Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 4. AGRICULTURE Part I. Texas Department of Agriculture Chapter 17. Marketing and Development Division TAP, Taste of Texas, Vintage Texas, and Texas Grown Promotional Marks 4 TAC sec.sec.17.51-17.56 The Texas Department of Agriculture adopts amendments to sec.sec.17.51-17.56, without changes to the proposed text as published in the January 15, 1993, issue of the Texas Register (18 TexReg 277). The amendments clarify the standards, requirements, and application and revocation procedures for the voluntary TAP, Taste of Texas, and Texas Grown marketing promotions. In addition, the amendments add the Vintage Texas program. The amendment to sec.17.51 provides additional definitions, and clarifies existing definitions. The amendment to sec.17.52 describes the various programs, changes the contents of the program applications, and sets forth restrictions on the use of the promotional marks. The amendment to sec.17. 53 increases the time period within which an initial determination must be made on an application from 15 to 30 days, and defines the date of notification. The amendment to sec.17.54 clarifies the circumstances under which an application may be denied. The amendment to sec.17.55 establishes a fee for the Vintage Texas program, omits the previous late fee provision, clarifies the annual registration procedures, and provides for automatic termination of registration for nonpayment of annual registration fees. The amendment to sec.17.56 clarifies the procedures for termination of registration to use the promotional marks. The amendments will function by providing for more efficient operation of the promotional mark programs. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Agriculture Code, sec.12.002, which provides the department with the authority to encourage the proper development of agriculture, horticulture, and related industries; sec.12.016, which provides the department with the authority to adopt rules as necessary for the administration of sec.12.002; and sec.12.0175, which provides that if the department establishes a program to promote products grown in the state or products made from ingredients grown in the state, the department may set by rule and collect a fee from each producer that participates in the program. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 14, 1993. TRD-9321695 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: May 6, 1993 Proposal publication date: January 15, 1993 For further information, please call: (512) 463-7583 TITLE 22. EXAMINING BOARDS Part XV. Texas State Board of Pharmacy Chapter 281. General Provisions 22 TAC sec.sec.281.2, 281.4, 281.23-281.25, 281.28, 281.29, 281. 32, 281.34, 281.35, 281.48, 281.62, 281.63, 281.70, 281.71 The Texas State Board of Pharmacy adopts amendments to sec.sec.281.2, 281.4, 281.23-281.25, 281.28, 281.29, 281.32, 281.34, 281.35, 281.48, 281.70, and 281. 71 and new sec.281.62 and sec.281.63. Section 281.63 and amendments to sec.sec.281. 24, 281.25, 281.35 are adopted with changes to the proposed text as published in the October 30, 1992 issue of the Texas Register (17 TexReg 7637). Sections 281.2, 281.4, 281.23, 281.23, 281.29, 281.31, 281.34, 281.35, 281.48, 281.62, 281.70, and 281.71 are adopted without changes and will not be republished. These amendments and new sections clarify the hearing procedures set forth in the Texas Pharmacy Rules with regard to the new State Office of Administrative Hearings; prohibit a pharmacist from selling, purchasing, trading prescription drug samples; and prohibit a pharmacy from selling, purchasing, trading, or possessing prescription drug samples, unless the pharmacy is owned by a charitable organization, city, state, or county government; is a part of a health care entity which primarily provides health care services to indigent or low income patients; and dispenses or provides the samples to patients at no charge. The agency received one comment concerning the amendments to 281.24 and 281. 25. This commenter noted that the rules referenced the 1954 Internal Revenue Code and the correct reference should be the 1986 Internal Revenue Code. The Board agrees with this commenter and has amended the rules to correct this reference. The new sections and amendments sections are adopted under the Texas Pharmacy Act, (Texas Civil Statutes, Article 4542a-1); sec.16, which gives the Texas State Board of Pharmacy (TSBP) authority to adopt rules for the proper administration and enforcement of the Texas Pharmacy Act; sec.17(a)(4) which gives TSBP the authority to enforce those provisions of the Act relating to the conduct or competence of pharmacists practicing in this state and the conduct of pharmacies operating in this state; and sec.17(b) which gives TSBP the authority to regulate the delivery or distribution of prescription drugs and devices. sec.281.24. Grounds for Discipline for a Pharmacist License. (a) For the purposes of the Act, sec.26(a), unprofessional conduct shall include, but not be limited to: (1)-(26) (No change.) (27) the sale, purchase, or trade or the offer to sell, purchase, or trade of: (A) prescription drug samples; provided however, this subdivision does not apply to: (i) prescription drugs provided by a manufacturer as starter prescriptions or as replacement for such manufacturer's out-dated drugs; (ii) prescription drugs provided by a manufacturer in replacement for such manufacturer's drugs that were dispensed pursuant to written starter prescriptions; or (iii) prescription drug samples possessed by a pharmacy of a health care entity which provides health care primarily to indigent or low income patients at no or reduced cost and if: (I) the samples are possessed in compliance with the Prescription Drug Marketing Act of 1987; (II) the pharmacy is owned by a charitable organization described in the Internal Revenue Code of 1986, or by a city, state, or county government; and (III) the samples are for dispensing or provision at no charge to patients of such health care entity. (B) prescription drugs: (i) sold for export use only; (ii) purchased by a public or private hospital or other health care entity; or (iii) donated or supplied at a reduced price to a charitable organization described in the Internal Revenue Code of 1986, sec.501(c)(3); (C) subparagraph (B) of this paragraph does not apply to: (i) the purchase or other acquisition by a hospital or other health care entity which is a member of a group purchasing organization or from other hospitals or health care entities which are members of such organization; (ii) the sale, purchase, or trade of a drug or an offer to sell, purchase, or trade a drug by an organization described in subparagraph (B)(iii) of this paragraph to a nonprofit affiliate of the organization to the extent otherwise permitted by law; (iii) the sale, purchase or trade of a drug or an offer to sell, purchase, or trade a drug among hospitals or other health care entities which are under common control; (iv) the sale, purchase, or trade of a drug or an offer to sell, purchase, or trade a drug for emergency medical reasons including the transfer of a drug between pharmacies to alleviate temporary shortages of the drug arising from delays in or interruptions of regular distribution schedules; (D) misbranded prescription drugs; (E) prescription drugs beyond the manufacturer's expiration date; or (28) (No change.) (b)-(c) (No change.) sec.281.25. Grounds for Discipline for a Pharmacy License. For the purposes of subdivision (9) of subsection (b) of sec.26 of the Act, a pharmacy fails to establish and maintain effective controls against diversion of prescription drugs when: (1)-(3) (No change.) (4) the pharmacy possesses or engages in the sale, purchase, or trade or the offer to sell, purchase, or trade: (A) prescription drug samples; provided however, this subparagraph does not apply to: (i) prescription drugs provided by a manufacturer as starter prescriptions or as replacement for such manufacturer's outdated drugs; (ii) prescription drugs provided by a manufacturer in replacement for such manufacturer's drugs that were dispensed pursuant to written starter prescriptions; or (iii) prescription drug samples possessed by a pharmacy of a health care entity which provides health care primarily to indigent or low income patients at no or reduced cost and if: (I) the samples are possessed in compliance with the Prescription Drug Marketing Act of 1987; (II) the pharmacy is owned by a charitable organization described in the Internal Revenue Code of 1986, or by a city, state, or county government; and (III) the samples are for dispensing or provision at no charge to patients of such health care entity; (B) prescription drugs: (i) sold for export use only; (ii) purchased by a public or private hospital or other health care entity; or (iii) donated or supplied at a reduced price to a charitable organization described in the Internal Revenue Code of 1986, sec.501(c)(3) and possessed by a pharmacy other than one owned by the charitable organization; (C) subparagraph (B) of this paragraph does not apply to: (i) the purchase or other acquisition by a hospital or other health care entity which is a member of a group purchasing organization or from other hospitals or health care entities which are members of such organization; (ii) the sale, purchase, or trade of a drug or an offer to sell, purchase, or trade a drug by an organization described in subparagraph (B)(iii) of this paragraph to a nonprofit affiliate of the organization to the extent otherwise permitted by law; (iii) the sale, purchase, or trade of a drug or an offer to sell, purchase, or trade a drug among hospitals or other health care entities which are under common control; (iv) the sale, purchase, or trade of a drug or an offer to sell, purchase, or trade a drug for emergency medical reasons including the transfer of a drug between pharmacies to alleviate temporary shortages of the drug arising from delays in or interruptions of regular distribution schedules; (E) prescription drugs beyond the manufacturer's expiration date unless removed from dispensing stock and quarantined. sec.281.35. Admission of Facts or of Genuineness of Documents. (a) Any time after an agency has properly served notice of its intention to institute adjudicative proceedings in a contested case, a party may deliver or cause to be delivered to any other party or his attorney of record a written request for the admission by such party of the genuineness of any relevant documents described in and exhibited with the request or of the truth of any relevant matters of fact set forth by the request. Copies of the documents shall be delivered with the request unless copies have already been furnished. Whenever a party is represented by an attorney of record, delivery of a request for admission shall be made to such party's attorney unless delivery to the party is ordered by the presiding officer. The request for admission shall state that it is made under this section and that each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request not less than 15 days after delivery thereof or within such further time as the presiding officer may allow on motion and notice, the party to whom the request is directed, delivers or causes to be delivered to the party requesting the admission or such party's attorney of record a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why the party cannot truthfully either admit or deny those matters. A true copy of a request for admissions or of a sworn statement in reply thereto, shall be filed