The Texas Department of Human Services (DHS) proposes to amend §92.3, concerning definitions; §92.41, concerning standards for Type A, Type B, and Type E assisted living facilities; §92.62, concerning general requirements; §92.559, concerning What is the administrative penalty schedule?; and new §92.129, concerning authorized electronic monitoring (AEM), in its Licensing Standards for Assisted Living Facilities chapter.

The purpose of the amendments and new section is to implement changes mandated by the 78th Texas Legislature and correct references within the chapter. The amendment to §92.3 adds the definitions for authorized electronic monitoring, covert electronic monitoring, and electronic monitoring device; corrects a licensing standards reference; and corrects the address for the National Fire Protection Association. New §92.129 adds the requirement that AEM be allowed in assisted living facilities and outlines procedures to follow for electronic monitoring. The amendment to §92.559 adds an administrative penalty related to AEM. The amendment to §92.62 adds the requirement for assisted living facilities constructed or licensed after August 1, 2004, to have a central air conditioning system, or a substantially similar air conditioning system, that is capable of maintaining a temperature suitable for resident comfort within areas used by residents. The amendment to §92.41 corrects a reference to the Nursing Practice Act.

Gordon Taylor, Chief Financial Officer, has determined that, for the first five-year period the proposed sections are in effect, there may be a fiscal implication for state government, but not for local government, as a result of enforcing or administering the sections. If an administrative penalty is imposed for violation of the rules on AEM, it would bring in revenue to the state in the amount of the penalty, but it is not possible to anticipate the number of penalties that might be imposed during the first five-year period.

Bettye M. Mitchell, Deputy Commissioner for Long Term Care, 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 is to (1) allow a resident, or the resident's guardian or legal representative, to monitor the resident's room through the use of an electronic monitoring device that will provide an avenue to protect the resident from abuse or neglect; (2) ensure a comfortable environment by maintaining facility temperature at a level that is suitable for resident comfort; (3) enhance the public's ability to locate desired information referenced in the rules; and (4) have rules that comply with current state law.

There may be an adverse economic effect on small or micro businesses as a result of enforcing or administering the sections. There is no cost for facilities to allow AEM as the resident, or resident's guardian or legal representative, is responsible for providing and installing the monitoring equipment if they choose to monitor the resident's room. The administrative penalty is not applied for licensed facilities that comply with the rules concerning AEM. Licensed facilities that violate the rules concerning AEM may be assessed an administrative penalty. The requirement for facilities licensed or constructed after August 1, 2004, to have a central air conditioning unit or substantially similar air conditioning system has no effect on currently licensed facilities, and this requirement for new facilities would normally be incorporated in the cost of starting a business. There is no anticipated economic cost to persons who are required to comply with the proposed sections. There is no anticipated effect on local employment in geographic areas affected by these sections.

Questions about the content of this proposal may be directed to Jeanoyce Wilson at (512) 438-2353 in DHS's Long Term Care-Regulatory Policy Section. Written comments on the proposal may be submitted to Supervisor, Rules Unit-093, Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register .

Subchapter A. INTRODUCTION

40 TAC §92.3

The amendment is proposed 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

§92.3.Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.

(1) - (3) (No change.)

(4) Authorized electronic monitoring (AEM)--The placement of an electronic monitoring device in a resident's room and using the device to make tapes or recordings after making a request to the facility to allow electronic monitoring.

(5) [ ~~(4)~~ ] Change of ownership--A change: of 50% or more in the ownership of the business organization that is licensed to operate the facility; in the owner holding the facility license; or in the federal tax payer identification number.

(6) [ ~~(5)~~ ] Co-mingles--The laundering of wearing apparel and/or linens of two or more individuals together.

(7) [ ~~(6)~~ ] Controlling person--A person with the ability, acting alone or with others, to directly or indirectly, influence, direct, or cause the direction of the management, expenditure of money, or policies of an assisted living facility or other person. A controlling person includes:

(A) a management company, landlord, or other business entity that operates or contracts with others for the operation of an assisted living facility;

(B) any person who is a controlling person of a management company or other business entity that operates an assisted living facility or that contracts with another person for the operation of an assisted living facility; and

(C) any other individual who, because of a personal, familial, or other relationship with the owner, manager, landlord, tenant, or provider of an assisted living facility, is in a position of actual control or authority with respect to the facility, without regard to whether the individual is formally named as an owner, manager, director, officer, provider, consultant, contractor, or employee of the facility. This does not include an employee, lender, secured creditor, landlord, or other person who does not exercise formal or actual influence or control over the operation of an assisted living facility.

(8) Covert electronic monitoring--The placement and use of an electronic monitoring device that is not open and obvious, and the facility and DHS have not been informed about the device by the resident, by a person who placed the device in the room, or by a person who uses the device.

