of a request to conduct authorized electronic
monitoring.
(c)
The Texas Department of Human Services (DHS) Information
Regarding Authorized Electronic Monitoring form must be signed by or on behalf
of all new residents upon admission. The form must be completed and signed
by or on behalf of all current residents by October 1, 2004. A copy of the
form must be maintained in the active portion of the resident's clinical record.
(d)
A resident, or the resident's guardian or legal representative,
who wishes to conduct AEM must request AEM by giving a completed, signed,
and dated DHS Request for Authorized Electronic Monitoring form to the manager
or designee. A copy of the form must be maintained in the active portion of
the resident's clinical record.
(1)
If a resident has the capacity to request AEM and has not
been judicially declared to lack the required capacity, only the resident
may request AEM, notwithstanding the terms of any durable power of attorney
or similar instrument.
(2)
If a resident has been judicially declared to lack the
capacity required to request AEM, only the guardian of the resident may request
AEM.
(3)
If a resident does not have the capacity to request AEM
and has not been judicially declared to lack the required capacity, only the
legal representative of the resident may request AEM.
(A)
A resident's physician makes the determination regarding
the capacity to request AEM. Documentation of the determination must be made
in the resident's clinical record.
(B)
When a resident's physician determines the resident lacks
the capacity to request AEM, a person from the following list, in order of
priority, may act as the resident's legal representative for the limited purpose
of requesting AEM:
(i)
a person named in the resident's medical power of attorney
or other advance directive;
(ii)
the resident's spouse;
(iii)
an adult child of the resident who has the waiver and
consent of all other qualified adult children of the resident to act as the
sole decision-maker;
(iv)
a majority of the resident's reasonably available adult
children;
(v)
the resident's parents; or
(vi)
the individual clearly identified to act for the resident
by the resident before the resident became incapacitated or the resident's
nearest living relative.
(e)
A resident, or the resident's guardian or legal representative,
who wishes to conduct AEM also must obtain the consent of other residents
in the room, using the DHS Consent to Authorized Electronic Monitoring form.
When complete, the form must be given to the manager or designee. A copy of
the form must be maintained in the active portion of the resident's clinical
record. AEM cannot be conducted without the consent of other residents in
the room.
(1)
Consent to AEM may be given only by:
(A)
the other resident or residents in the room;
(B)
the guardian of the other resident, if the resident has
been judicially declared to lack the required capacity; or
(C)
the legal representative of the other resident, determined
by following the same procedure established under subsection (d)(3) of this
section.
(2)
Another resident in the room may condition consent on:
(A)
pointing the camera away from the consenting resident,
when the proposed electronic monitoring is a video surveillance camera; and
(B)
limiting or prohibiting the use of an audio electronic
monitoring device.
(3)
AEM must be conducted in accordance with any limitation
placed on the monitoring as a condition of the consent given by or on behalf
of another resident in the room. The resident's roommate, or the roommate's
guardian or legal representative, assumes responsibility for assuring AEM
is conducted according to the designated limitations.
(4)
If AEM is being conducted in a resident's room, and another
resident is moved into the room who has not yet consented to AEM, the monitoring
must cease until the new resident, or the resident's guardian or legal representative,
consents.
(f)
When the completed DHS Request for Authorized Electronic
Monitoring form and the DHS Consent to Authorized Electronic Monitoring form,
if applicable, have been given to the manager or designee, AEM may begin.
(1)
Anyone conducting AEM must post and maintain a conspicuous
notice at the entrance to the resident's room. The notice must state that
the room is being monitored by an electronic monitoring device.
(2)
The resident, or the resident's guardian or legal representative,
must pay for all costs associated with conducting AEM, including installation
in compliance with life safety and electrical codes, maintenance, removal
of the equipment, posting and removal of the notice, or repair following removal
of the equipment and notice, other than the cost of electricity.
(3)
The facility must meet residents' requests to have a video
camera obstructed to protect their dignity.
(4)
The facility must make reasonable physical accommodation
for AEM, which includes providing:
(A)
a reasonably secure place to mount the video surveillance
camera or other electronic monitoring device; and
(B)
access to power sources for the video surveillance camera
or other electronic monitoring device.
(g)
All facilities, regardless of whether AEM is being conducted,
must post an 8 1/2-inch by 11- inch notice at the main facility entrance.
The notice must be entitled "Electronic Monitoring" and must state, in large,
easy-to-read type, "The rooms of some residents may be monitored electronically
by or on behalf of the residents. Monitoring may not be open and obvious in
all cases."
(h)
A facility may:
(1)
require an electronic monitoring device to be installed
in a manner that is safe for residents, employees, or visitors who may be
moving about the room, and meets all local and state regulations;
(2)
require AEM to be conducted in plain view; and
(3)
place a resident in a different room to accommodate a request
for AEM.
(i)
A facility may not discharge a resident because covert
electronic monitoring is being conducted by or on behalf of a resident. If
a facility discovers a covert electronic monitoring device and it is no longer
covert as defined in §92.3 of this chapter (relating to Definitions),
the resident must meet all the requirements for AEM before monitoring is allowed
to continue.
(j)
All instances of abuse or neglect must be reported to DHS,
as required by §92.102 of this chapter (relating to Abuse, Neglect, or
Exploitation Reportable to the Texas Department of Human Services (DHS) by
Facilities). For purposes of the duty to report abuse or neglect, the following
apply:
(1)
A person who is conducting electronic monitoring on behalf
of a resident is considered to have viewed or listened to a tape or recording
made by the electronic monitoring device on or before the 14th day after the
date the tape or recording is made.
(2)
If a resident, who has capacity to determine that the resident
has been abused or neglected and who is conducting electronic monitoring,
gives a tape or recording made by the electronic monitoring device to a person
and directs the person to view or listen to the tape or recording to determine
whether abuse or neglect has occurred, the person to whom the resident gives
the tape or recording is considered to have viewed or listened to the tape
or recording on or before the seventh day after the date the person receives
the tape or recording.
(3)
A person is required to report abuse based on the person's
viewing of or listening to a tape or recording only if the incident of abuse
is acquired on the tape or recording. A person is required to report neglect
based on the person's viewing of or listening to a tape or recording only
if it is clear from viewing or listening to the tape or recording that neglect
has occurred.
(4)
If abuse or neglect of the resident is reported to the
facility and the facility requests a copy of any relevant tape or recording
made by an electronic monitoring device, the person who possesses the tape
or recording must provide the facility with a copy at the facility's expense.
The cost of the copy must not exceed the community standard. If the contents
of the tape or recording are transferred from the original technological format,
a qualified professional must do the transfer.
(5)
A person who sends more than one tape or recording to DHS
must identify each tape or recording on which the person believes an incident
of abuse or evidence of neglect may be found. Tapes or recordings should identify
the place on the tape or recording that an incident of abuse or evidence of
neglect may be found.
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 June 21, 2004.
TRD-200404045
Carey Smith
Deputy Commissioner, Legal Services
Texas Department of Human Services
Effective date: August 1, 2004
Proposal publication date: March 5, 2004
For further information, please call: (512) 438-3734
Chapter 92.
LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES
Subchapter C. STANDARDS FOR LICENSURE
Subchapter D. FACILITY CONSTRUCTION
Subchapter G. MISCELLANEOUS PROVISIONS
Subchapter H. ENFORCEMENT