promptly with the state office of administrative hearings or presiding officer by the party making such request or such sworn statement. (b)-(c) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 15, 1993. TRD-9321684 Fred S. Brinkley, Jr., R.Ph., M.B.A Executive Director/Secretary Texas State Board of Pharmacy Effective date: May 6, 1993 Proposal publication date: October 30, 1992 For further information, please call: (512) 832-0661 Chapter 295. Pharmacists 22 TAC sec.295.9 The Texas State Board of Pharmacy adopts new sec.295.9, concerning pharmacists' inactive licenses without changes to the proposed text as published in the October 30, 1992, issue of the Texas Register (17 TexReg 7640). This new rule sets out procedures for a pharmacist to place his or her license on inactive status if the pharmacist has not completed the required continuing education to renew the license and the pharmacist is not practicing pharmacy in Texas. There were no comments received regarding adoption of the new section. The new section is adopted under the Texas Pharmacy Act (Texas Civil Statutes, Article 4542a-1), sec.24B(a), which gives the Texas State Board of Pharmacy (TSBP) the authority to adopt a system for the placement on inactive status of a license held by a person who is licensed by the Board to practice pharmacy but who is not eligible to renew the license for failure to comply with the continuing education requirements and who is not engaged in the practice of pharmacy in this state; and sec.16(a) which gives TSBP the authority to adopt rules for the proper administration and enforcement of the Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 15, 1993. TRD-9321685 Fred S. Brinkley, Jr., R.Ph., M.B.A Executive Director/Secretary Texas State Board of Pharmacy Effective date: May 6, 1993 Proposal publication date: October 30, 1992 For further information, please call: (512) 832-0661 Chapter 303. Destruction of Dangerous Drugs and Controlled Substances. 22 TAC sec.303.1 The Texas State Board of Pharmacy adopts an amendment to sec.303.1, concerning the destruction of drugs dispensed to patients in health care facilities, without changes to the proposed text as published in the October 30, 1992, issue of the Texas Register (17 TexReg 7641). The rule will allow the witnesses for the destruction, inventorying, and transfer to a waste disposal company of dispensed drugs to be both the facility administrator and either the Director of Nursing or Director of Nursing or Acting Director of Nursing. There were no comments received regarding adoption of the amendment. The amendment is adopted under the Texas Pharmacy Act (Texas Civil Statutes, Article 4542a-1) sec.17(b)(1), which gives the Texas State Board of Pharmacy (TSBP) the authority to regulate the delivery or distribution of prescription drugs and devices and sec.16(a), which gives TSBP the authority to adopt rules for the proper administration and enforcement of the Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 15, 1993. TRD-9321686 Fred S. Brinkley, Jr., R.Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Effective date: May 6, 1993 Proposal publication date: October 30, 1992 For further information, please call: (512) 832-0661 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 145. Long-Term Care Subchapter A. Federal Laws and Regulations Covering Nursing and Convalescent Homes The Texas Department of Health (department) adopts to repeal existing sec.sec.145.1-145.2, 145.11-145.25, 145.31-145.43, 145.51-145.70, 145.81-145.90, 145.92-145.97, 145.101-145.102, 145.111, 145.131, 145.141-145.147, 145.161-145. 174, 145.191-145.195, 145.211-145.217, 145.251-145.265, 145.271-145.285, 145. 301-145.305, and 145.321-145.335, concerning long term care. The repealed sections are being replaced, modified, and updated by the following adopted new sections and chapters in this title of the Texas Administrative Code: sec.111.4, concerning memorandum of understanding relating to long term care service for the elderly; Chapter 145, concerning nursing facilities and related institutions; Chapter 146, concerning personal care facilities; Chapter 152, concerning procedures for covering certification of nursing facilities, skilled nursing facilities, and intermediate care facilities for persons with mental retardation and related conditions which participate in medicare or medicaid under Titles XVIII and XIX of the Social Security Act; and Chapter 153, concerning minimum licensing standards for adult day care and adult day health care facilities. The proposed repeal of sec.145.91 was not adopted, because proposed new sec.145.235, which was to replace existing sec.145. 91, is being reproposed with substantive changes; therefore existing sec.145.91 has been reproposed for repeal. The proposed repeal of sec.145.121 was not adopted because the MOU is under review at this time. The new sections and chapters that are adopted with changes to the proposed text are being published in this issue of the Texas Register. The repeal of existing long term care rules and the adoption of new sections will improve the care of residents in nursing facilities and related institutions by deleting outdated rules. No comments were received regarding adoption of the repeals. 25 TAC sec.145.1, sec.145.2 The repeals are adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with authority to adopt standards concerning nursing facilities and related institutions; and sec.12.001, which provides the board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321463 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: September 1, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 458-7236 Subchapter B. Minimum Standards for Nursing Homes 25 TAC sec.sec.145.11-145.25 The repeals are adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with authority to adopt standards concerning nursing facilities and related institutions; and sec.12.001, which provides the board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321464 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: September 1, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 458-7236 Subchapter C. Minimum Standards for Custodial Care Homes 25 TAC sec.sec.145.31-145.43 The repeals are adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with authority to adopt standards concerning nursing facilities and related institutions; and sec.12.001, which provides the board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321465 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: September 1, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 458-7236 Subchapter D. Minimum Standards for Maternity Homes 25 TAC sec.sec.145.51-145.70 The repeals are adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with authority to adopt standards concerning nursing facilities and related institutions; and sec.12.001, which provides the board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321466 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: September 1, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 458-7236 Subchapter E. Procedures on Long-Term Care Facilities 25 TAC sec.sec.145.81-145.90, 145.92-145.97 The repeals are adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with authority to adopt standards concerning nursing facilities and related institutions; and sec.12.001, which provides the board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321467 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: September 1, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 458-7236 Subchapter F. Institutions Subject to Licensure Under Texas Civil Statutes, Article 4442c 25 TAC sec.145.101, sec.145.102 The repeals are adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with authority to adopt standards concerning nursing facilities and related institutions; and sec.12.001 which provides the board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321468 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: September 1, 1993 Proposal publication date: October 20, 1993 For further information, please call: (512) 458-7236 Subchapter G. Licensing and Medical Certification Standards for Nursing Homes 25 TAC sec.145.111 The repeal is adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with authority to adopt standards concerning nursing facilities and related institutions; and sec.12.001 which provides the board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321469 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: September 1, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 458-7236 Subchapter I. Employee Orientation and Training in Nursing Homes and Custodial Care Homes 25 TAC sec.145.131 The repeal is adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with authority to adopt standards concerning nursing facilities and related institutions; and sec.12.001 which provides the board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321470 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: September 1, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 458-7236 Subchapter J. Procedures Covering Certification and Termination of Certification of Long Term Care Facilities which Participate in the Title XIX Assistance Program 25 TAC sec.sec.145.141-145.147 The repeals are adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with authority to adopt standards concerning nursing facilities and related institutions; and sec.12.001 which provides the board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321471 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: September 1, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 458-7236 Subchapter K. Grading System for Nursing Facilities 25 TAC sec.sec.145.161-145.174 The repeals are adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with authority to adopt standards concerning nursing facilities and related institutions; and sec.12.001 which provides the board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321472 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: September 1, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 458-7236 Subchapter M. Minimum Licensing Standards for Adult Day Care and Adult Day Health Care Facilities 25 TAC sec.sec.145.191-145.195 The repeals are adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with authority to adopt standards concerning nursing facilities and related institutions; and sec.12.001 which provides the board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321473 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: September 1, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 458-7236 Subchapter N. Minimum Licensing Standards for Facilities Serving Persons with Mental Retardation in Texas 25 TAC sec.sec.145.211-145.217 The repeals are adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with authority to adopt standards concerning nursing facilities and related institutions; and sec.12.001 which provides the board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321474 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: September 1, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 458-7236 Subchapter P. Medication Aides 25 TAC sec.sec.145.251-145.265 The repeals are adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with authority to adopt standards concerning nursing facilities and related institutions; and sec.12.001 which provides the board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321475 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: September 1, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 