(9) [ ~~(7)~~ ] DHS--Texas Department of Human Services.

(10) [ ~~(8)~~ ] Dietitian--A person who currently holds a license or provisional license issued by the Texas State Board of Examiners of Dietitians.

(11) [ ~~(9)~~ ] Disclosure statement--A department-designed form for prospective residents or their representatives that each assisted living facility must complete. The form contains information regarding the preadmission, admission, and discharge process; resident assessment and service plans; staffing patterns; the physical environment of the facility; resident activities; and facility services.

(12) Electronic monitoring device--Video surveillance cameras and audio devices installed in a resident's room, designed to acquire communications or other sounds that occur in the room. An electronic, mechanical, or other device used specifically for the nonconsensual interception of wire or electronic communication is excluded from this definition.

(13) [ ~~(10)~~ ] Facility--An establishment under the scope of Assisted Living Facility Licensing Act, Health and Safety Code, Chapter 247, which furnishes room, board, and one or more personal care services.

(14) [ ~~(11)~~ ] Fire Suppression Authority--The paid or volunteer fire-fighting organization or tactical unit that is responsible for fire suppression operations and related duties once a fire incident occurs within its jurisdiction.

(15) [ ~~(12)~~ ] Governmental unit--The state or any county, municipality, or other political subdivision, or any department, division, board, or other agency of any of the foregoing.

(16) [ ~~(13)~~ ] Health care professional--An individual licensed, certified, or otherwise authorized to administer health care, for profit or otherwise, in the ordinary course of business or professional practice. The term includes a physician, registered nurse, licensed vocational nurse, licensed dietitian, physical therapist, and occupational therapist.

(17) [ ~~(14)~~ ] Immediate threat--There is considered to be an immediate threat to the health or safety of a resident, or a situation is considered to put the health or safety of a resident in immediate jeopardy, if there is a situation in which an assisted living facility's noncompliance with one or more requirements of licensure has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.

(18) [ ~~(15)~~ ] Immediately available--The capacity of facility staff to immediately respond to an emergency after being notified through a communication and/or alarm system. The staff is to be no more than 600 feet from the farthest resident.

(19) [ ~~(16)~~ ] Management services--Services provided under contract between the owner of a facility and a person to provide for the operation of a facility, including administration, staffing, maintenance, or delivery of resident services. Management services do not include contracts solely for maintenance, laundry, or food services.

(20) [ ~~(17)~~ ] Manager--The individual in charge of the day-to-day operation of the facility.

(21) [ ~~(18)~~ ] Medication--Medication is any substance:

(A) recognized as a drug in the official United States Pharmacopoeia, Official Homeopathic Pharmacopoeia of the United States, Texas Drug Code Index or official National Formulary, or any supplement to any of these official documents;

(B) intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease;

(D) intended for use as a component of any substance specified in this definition. It does not include devices or their components, parts, or accessories.

(22) [ ~~(19)~~ ] Medication administration--The direct application of a medication or drug to the body of a resident by an individual legally allowed to administer medication in the State of Texas.

(23) [ ~~(20)~~ ] Medication assistance or supervision--The assistance or supervision of the medication regimen by facility staff. Refer to §92.41(j) [ ~~§92.41(i)~~ ] of this chapter (relating to Standards for Type A, Type B, and Type E Assisted Living Facilities).

(24) [ ~~(21)~~ ] Medication (self-administration)--The capability of residents to administer their own medication/treatments without assistance from the facility staff.

(25) [ ~~(22)~~ ] NFPA 101--The 1988 publication titled "NFPA 101 Life Safety Code" published by the National Fire Protection Association, Inc., 1 Batterymarch Park, Quincy, Massachusetts 02169 [ ~~02269~~ ].

(26) [ ~~(23)~~ ] Person--Any individual, firm, partnership, corporation, association, or joint stock association, and the legal successor thereof.

(27) [ ~~(24)~~ ] Person with a disclosable interest--Any person who owns 5.0% interest in any corporation, partnership, or other business entity that is required to be licensed under Health and Safety Code, Chapter 247. A person with a disclosable interest does not include a bank, savings and loan, savings bank, trust company, building and loan association, credit union, individual loan and thrift company, investment banking firm, or insurance company unless such entity participates in the management of the facility.

(28) [ ~~(25)~~ ] Personal care services--Assistance with meals, dressing, movement, bathing, or other personal needs or maintenance; the administration of medication or the assistance with or supervision of medication; or general supervision or oversight of the physical and mental well-being of a person who needs assistance to maintain a private and independent residence in the facility or who needs assistance to manage his or her personal life, regardless of whether a guardian has been appointed for the person.