458-7236 Subchapter S. Minimum Licensing Standards for Personal Care Facilities 25 TAC sec.sec.145.321-145.335 The repeals are adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with authority to adopt standards concerning nursing facilities and related institutions; and sec.12.001 which provides the board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321478 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: September 1, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 458-7236 Subchapter Q. Planning and Construction for Nursing Homes 25 TAC sec.sec.145.271-145.285 The repeals are adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with authority to adopt standards concerning nursing facilities and related institutions; and sec.12.001 which provides the board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321476 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: September 1, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 458-7236 Subchapter R. Certification Standards for Alzheimer's and Related Disorders 25 TAC sec.145.301-145.305 The repeals are adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with authority to adopt standards concerning nursing facilities and related institutions; and sec.12.001 which provides the board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321477 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: September 1, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 458-7236 Chapter 145. Nursing Facilities and Related Institutions Subchapter D. Facility Construction Construction Standards for Additions, Remodeling and New Nursing Facilities 25 TAC sec.sec.145.61-145.73 The new sections are adopted under the Health and Safety Code, Chapter 242, which provides the Texas Board of Health (board) with the authority to adopt rules concerning nursing facilities and related institutions; and sec.12. 001 which provides the Board with authority to adopt rules to implement every duty imposed on the board, the department, and the commissioner of health. sec.145.61. Introduction and Application. (a) This subchapter is written for, and shall apply to, new construction, including conversions, additions, and remodelings. The requirements of the Life Safety Code, Standard 101 of the National Fire Protection Association (NFPA), as required under Health and Safety Code, sec.242.039, and other applicable NFPA codes and standards referenced in NFPA 101 shall apply unless otherwise noted or modified in these sections. The provisions of the chapter or subchapter and the provisions of the New Health Care Occupancies of the Life Safety Code are applicable. (1) Life Safety Code, NFPA 101, is a registered trademark of the National Fire Protection Association, Inc., Quincy, Massachusetts 02269. (2) These sections also describe minimum requirements for space use and other architectural and environmental aspects deemed necessary to provide a favorable environment for nursing facility residents. (3) The definitions listed in sec.145.3 of this title (relating to Definitions) also apply to the sections in this subchapter. (4) In addition to the Life Safety Code and the standards referenced therein, this subchapter is subject to the codes, standards, and requirements established by the following: Underwriters Laboratories, Inc. (UL); the American National Standards Institute, Inc. (ANSI) ; the National Electrical Code (NFPA 7O); the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE); and the American Society for Testing Materials (ASTM). Various references to these entities will be made throughout these sections. (b) Existing nursing facilities shall meet, as a minimum, the requirements of Existing Health Care Occupancies of the Life Safety Code, and the requirements concerning physical plant and environment in sec.145.41(n) of this title (relating to Standards for Nursing Facilities). (c) Section 145.41(n) is a companion part of this subchapter. This subchapter must be referenced for new facilities for any requirements that may be in conflict with or exceed sec.145.41(n). (d) All applicable local, state, or national codes and ordinances shall be met as determined by the authority having jurisdiction for those codes and ordinances and by the department. Any conflicts shall be made known to the department for appropriate resolution. (e) The design of structural systems shall be done by or under the direction of a professional engineer who is currently registered by the Texas State Board of Registration for Professional Engineers. New facility construction and projects of unusual complexity require that plans and specifications be done by or under the direction of an architect currently registered by the Texas State Board of Architectural Examiners. Documents shall bear the legible seal of the architect and of the engineer(s). (f) When an existing licensed facility plans building additions or remodeling which includes construction of additional resident beds, then the ratio of bathing units shall be reevaluated to meet minimum standards and the square footage of dining and living areas shall be reevaluated by the department at a minimum of 19 square feet per bed. Conversion of existing living, dining, or activity areas to resident bedrooms shall not reduce these functions to a total area of less than 19 square feet per bed. The dietary department shall be evaluated by the facility's registered or licensed dietitian or architect having knowledge in the design of food service operations. Such evaluation shall be provided to the department. (g) No construction or demolition shall be started prior to submittal of final plans to the department for review and approval. See sec.145.65 of this title (relating to Exit Provisions) for remodeling safety requirements. (h) No building shall be occupied by residents prior to inspection and approval to occupy by the department. (i) Please note that sec.145.41 of this title specifies many requirements for procedures, policies, and services which should be studied for proper functional planning for resident services. (j) Questions pertaining to architectural or code requirements should be directed to the department: Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3188 (Quality Standards Division, Architectural Section). (k) The words "shall" or "must" are requirements. The word "should" is a recommendation which is expected to be followed unless there is valid reason not to do so. (l) Nothing in these sections shall be construed as prohibiting a better type of building or construction, more space, services, features, or greater degree of safety than the minimum requirements specified herein. sec.145.62. Location and Site. (a) Site approval is normally required of the local health officer, building department, and fire marshal having jurisdiction. Any conditions considered to be a fire, safety, or health hazard will be grounds for disapproval of the site by the department. New facilities shall not be built in an area designated as a floodplain of 100 years or less. (b) Site grades shall provide for positive surface water drainage so that there will be no ponding or standing water on the designated site. This does not apply to local government requirements for engineered controlled run-off holding ponds, etc. (c) A new building (or addition) shall be set back at least 10 feet from the property lines except as otherwise approved by the department. (d) Exit doors from the building shall not open directly onto a drive for vehicular traffic, but shall be set back at least six feet from the edge of such drive (measured from the end of the building wall in the case of a recessed door) to prevent accidents due to lack of visual warning. (e) Walks shall be provided as required from all exits and shall be of non- slip surfaces free of hazards. Walks shall be at least 48 inches wide except as otherwise approved. Ramps should be used in lieu of steps where possible for the handicapped and to facilitate bed or wheelchair removal in an emergency. (f) Outdoor activity, recreational, and sitting spaces shall be provided and appropriately designed, landscaped, and equipped. Some shaded and/or covered outside areas are needed. Such areas shall be designed to accommodate residents in wheelchairs. (g) Each facility shall have parking space to satisfy the needs of residents, employees, staff, and visitors. In the absence of a formal parking study, each facility shall provide for a ratio of at least one parking space for every four beds in the facility. This ratio may be reduced slightly in areas convenient to public parking facilities. Space shall be provided for emergency and delivery vehicles. No parking space shall block or inhibit egress from the outside exit doors. Parking spaces and drives shall be at least 10 feet away from windows in bedrooms and dining and living areas. (h) Barriers shall be provided for resident safety from traffic or other site hazards by the use of appropriate methods such as fences, hedges, retaining walls, railings, or other landscaping. Such barriers shall not inhibit the free emergency egress to a safe distance away from the building. (i) Open or enclosed courts with resident rooms or living areas opening upon them shall not be less than 20 feet in the smallest dimension unless otherwise approved by the department. Exceptions would be as follows. (1) Nonparallel wings forming an acute angle may have a maximum of two such windows each side less than 20 feet but not less than 10 feet. (2) Windows may be separated by a distance equal to the depth of the court but not less than 10 feet. (3) For unusual or unique site conditions, courts with resident rooms opening upon them on one side only shall be not less than 10 feet in the smallest dimension, provided that the opposite wing does not contain a hazardous area and the wall has no openings which could transfer fire conditions to the resident room side. (j) Auxiliary buildings located within 20 feet of the main building and which contain hazardous areas such as laundry and storage buildings shall meet the applicable Life Safety Code requirements for separation and construction or the buildings shall be moved to be 20 feet or farther away from the main building. (k) Other buildings on the site shall meet the appropriate occupancy section or separation requirements of the Life Safety Code. (l) Fire service and access shall be as follows. (1) The facility shall be served by a paid or volunteer fire department. The fire department must provide written assurance to the department that the fire department can respond to an emergency at the facility within an appropriately prompt time for the travel conditions involved. (2) The facility shall be served by an adequate water supply that is satisfactory and accessible for fire department use as determined by the fire department serving the facility and by the department. (3) There shall be at least one readily accessible fire hydrant located within 300 feet of the building. The hydrant shall be on a minimum six inch service line, or else there shall be an approved equivalent (such as a storage tank). The hydrant, its location, and service line, or equivalent shall be as approved by the local fire department and the department. (4) The building shall have suitable all-weather fire lanes for access as required by local fire authorities and the department. As a minimum, there shall be access to two sides of the building by an all-weather lane at least 10 feet wide. Fire lanes shall have at least 14 feet in clearance width above grade (two feet each side of the 10-foot roadbed) and be kept free of obstructions at all times. All-weather access lanes shall be no less than a properly constructed gravel lane. sec.145.63. General Considerations. (a) Services. Nursing facilities shall either contain the elements described in this section or the provider shall indicate the manner in which the needed services are to be made available. Each element provided in the facility must comply with the requirements of this subchapter. Appropriate modifications or deletions in space requirements may be made when services are shared or purchased. (b) Sizes. The sizes of the various departments will depend upon program requirements and organization of services within the facility. Some functions requiring separate spaces or rooms in these minimum requirements may be combined provided that the resulting plan will not compromise the best standards of safety and of medical and nursing practices. (c) Shared or combined services. Nursing facilities may be operated together with hospitals and may share administration, food service, recreation, janitor service, and physical therapy facilities, but must otherwise have clearly identifiable physical separations such as a separate wing or floor. Nursing facilities with different levels of care will require identifiable physical separations. Combined attendant or nurse stations and medication room areas will require some separating construction features. (d) Exterior finishes. Unless otherwise approved by the department, the exterior finish material of buildings classified (per the National Fire Protection Association (NFPA) 220) as fire resistive or protected noncombustible shall be Class A in the Life Safety Code. All others shall be Class A or B in the Life Safety Code. Items of trim may be of combustible material subject to approval by the department. Roofing shall be Underwriter Laboratories (UL) listed as Class A or B. (e) Interior finishes. (1) Life Safety Code requirements for new construction shall be applicable for interior finish of walls, ceilings, and floors. (2) Documentation of finishes, such as copies of lab test reports, material labels, etc., is required. (f) Corridor travel distance. Corridor travel from the nurse station to the farthest resident room must assure prompt service to the resident. The normal travel for nursing efficiency is considered to be not over 85 feet and shall not exceed 150 feet. (g) Accessibility for individuals with disabilities. The facility shall meet the provisions and requirements concerning accessibility for individuals with disabilities in the following laws: the Americans with Disabilities Act 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 shall be submitted to the Texas Department of Licensing and Regulation (Attn: Elimination of Architectural Barriers Program) for accessibility approval under Article 9102. (h) Handrails. Handrails shall be provided on each side of all resident use corridors. Handrails for other areas should be provided as needed to facilitate resident movement or egress. Design of handrails shall be in accordance with the American National Standards Institute (ANSI) A117.1. Such handrails may extend into the minimum required corridor width without widening the corridor (i.e., in an eight foot wide corridor, handrails may project up to 3 1/2 inches on each side). Reference sec.145.72(a)(8) and (9) of this title (relating to Miscellaneous Details) for handrail details. sec.145.64. Architectural Space Planning and Utilization. For supplemental information to this section see sec.145.141 of this title (relating to Plans, Approvals, and Construction Procedures) for drawings and specifications required for review and construction purposes. (1) Resident bedrooms. Each resident bedroom shall meet the following requirements. (A) The maximum room capacity shall be four residents. (B) No more than 25% of the total licensed beds shall be in bedrooms with more than two beds each. (C) Minimum bedroom area, excluding toilet rooms, closets, lockers, wardrobes, alcoves, or vestibules, shall be 100 square feet in single occupancy rooms and 80 square feet per bed in multi-bed rooms. (D) The minimum room dimension shall be 10 feet. The room shall be designed to provide at least 36 inches between beds and 24 inches between any bed and the adjacent (parallel) wall. (E) Each room shall have at least one operable outside window arranged and located so that it can be easily opened from the inside without the use of tools or keys. The maximum allowable sill height (to opening) shall not exceed 36 inches above the floor. All operative windows shall have insect screens. The minimum area of window(s) in each bedroom shall equal at least 16 square feet or 8.0% of the room area, whichever is larger. (F) Each room shall have general lighting, bed reading lights, and night lighting. The night light shall be switched just inside the entrance to each resident room with a silent type switch. A durable nonglare (opaque front panel) reading light securely anchored to the wall, integrally wired, shall be provided for each resident bed. The switch shall be within reach of a resident in the bed. (G) Two duplex (or a fourplex) grounding type receptacles shall be provided beside the head of each bed. Other walls shall have duplex receptacles as needed for TV, radio, razors, hairdryers, clocks, etc. and/or as required by the NFPA 70. National Electrical Code, NFPA 70, is a registered trademark of the National Fire Protection Association, Inc., Quincy, Massachusetts 02269. (H) Each resident shall have access to a toilet room without entering the general corridor area. One toilet room shall serve no more than two resident rooms. The toilet room shall contain a water closet and a lavatory. The lavatory may be omitted from a toilet room which serves two bedrooms if each such resident room contains a lavatory. See paragraph (3)(A) of this section for baths and other toilet facility requirements. (I) Each resident shall have a bed with a comfortable mattress, a bedside stand with at least two enclosed storage spaces, a dresser, and closet or wardrobe space providing privacy for clothing and personal belongings. Clothes storage space shall provide at least 22 inches of lineal hanging space per bed and have closable doors. Chairs and space shall be provided for use by residents and/or visitors. (J) All beds shall have provisions for accepting castors with wheel-locking devices, and all bedfast resident beds shall have castors installed. (K) Each room shall open onto an exit corridor and shall be arranged for convenient resident access to dining, living, and bathing areas. (L) Visual privacy (such as cubicle curtains) shall be available for each resident in multi-bed rooms. Design for privacy shall not restrict resident access to entry, lavatory, or toilet, nor shall it restrict bed evacuation or obstruct sprinkler flow coverage. (M) At least one noncombustible wastebasket shall be provided in each bedroom. (N) See the requirements in sec.145.71(d) (4) of this title (relating to Electrical Requirements) for nurse call systems. (2) Nursing service areas. The service areas listed below shall be located in or readily available to each nursing unit. The size and disposition of each service area will depend upon the number and types of beds to be served. Each service area may be arranged and located to serve more than one nursing unit, but at least one such service area shall be provided on each nursing floor. The maximum distance from a resident room door to a nurse station shall be 150 feet. (A) Nurse stations shall be provided with space for nurses' charting, doctors' charting, and storage for administrative supplies. Nurses' stations shall be located to provide a direct view of resident corridors. A direct view of resident corridors is acceptable if a person can see down the corridors from a point within 24 inches of the outside of the nurse station counter or wall. (B) Lounge and toilet room(s) shall be provided for nursing staff. (C) Lockers and/or security compartments shall be provided for the safekeeping of personal effects of staff. These shall be located convenient to the duty station of personnel or in a central location. (D) Clean utility room(s) shall contain a work counter, sink with high neck faucet with lever controls, and storage facilities. It shall be part of a system for storage and distribution of clean and sterile supply materials. (E) Soiled utility room(s) shall contain a water closet or equivalent flushing rim fixture, a sink large enough to submerge a bedpan with spray hose and high neck faucet with lever controls, work counter, waste receptacle, and linen receptacle. It shall be part of a system for collection and cleaning or disposal of soiled utensils or materials. A separate handwash sink shall be provided if the bedpan disinfecting sink cannot normally be used for handwashing. (F) Provision shall be made for convenient and prompt 24-hour distribution of medication to residents. The medication preparation room shall be under the nursing staff's visual control and contain a work counter, refrigerator, sink with hot and cold water, and locked storage for biologicals and drugs and shall have a minimum area of 50 square feet. The minimum dimension shall be five feet six inches. An appropriate air supply shall be provided to maintain adequate temperature and ventilation for safe storage of medications. For purposes of storage of unrefrigerated medications, the room temperature shall be maintained between 59 degrees and 86 degrees F. (G) Provision shall be made for separate closets or room for clean linens. Corridors shall not be used for folding or cart storage. Storage rooms shall be located and distributed in the building for efficient access to bedrooms. (H) Soiled linen rooms shall be provided as required in paragraph (12) of this section. (I) A nourishment station(s) is usually required in all but the smaller facilities and shall contain a sink equipped for handwashing, equipment for serving nourishment between scheduled meals, refrigerator, and storage cabinets. Ice for residents' service and treatment shall be provided only by icemaker units. This station may be furnished in a clean utility room. (J) An equipment storage room shall be provided for equipment such as intravenous stands, inhalators, air mattresses, and walkers. (K) Parking spaces for stretchers and wheelchairs shall be located out of the path of normal traffic. (3) Residents' bathing and toilet facilities. (A) Bathtubs or showers shall be provided at the rate of one for each 20 beds which are not otherwise served by bathing facilities within residents' rooms. At least one bathing unit shall be provided in each nursing unit. Each tub or shower shall be in an individual room or enclosure which provides space for the private use of the bathing fixture, for drying and dressing, and for a wheelchair and an attendant. Each general use bathing room (those not directly serving adjoining bedrooms) shall be provided with at least one water closet (in a stall, room, or area for privacy) and one lavatory. Such bathing room(s) shall be located conveniently to the bedroom area it serves and shall not be more than 100 feet from the farthest bedroom. See requirements in paragraph (1)(H) of this section for resident toilets at bedrooms. Each facility shall provide at least one whirlpool tub unit as one of the required bathing units. (B) At least 50% of bathrooms and toilet rooms, fixtures, and accessories shall be designed and provided to meet criteria under the Americans with Disabilities Act for