(29) [ ~~(26)~~ ] Physician--A practitioner licensed by the Texas State Board of Medical Examiners.

(30) [ ~~(27)~~ ] Resident--Anyone accepted for care in the assisted living facility.

(31) [ ~~(28)~~ ] Respite--The provision by a facility of room, board, and care at the level ordinarily provided for permanent residents of the facility to a person for not more than 60 days for each stay in the facility.

(32) [ ~~(29)~~ ] Restraints--Chemical restraints are psychoactive drugs administered for the purposes of discipline or convenience and are not required to treat the resident's medical symptoms. Physical restraints are any manual method, or physical or mechanical device, material, or equipment attached or adjacent to the resident that restricts freedom of movement.

(33) [ ~~(30)~~ ] Safety--Protection from injury or loss of life due to such conditions as fire, electrical hazard, unsafe building or site conditions, and the hazardous presence of toxic fumes and materials.

(34) [ ~~(31)~~ ] Seclusion--The placement of a resident apart from other residents for any period of time in an area from which egress is prevented.

(35) [ ~~(32)~~ ] Service plan--A written description of the medical care or the supervision and non-medical care needed by a person.

(36) [ ~~(33)~~ ] Short-term acute episode--An illness of less than 30 days duration.

(37) [ ~~(34)~~ ] Staff--Any employee of an assisted living facility.

(38) [ ~~(35)~~ ] Standards--The minimum licensing standards in Subchapter C of this chapter (relating to Standards for Licensure) intended to protect the health and safety of the residents.

(39) [ ~~(36)~~ ] Terminal condition--A medical diagnosis, certified by a physician, of an illness that will result in death in six months or less.

(40) [ ~~(37)~~ ] Universal precautions--An approach to infection control in which blood, any body fluids visibly contaminated with blood, and all body fluids in situations where it is difficult or impossible to differentiate between body fluids are treated as if known to be infectious for HIV, hepatitis B, and other blood-borne pathogens.

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 February 20, 2004.

TRD-200401201

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: April 4, 2004

For further information, please call: (512) 438-3734

Subchapter C. STANDARDS FOR LICENSURE

40 TAC §92.41

The amendment is proposed 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

§92.41.Standards for Type A, Type B, and Type E Assisted Living Facilities.

(a) - (i) (No change.)

(j) Medications.

(1) Administration. Medications must be administered according to physician's orders.

(A) Residents who choose not to or cannot self-administer their medications must have their medications administered by a person who:

(i) - (ii) (No change.)

(iii) is an employee of the facility to whom the administration of medication has been delegated by a registered nurse, who has trained them to administer medications or verified their training. The delegation of the administration of medication is governed by 22 TAC Chapter 225 (concerning RN Delegation to Unlicensed Personnel and Tasks Not Requiring Delegation in Independent Living Environments for Clients with Stable and Predictable Conditions) [ ~~218 (concerning Delegation of Selected Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel)~~ ], which implements the Nursing [ ~~Nurse~~ ] Practice Act.

(B) - (D) (No change.)

(2) - (6) (No change.)

(k) - (p) (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 February 20, 2004.

TRD-200401202

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: April 4, 2004

For further information, please call: (512) 438-3734

Subchapter D. FACILITY CONSTRUCTION

40 TAC §92.62

The amendment is proposed 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

§92.62.General Requirements.

(a) - (h) (No change.)

(i) General safety features.

(1) - (9) (No change.)

(10) Cooling and heating must be provided for occupant comfort. Conditioning systems must be capable of maintaining the comfort ranges of 68 degrees Fahrenheit to 82 degrees Fahrenheit in resident-use areas. A facility constructed or licensed after August 1, 2004, must have a central air conditioning system, or a substantially similar air conditioning system, that is capable of maintaining a temperature suitable for resident comfort within areas used by residents. Heating, ventilating, and air conditioning (HVAC) equipment must comply with the provisions of NFPA 90A or 90B, as applicable. NFPA 90A requires automatic shut down upon activation of the fire alarm in HVAC systems of over 2,000 cubic feet per minute (cfm) capacity.

(11) - (15) (No change.)

(j) - (m) (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 February 20, 2004.

TRD-200401203

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: April 4, 2004

For further information, please call: (512) 438-3734

Subchapter G. MISCELLANEOUS PROVISIONS

40 TAC §92.129

The new section is proposed 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.

Figure: 40 TAC §92.129(c)

(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.

(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 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 February 20, 2004.

TRD-200401204

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: April 4, 2004

For further information, please call: (512) 438-3734

Subchapter H. ENFORCEMENT

9. ADMINISTRATIVE PENALTIES

40 TAC §92.559

The amendment is proposed under the Health and Safety Code, Chapter 247, which authorizes DHS to license and regulate assisted living facilities.