individuals with disabilities unless otherwise approved by the department. (C) All rooms containing bathtubs, sitz baths, showers, and water closets, subject to occupancy by residents, shall be equipped with swinging doors and hardware which will permit access from the outside in any emergency. (D) Bathing areas shall be provided with safe and effective auxiliary or supplementary heating. Bathing areas shall be free of drafts and shall have adequate exhaust ducted to the outside to minimize excess moisture retention and resulting mold and mildew problems. (E) Tubs and showers shall be provided with slip proof bottoms. (F) Lavatories and handwashing facilities shall be securely anchored to withstand an applied downward load of not less than 250 pounds on the front of the fixtures. (G) Provision shall be made for sanitary hand drying at lavatories. There shall be paper towel dispensers, or separate towel racks separate toothbrush holders, etc. (H) Mirrors shall be arranged for convenient use by residents in wheelchairs as well as by residents in a standing position and the minimum size shall be 15 inches in width by 30 inches in height, or tilt type. (I) Rooms with toilets shall be provided with effective forced air exhaust ducted to the exterior to help remove odors. Ducted manifold systems are recommended for some multiple type installations. (J) Floors, walls, and ceilings shall have nonabsorbent surfaces, be smooth, and easily cleanable. (4) Sterilizing and disposal facilities. (A) An effective system for sterilization of equipment and supplies shall be provided. (B) Space and facilities shall be provided for the sanitary storage of waste by incineration, mechanical destruction, compaction, containerization, removal, or by a combination of these techniques. (5) Resident living areas. Social-diversional spaces such as living rooms, dayrooms, lounges, sunrooms, etc., shall be provided on a sliding scale as follows: [graphic] (A) Where a required way of exit (or a service way) is through such living (or dining) area, a pathway equal to the corridor width will normally be deducted for calculation purposes and discounted from that area. Such exit pathways must be kept clear of obstructions. (B) Each resident living room and dining room shall have at least one outside window. The window area shall be equal to at least 8.0% of the total room floor area. Skylighting may be used to fulfill one-half of the 8.0% minimum area. (C) See sec.145.61(f) of this title (relating to Introduction and Application) for bed capacity increases to existing facilities. (D) Open or enclosed seating space shall be provided within view of the main nurse station that will allow furniture or wheelchair parking that does not obstruct the corridor way of egress. (6) Dining space. Dining space shall be adequate for the number of residents served, but no less than 10 square feet per resident bed. See sec.145.61(f) of this title for bed capacity increases to existing facilities. (7) Dietary facilities. (A) Kitchens (main/dietary) shall be as follows. (i) Kitchens will be evaluated on the basis of their performance in the sanitary and efficient preparation and serving of meals to residents. Consideration shall be given to planning for the type of meals served, the overall building design, the food service equipment, arrangement, and the work flow involved in the preparation and delivery of food. Plans shall include a large-scale detailed kitchen layout designed by a registered or licensed dietitian or architect having knowledge in the design of food service operations. (ii) Kitchens shall be designed so that room temperature at peak load (summertime), shall not exceed a temperature of 85 degrees Fahrenheit measured over the room at the five-foot level. The amount of supply air shall take into account the large quantities of air that may be exhausted at the range hood and dishwashing area. (iii) Operational equipment shall be provided as planned and scheduled by the facility consultants for preparing and serving meals and for refrigerating and freezing of perishable foods, as well as equipment in, and/or adjacent to, the kitchen or dining area for producing ice. (iv) Facilities for washing and sanitizing dishes and cooking utensils shall be provided. Such facilities shall be designed based on the number of meals served and the method of serving (permanent or disposable dishware, etc.). As a minimum, the kitchen shall contain a multi-compartment sink large enough to immerse pots and pans. In all facilities. a mechanical dishwasher is required for washing and sanitizing dishes. Separation of soiled and clean dish areas shall be maintained, including air flow. (v) A vegetable preparation sink shall be provided. It shall be separate from the pot sinks. (vi) A supply of hot and cold water shall be provided. Hot water for sanitizing purposes shall be 180 degrees Fahrenheit or the manufacturer's suggested temperature for chemical sanitizers. For mechanical dishwashers the temperature measurement is at the manifold. (vii) A kitchen shall be provided with a hand-washing lavatory in the food preparation area with hot and cold water, soap, paper towel dispenser, and waste receptacle. The dish room area shall have ready access to a handwashing lavatory. (viii) Staff rest room facilities with lavatory shall be directly accessible to kitchen staff without traversing resident use areas. The rest room door shall not open directly into the kitchen (i.e., provide a vestibule). (ix) Janitorial facilities shall be provided exclusively for the kitchen and shall be located in the kitchen area. (x) Nonabsorbent smooth finishes or surfaces shall be used on kitchen floors, walls, and ceilings. Such surfaces shall be capable of being routinely cleaned and sanitized to maintain a healthful environment. Counter and cabinet surfaces, inside and outside, shall also have smooth, cleanable, relatively nonporous finishes. (xi) Operable windows shall have insect screens provided. (xii) Doors between kitchen and dining or serving areas shall have 1/4 inch fixed wire glass view panel mounted in a steel frame. Reference sec.145.68(d) of this title (relating to Hazardous Areas) . (xiii) See sec.145.68 of this title for hazardous area requirements. (xiv) A garbage can or cart washing area with drain and hot water shall be provided. (xv) Floor drains shall be provided in the kitchen and dishwashing areas. (xvi) Vapor removal from cooking equipment shall be designed and installed in accordance with NFPA 96. (xvii) Grease traps shall be provided as required. (xviii) See sec.145.61(f) of this title for bed capacity increases to existing facilities. (B) Food storage areas shall be as follows. (i) Food storage areas shall provide for storage of a seven-day minimum supply of nonperishable foods at all times. (ii) Shelves shall be adjustable wire type. Walls and floors must have a nonabsorbent finish to provide a cleanable surface. No foods shall be stored on the floor; dollies, racks or pallets may be used to elevate foods not stored on shelving. (iii) Dry foods storage shall have an effective venting system to provide for positive air circulation. (iv) The maximum room temperature for food storage shall not exceed 85 degrees F at any time. The measurement shall be taken at the highest food storage level but not less than five feet from the floor. (v) Food storage areas may be located apart from the food preparation area as long as there is space adjacent to the kitchen for necessary daily usage. (C) Auxiliary serving kitchens (not contiguous to food preparation/serving area) shall be as follows. (i) Where service areas other than the kitchen are used to dispense foods, these shall be designated as food service areas and shall have equipment for maintaining required food temperatures while serving. (ii) Separate food service areas shall have hand-washing facilities as a part of the food service area. (iii) Finishes of all surfaces, except ceilings, shall be the same as those required for dietary kitchens or comparable areas. (8) Administrative and public areas. (A) The following elements shall be provided in the public area. (i) The entrance shall be at grade level, sheltered from the weather and able to accommodate wheelchairs. A drive-under canopy shall be provided for the protection of residents or visitors entering or leaving a vehicle. The latter may be a secondary entrance. (ii) The lobby shall include: (I) storage space for wheelchairs (if more than one is kept available); (II) a reception and/or information area (may be obviously adjacent to lobby) ; (III) waiting space(s); (IV) public toilet facilities for individuals with disabilities (may be adjacent to lobby); (V) public access telephone(s), at least one, shall be installed to meet standards under the Americans with Disabilities Act; and (VI) drinking fountain(s). These may be provided in a common public area and at least one shall be installed to meet standards under the Americans with Disabilities Act. (iii) A lobby may also be use-designed to satisfy a portion of the minimum area required for resident living room space. (B) The following shall be provided in the administrative area: (i) general or individual offices(s) for business transactions, medical and financial records, administrative and professional staff, and for private interviews relating to social service, credit, and admissions; (ii) a multipurpose room for conferences, meetings, and health education purposes including facilities for showing visual aids; and (iii) storage and work area for office equipment and supplies shall be provided and accessible to the staff using such items. (C) Toilet facilities for the disabled shall be available in the building. (9) Physical therapy facilities. (A) Physical therapy facilities shall be provided if required by the treatment program and may include the following: (i) treatment area(s) with space and equipment for thermotherapy, diathermy, ultrasonics, and hydrotherapy; provision for cubicle curtains around each individual treatment area; hand-washing facility(ies) (one lavatory or sink may serve more than one cubicle); and facilities for the collection of soiled linen and other material that may be used in the therapy; (ii) an exercise area; (iii) storage for clean linen, supplies, and equipment used in therapy; (iv) residents' dressing areas, showers, lockers, and toilet rooms if the therapy is such that these would be needed at the area; (v) service sink located near therapy area; and (vi) wheelchair and stretcher storage. (B) The facilities stated in subparagraph (A)(iii) -(vi) of this paragraph may be planned and arranged for shared use by occupational therapy residents and staff if the treatment program reflects this sharing concept. (10) Occupational therapy. Occupational therapy shall be provided if required by the treatment program. The following may be included: (A) an activities area which shall include sink or lavatory and facilities for collection of waste products prior to disposal; and (B) storage for supplies and equipment used in the therapy. (11) Personal grooming area (barber/beauty shop). A separate room with appropriate equipment shall be provided for hair care and grooming needs of residents in facilities with over 60 beds. (12) Laundry/linen services. (A) On-site processing shall be as follows. (i) Due to the high incidence of fires in laundries, it is highly recommended that the laundry be in a separate building 20 feet or more from the main building. If the laundry is located within the main building it shall be separated by minimum one-hour fire construction to structure above, and sprinklered, and shall be located in a remote area away from resident sleeping areas. Access doors shall be from the exterior or interior nonresident use area such as a service corridor (not required exit) which is separated from the resident area. (ii) If linen is to be processed on the site, the following shall be provided: (I) a soiled linen receiving, holding, and sorting room with a rinse sink. This area shall have a floor drain and forced exhaust to the exterior which shall operate at all times there is soiled linen being held in the area; (II) a laundry processing room with equipment which can process seven days needs within a regularly scheduled work week. Hand-washing facilities shall be provided. The washer area shall have a floor drain; (III) storage for laundry supplies; (IV) a clean linen inspection and mending room or area and a folding area; (V) a clean linen storage, issuing, or holding room or area; (VI) a janitors' closet containing a floor receptor or service sink and storage space for housekeeping equipment and supplies; and (VII) sanitizing (washing) facilities and a storage area for carts. (iii) Soiled and clean operations shall be planned to maintain sanitary flow of functions as well as air flow. If carts containing soiled linens from resident rooms are not taken directly to the laundry area, intermediate holding rooms shall be provided and located convenient to resident bedroom areas. (iv) Laundry areas shall have adequate air supply and ventilation for staff comfort without having to rely on opening a door that is part of the fire wall separation. (v) Provisions shall be made to exhaust heat from dryers and to separate dryer make-up air from the habitable work areas of the laundry. (B) For off-site linen processing, the following shall be provided on the premises: (i) a soiled linen holding room (provided with adequate forced exhaust ducted to the exterior); (ii) clean linen receiving, holding, inspection, sorting or folding, and storage room(s); and (iii) sanitizing facilities and storage area for carts. (C) Resident use laundry, if provided, shall be limited to not more than one residential type washer and dryer per laundry room. This room shall be classified as a hazardous area as in accordance with the Life Safety Code. (13) General storage. (A) A general storage room(s) shall be provided as needed to accommodate the facility's needs. It is recommended that such area provide at least two square feet per resident bed. This area would be for such items as extra beds, mattresses, appliances, and other furnishing and supplies. (B) Storage space with provisions for locking and security control should be provided for residents' personal effects which are not kept in his or her room. (14) Janitors' closet. In addition to the janitors' closet called for in certain departments, a sufficient number of janitors' closets shall be provided throughout the facility to maintain a clean and sanitary environment. These shall contain a floor receptor or service sink and storage space for housekeeping equipment and supplies. (15) Maintenance/engineering service and equipment areas. Space and facilities for adequate preventive maintenance and repair service must be provided. The following spaces are needed (it is suggested that these be part of a separate laundry building or area). (A) A storage area for building and equipment maintenance supplies, tools, and parts shall be provided. (B) A space for storage of yard maintenance equipment and supplies, including flammable liquids bulk storage, shall be provided separate from the resident occupied facility. (C) A maintenance/repair workshop of at least 120 square feet and equipment to support usual functions is recommended. (D) A suitable office or desk space for the maintenance person(s) is recommended (this may be located within the previously stated repair shop area) with space for catalogs, files, and records. (16) Oxygen. The storage and use of oxygen and equipment shall meet applicable NFPA standards for oxygen, including NFPA 56F. Contact: Phillip A. Holder, 7800 Shoal Creek Boulevard, Austin, Texas 78757, (512) 458-0100. sec.145.65. Exit Provisions. Exit provisions, including doors, corridors, stairways, and other exitways, locks, and other applicable items shall conform to the requirements of the Life Safety Code concerning means of egress and of this section in order to assure that residents can be rapidly and easily evacuated from the building at all times, or from one part of the building to a safe area of refuge in another part of the building. (1) Bedroom space arrangement and doors and corridors shall be designed for evacuation of bedfast residents by means of rolling the bed to a safe place in the building or to the outside. (2) Public assembly, common living rooms, dining rooms, etc., with a capacity of 50 or more persons or greater than 1,000 square feet shall have two means of exit remote from each other. Outswinging doors with panic hardware shall be provided for these exits. (3) Exit doors and ways of egress shall be maintained clear and free for use at all times. Furnishings, equipment, carts, etc., shall not be left to block egress at any time. (4) Steps in interior ways of egress are prohibited. If changes of elevation are necessary within ways of egress, approved ramps (maximum slope of 1:12) shall be used. (5) Any remodeling, construction, additions, etc., of occupied buildings which involve exitways and exit doors shall be accomplished without compromising the exits or creating a dead end situation at any time. Acceptable alternate temporary exits may be approved, or resident(s) in the area involved may have to be relocated until construction blocking the exit is completed. Other basic safety features such as fire alarms, sprinkler systems, and emergency power shall also be maintained operational. (6) Doors in means of egress shall be as follows. (A) Locking hardware or devices which are capable of preventing or inhibiting immediate egress shall not be used in any room or area that can be occupied. (B) A latch or other fastening device on an exit door shall be provided with a knob, handle, panic bar, or similar releasing device. The method of operation shall be obvious in the dark, without use of a key, and operable by a well known one-action operation that will easily operate with normal pressure applied to the door or to the device toward the exterior. Locking hardware which prevents unauthorized entry from the outside (only) is permissible. Permanently mounted hold-open devices to expedite emergency egress and prevent accidental lock-out shall be provided for exterior exit doors as well as self closing devices. (C) No screen or storm door shall swing against the direction of exit travel where main doors are required to swing out. (D) To aid in control of wandering residents, buzzers or other sounding devices may be used to announce the unauthorized use of an exit door. Other methods include approved emergency exit door locks or fencing (with gate) outside of exit doors which enclose a space large enough to allow the space to be an exterior area of egress and refuge away from the building. (E) Inactive leaves of double doors may have easily accessible and easily operable bolts if the active leaf is 44 inches wide. Center mullions are prohibited. (F) Resident baths or toilets having privacy locks will require that keys or devices for opening the doors are kept readily available to the staff. (G) Folding or sliding doors shall not be used in exit corridors or exitways. Sliding glass doors may be used as secondary doors from residents' bedrooms to grade or to a balcony, or as secondary doors in certain other areas where the primary designated exit door requirements are met. Doors to bathroom and other resident-use areas shall be the side-hinged swinging type. Corridor doors to rooms shall swing into the room or be recessed so as not to extend into the corridor when open: doors ordinarily kept closed, however, may be excepted. Corridor door frames shall be steel in accordance with the Life Safety Code. (7) Horizontal exits, if provided, shall be according to the Life Safety Code. (8) Areas outside of exterior exit doors (exit discharge) shall be as follows. (A) Provision shall be made to accommodate and facilitate continuation of emergency egress away from a building for a reasonable distance beyond the outside exit door, especially for movement of non-ambulatory residents in wheelchairs and beds. Any condition which may retard or halt free movement and progress outside the exit doors will not be allowed. Ramps shall be used outside the exit doors in lieu of steps whenever possible. (B) The landing outside of each exit door shall be essentially the same elevation as the interior floor and level for a distance equal to the door width plus at least four feet. Generally, the difference in floor elevation at an exterior door shall not be over 1/2 inch with the outside slope not to exceed 1/4 inch per foot sloping away from the door for drainage on the exterior. In locations north of the +20 F Isothermal Line as defined in the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) Handbook of Fundamentals, the landing outside of all exit doors shall be protected from ice build-up which would prohibit the door from opening and be a slip hazard. (C) Emergency egress lighting immediately outside of exit doors is required as a part of the building emergency lighting system. Photocell devices may be used to turn lights off during daylight hours. (9) The requirements of emergency lighting system shall be in accordance with sec.145.71 of this title (relating to Electrical Requirements). (10) Requirements for interior finishes of egress (flame spread of floor, walls, and ceiling finishes) shall be in accordance with the Life Safety Code. The interior finishes of other areas shall be in accordance with sec.145.63(e) of this title (relating to General Considerations). sec.145.70. Mechanical Requirements. The design of the mechanical systems shall be done by or under the direction of a registered professional (mechanical) engineer approved by the Texas State Board of Registration for Professional Engineers to operate in Texas, and the parts of the plans and specifications covering mechanical design shall bear the legible seal of the engineer. Building services pertaining to utilities; heating, ventilating, and air-conditioning systems; vertical conveyors; and chutes shall be in accordance with the Life Safety Code. Required plumbing fixtures shall be in accordance with the Life Safety Code and sec.145.64 of this title (relating to Architectural Space Planning and Utilization) in specific use areas. (1) Plumbing. (A) All plumbing systems shall be designed and installed in accordance with the requirements of the plumbing code of the municipality. In the absence of a municipal code, a nationally recognized plumbing code shall be used, such as the Standard Plumbing Code of the Southern Building Code Congress International, Inc. Any discrepancy between an applicable code and these standards shall be called to the attention of the department for resolution. (B) Supply systems shall assure an adequacy of hot and cold water. An average rule of thumb design for hot water for resident usage (at ll0 degrees Fahrenheit) is to provide 6 1/2 gallons per hour per resident in addition to kitchen and laundry use. (C) Water supply shall be from a department approved system or from a system regulated by an entity responsible for water quality in that jurisdiction as approved by the department. (D) The sewage system shall connect to a, department approved system or to a system regulated by an entity responsible for water quality in that jurisdiction as approved by the department. (E) The minimum ratio of fixtures to residents shall be as required in sec.145.64(3) of this title. (F) For design calculation purposes, resident-use hot water shall not exceed 110 degrees Fahrenheit at the fixture. (For purposes of conforming to licensure requirements, an operating system providing water from 100 degrees Fahrenheit to 115 degrees Fahrenheit will be acceptable.) Hot water for laundry and kitchen use shall be normally 140 degrees Fahrenheit except that dish sanitizing, if done by hot water, shall be 180 degrees Fahrenheit. (G) Water closets raised to provide a seat height 17 inches to 19 inches from the floor is required for persons with disabilities. (H) Showers for wheelchair residents shall not have curbs. Tub and shower bottoms shall have slip resistant surface. Shower and tub enclosures, other than curtains, shall be of tempered glass, plastic, and other safe materials. (I) Drinking fountains shall not extend into exit corridors. (J) Fixture controls easily operable by residents shall be provided (such as lever type). (K) Plumbing fixtures for residents shall be vitreous china or porcelain finished cast iron or steel unless otherwise approved by the department. Bathing units constructed of class B fire rated fiberglass are acceptable for use. (L) Hand-washing sinks for staff use are required in many areas throughout the facility in accordance with sec.145.64 of this title (relating to Architectural Space Planning and Utilization). Lavatories are required to be provided adjacent to water closets in each area. (M) The soiled utility room shall be provided with a flushing device such as a water closet with bedpan lugs, a spray hose with a siphon breaker or similar device, such as a high neck faucet with lever controls and a deep sink that is large enough to submerse a bedpan. A sterilizer for sanitizing may be used in place of a deep sink. (N) Siphon breakers or back-flow preventers are required for any hose or pipe connection at a plumbing fixture that could be submerged causing back-flow cross-contamination. All potable water supply lines shall have back-flow prevention devices in accordance with water distribution regulations of the department. (O) Clean-outs for waste piping lines shall be provided and located so that there is the least physical and sanitary hazard to residents. Where possible, clean-outs shall open to the exterior or areas which would not spread contamination during clean-out procedures. (2) Heating, ventilating, and air-conditioning systems. (A) Heating, ventilating, and air-conditioning systems shall be designed and installed in accordance with the Heating, Ventilating, and Air-Conditioning Guide of the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE), except as may be modified herein. (B) Heating, ventilating, and air-conditioning systems shall meet the requirements of the Life Safety Code and NFPA 9OA. The plans shall have a statement verifying that the systems are designed to conform to NFPA 90A. Requirements for conditions related to smoke compartmentation shall be in accordance with sec.145.66 of this title (relating to Smoke Compartmentation (Subdivision of Building Spaces)). (C) Systems using liquefied petroleum gas fuel shall meet the requirements of the Railroad Commission of Texas and NFPA 54. (D) The heating system shall be designed, installed, and functioning to be able to maintain a temperature of at least 75 degrees Fahrenheit for all areas occupied by residents. For all other occupied areas, the indoor design temperature shall be at least 72 degrees Fahrenheit. The cooling system shall be designed, installed, and functioning to be able to maintain a temperature of not more than 78 degrees Fahrenheit. Occupied areas generating high heat, such as kitchens, shall be provided with a sufficient cool air supply to maintain a temperature not exceeding 85 degrees Fahrenheit at the five-foot level (with doors kept closed as required by the Life Safety Code for hazardous areas). Supply air volume must be approximately equal to the air volume exhausted to the exterior for such areas. (E) Air systems shall provide for mixing at least 10% outside air for the supply distribution. Blowers for central heating and cooling systems shall be designed so that they may run continuously. (F) Floor furnaces, unvented space heaters, and portable heating units are not to be used. Heating devices or appliances must not be a burn hazard (to touch) to residents. (G) A combustion fresh air inlet shall be provided to all gas or fossil fuel operated equipment in steel ducts or passages from outside the building in accordance with NFPA 54. Such rooms shall also be vented to the exterior to exhaust heated ambient air in the room. Combustion air will require one vent within 12 inches of the floor and one vent within 12 inches of the ceiling. (H) The location and design of air diffusers, registers, return air grilles, etc., shall be such that residents are not in harmful or excessive drafts in their normal usage of the room. (I) In areas requiring control of sanitation, the air flow shall be from the clean area to the dirty area. Air supply to food preparation areas shall not be from air which has circulated resident bedrooms, baths, etc. (J) Air from unsanitary areas such as janitors closets, soiled linen soiled utility, and soiled area of laundry rooms, etc., shall not be returned and recirculated to other areas. (K) Intakes for fresh outside air shall be located sufficiently distant from exhaust outlets or other areas or conditions which may contaminate or otherwise pollute the incoming fresh air. Fresh air inlets shall be appropriately screened to prevent entry of debris, rodents, animals, etc. Provision shall be made for access to such screens for periodic inspection and cleaning to eliminate clogging or air stoppage (see paragraph (3)(C)(i) of this section). (L) Systems shall be designed as much as possible to avoid having ducts passing through fire walls or smoke barrier walls. All openings or duct penetrations in such walls shall be provided with approved automatic dampers. Smoke dampers at smoke partitions shall close automatically upon activation of the fire alarm system to prevent the flow of air or smoke in either direction. (M) Clear view panels shall be provided in the duct to check for proper operation of each smoke damper on a routine basis. View panels may also serve as access for maintenance or a separate access panel shall be provided. Access panels shall be provided (in ceiling or side wall) and location of dampers shall be identified on wall or ceiling of occupied area below. (N) Fusible links are not approved for smoke dampers. (O) Central air supply systems and/or systems serving means of egress shall automatically and immediately shut down upon activation of the fire alarm system. (An exception shall be approved engineered smoke removal systems.) (P) Ducts shall be of metal or other approved noncombustible material. Cooling ducts shall be insulated against condensation drip. (3) Ventilating and exhaust. (A) General ventilating systems shall be in accordance with paragraph (2) of this subsection. (B) Provisions for natural ventilation using windows or louvers shall be incorporated into the building design where possible and practical. Such windows or louvers shall have insect screens. (C) Details for the ventilation system are set out in this subparagraph. All air-supply and air-exhaust systems shall be mechanically-operated. The ventilation rates shown in the table in clause (xi) of this subparagraph shall be considered as minimum acceptable rates and shall not be construed as precluding the use of higher ventilation rates. (i) Outdoor air intakes shall be located as far as practical (but normally not less than 10 feet) from exhaust outlets or ventilating systems, combustion equipment stacks, medical vacuum systems, plumbing vent stacks, or from areas which may collect vehicular exhaust and other noxious fumes. (ii) The ventilation systems shall be designed and balanced to provide the pressure relationship as shown in the table in clause (xi) of this subparagraph. A final engineered system air balance report will be required for the completed system to be furnished and certified by the installer. (iii) The bottoms of ventilation openings shall be not less than three inches above the floor of any room. (iv) Doors protecting corridors or ways of egress shall not have air transfer grilles or louvers. Corridors shall not be used to supply air to or exhaust air from any room except that air from corridors may be used as make-up air to ventilate small toilet rooms, janitor's closets, and small electrical or telephone closets opening directly on corridors, provided that such ventilation can be accomplished by door undercuts not exceeding 3/4 inches. (v) All exhausts shall be continuously ducted to the exterior. Exhausting air into attics or other spaces is not permitted. Duct material shall be steel. (vi) All central ventilation or air-conditioning systems shall be equipped with filters of sufficient efficiency to minimize dust and lint accumulations throughout the system and building including supply and return plenums and ductwork. Filters with efficiency rating of 80% or greater (based on ASHRAE) are recommended. Filters for individual room units shall be as recommended by the equipment manufacturer. Filters shall be easily accessible for routine changing or cleaning. (vii) Static pressures of systems shall be within limits recommended by ASHRAE and the equipment manufacturer (upstream and downstream). (viii) In geographic locations or interior room areas where extreme humidity levels are likely to occur for extended periods of time, apparatus for controlling humidity levels (preferably between 40-60%) are recommended to be installed as a part of central systems and with automatic humidistat controls. (ix) Exhaust hoods, ducts, automatic extinguishers, etc., for kitchen cooking equipment shall be in accordance with NFPA 96. (x) Forced air exhaust shall be provided in laundries, kitchens, and dishwashing areas to remove excess heat and moisture and to maintain air flow in the direction of clean to soiled areas. (xi) Ventilation requirements for nursing areas shall be according to the following table: [graphic] (xii) With relationship to adjacent areas, a positive air pressure shall be provided for clean utility rooms, clean linen rooms, and medication rooms. Conditioned supply air shall be introduced into these rooms. (4) Sprinkler systems. (A) Sprinkler systems shall be in accordance with NFPA 13 and this subchapter. (B) The design and installation of sprinkler systems must meet any applicable state laws pertaining to such systems and one of the following criteria. (i) The sprinkler system plans and installation must be approved by the Texas Department of Insurance. (ii) The sprinkler system must be designed by a qualified registered professional engineer approved by the Texas State Board of Registration for Professional Engineers to operate in Texas. The engineer shall supervise the installation and provide written approval of the completed installation. (iii) The sprinkler system must be planned and installed in accordance with NFPA 13 by firms with certificates of registration issued by the office of the state fire marshal that have at least one full-time licensed responsible managing employee (RME). The RME's license number and signature must be included on the prepared sprinkler drawings. (C) The approved sprinkler plans shall be submitted to the department along with final construction plans for general appraisal, review, and record. (D) Particular attention should be paid to adequate, safe, and reasonable freeze protection for all piping. The design of such freeze protection should minimize the need for dependence on staff action or intervention to provide protection. sec.145.71. Electrical Requirements. (a) The design of the electrical systems shall be done by or under the direction of a registered professional electrical engineer approved by the Texas State Board of Registration for Professional Engineers to operate in Texas, and the parts of the plans and specifications covering electrical design shall bear the legible seal of the engineer. Requirements pertaining to utilities, heating, ventilating, and air conditioning systems, vertical conveyors, and chutes shall be in accordance with the Life Safety Code, Chapter 7, Building service and fire protection equipment. (b) Requirements for fire protection systems shall be in accordance with sec.145.67 of this title (relating to Fire Protection Systems). (c) Electrical systems shall meet the requirements of the NFPA 70. (d) Specific requirements for lighting and outlets at resident bedrooms shall be in accordance with sec.145.64 of this title (relating to Architectural Space Planning and Utilization). (1) Emergency electrical service. (A) To provide electricity during an interruption of the normal electric supply, an emergency source of electricity shall be provided and connected to certain circuits for lighting and power. (B) The source of this emergency electrical service shall be as follows: (i) an emergency generating set when the normal service is supplied by one substation transmission line; (ii) an emergency generating set or a central station transmission line when the normal electric supply is generated on the premises; or (iii) from two separate substations or separate and independent utility companies. (C) Emergency electrical connection service shall be provided to the distribution systems as required by the Life Safety Code and NFPA 99. (i) Emergency systems shall include the following: (I) illumination for means of egress, nurse stations, medication rooms, dining and living rooms, group bathing rooms (those not directly connected to resident bedrooms), and areas immediately outside of exit door; (II) exit signs and exit directional signs as required by the Life Safety Code; (III) alarm systems including fire alarms activated by manual stations, water flow alarm devices of sprinkler systems, fire and smoke detecting systems, and alarms required for nonflammable medical gas systems if installed. Where hospital type functions are included in the nursing home facility, applicable standards shall apply; (IV) task illumination and selected receptacles at the generator set location; (V) selected duplex receptacles including such areas as resident corridors, nurse stations, and medication rooms including biologicals refrigerator; (VI) nurse calling systems; (VII) elevator cab lighting, control, and communication systems; (VIII) equipment necessary for maintaining telephone service; and (IX) paging or speaker systems if intended for communication during emergency. Radio transceivers where installed for emergency use shall be capable of operating for at least one hour upon total failure of both normal and emergency power. (ii) Critical systems (delayed automatic or manual connections to critical systems) shall include the following. (I) Heating equipment shall provide heating for general resident rooms. This will not be required if: (-a-) the outside design temperature is higher than 20 degrees Fahrenheit (-6 degrees Celsius); (-b-) the outside design temperature is lower than 20 degrees Fahrenheit (-6 degrees Celsius) and where selected room(s) is provided for the needs of all confined residents, then only such room(s) need to be heated; or (-c-) the facility is served by a dual source of normal power. (II) In instances where interruptions of power would result in elevators stopping between floors, throw over facilities shall be provided to allow the temporary operation of any elevator for the release of passengers. (D) The emergency lighting shall be automatically in operation within 10 seconds after the interruption of normal electric power supply. Emergency service to receptacles and equipment may be delayed automatic or manually connected. Receptacles connected to emergency power shall have red face plates. Stored fuel capacity shall be sufficient for not less than four-hour operation of required generator. (E) The design and installation of emergency motor generators must be in accordance with NFPA 37 and NFPA 99. (i) Generators shall be a minimum of three feet from the combustible exterior building finish and a minimum of five feet from a building opening if located on the exterior of the building. (ii) Generators located on the exterior of the building shall be provided with a noncombustible protective cover or be protected as per manufacturer's recommendations. (iii) Motor generators fueled by public utility natural gas shall have the capability to be switched to an alternate fuel source in accordance with NFPA 70. (F) The normal wiring circuit(s) for the emergency system shall be kept entirely independent of all other wiring and shall not enter the same raceways, boxes, or cabinets in accordance with NFPA 70. (2) General lighting requirements are as follows. (A) All spaces occupied by people, machinery, equipment, approaches to buildings, and parking lots shall have lighting. (B) The quality, intensity, and type of lighting shall be adequate and appropriate to the space and all functions within the space. (C) Minimum lighting levels can be found in the Illuminating Engineering Society (IES) Lighting Handbook, latest edition, and in the provisions concerning physical plant and environment in sec.145.41(n) of this title (relating to Standards for Nursing Facilities). (D) Nursing unit corridors shall have general illumination with provisions for reduction of light levels at night. (E) Exposed incandescent light bulbs (or other high heat generating lamps) in closets or other such spaces shall be provided with basket wire guards or other suitable shield to prevent contact of combustible materials with the hot bulb and to help prevent breakage. (F) Exposed incandescent or fluorescent bulbs will not be permitted in food service or other areas where glass fragments from breakage may get into food, medications, linens, or utensils. All fluorescent bulbs will be protected with a shield or catcher to prevent bulb drop-out. (3) Receptacles (convenience outlets). (A) Receptacles at bedrooms shall be in accordance with sec.145.64(1)(G). (B) Duplex receptacles for general use shall be installed in corridors spaced not more than 50 feet apart and within 25 feet of ends of corridors. (C) Receptacles shall be provided for essential needs such as medication refrigerators and life support systems or equipment. At least one outlet in each resident corridor shall be provided with emergency electrical service. All receptacles on emergency circuits shall be clearly, distinctly, and permanently identified, such as using a red face plate and/or a small label that says "Emergency." (D) Receptacles in the remainder of the building shall be sufficient to serve the present and future needs of the residents and equipment. (E) Location of receptacles (horizontally and vertically) should be carefully planned and coordinated with the expected designed use of furnishings and equipment to maximize their accessibility and to minimize conditions such as beds or chests being jammed against plugs used in the outlets. (F) Exterior receptacles shall be approved waterproof type. (G) Ground fault interruption protection shall be provided at appropriate locations such as at whirlpools and other wet areas in accordance with the National Electrical Code. (4) Nurse call systems. (A) A nurse call system consists of power units, annunciator control units, corridor dome stations, emergency call stations, bedside call stations, and activating devices. The units shall be compatible and laboratory listed for the system and use intended. (B) Each resident bedroom shall be served by at least one calling station and each bed shall be provided with a call switch. Two call switches serving adjacent beds may be served by one calling station. Each call entered into the system shall activate a corridor dome light above the bedroom/bathroom/toilet corridor door, a visual signal at the nurses station which indicates the room from which the call was placed, and a continuous or intermittent continuous audible signal of sufficient amplitude to be clearly heard by nursing staff. The amplitude or pitch of the audible signal shall not be such that it is irritating to residents or visitors. The system shall be designed such that calls entered into the system may be cancelled only at the calling station. Intercom type systems shall be installed only after approved by the Texas Department of Health. (C) Nurse calling systems which provide two-way voice communication shall be equipped with an indicating light at each calling station which lights and remains lighted as long as the voice circuit is operating. (D) A nurse call emergency switch(es) shall be provided for resident use at each resident's toilet, bath, and shower. Such switches shall be usable by residents using the fixtures and by a collapsed resident lying on the floor. sec.145.73. Elevators. All buildings having residents' facilities (such as bedrooms, dining rooms, or recreation areas) or resident services (such as diagnostic or therapy) located on other than the main entrance floor shall have at least one electric or electrohydraulic elevator and shall comply with standards adopted under the American National Standards Institute (ANSI) Code, sec.A17.1. (1) Number of elevators. (A) At least one hospital-type elevator shall be installed where one to 60 resident beds are located on any floor other than the main entrance floor. (B) At least two (one of which shall be hospital-type) elevators shall be installed where 61 to 200 resident beds are located on floors other than the main entrance floor, or where the major inpatient services are located on a floor other than those containing resident beds. Elevator service may be reduced for those floors which provide only partial inpatient services. (C) At least three (one of which shall be hospital-type) elevators shall be installed where 201 to 350 resident beds are located on floors other than the main entrance floor or where the major inpatient services are located on a floor other than those containing resident beds. Elevator service may be reduced for those floors which provide only partial inpatient services. (D) For facilities with more than 350 resident beds, the number of elevators shall be determined from a study of the facility plan and the estimated vertical transportation requirements. (2) Cars and platforms. Cars of hospital-type elevators shall have inside dimensions that will accommodate a resident bed and attendants and shall be at least five feet wide by seven feet six inches deep. The car door shall have a clear opening of not less than three feet eight inches. (3) Leveling. Elevators shall be equipped with an automatic leveling device of the two-way automatic maintaining type with an accuracy of 1/2 inch. (4) Operation. Elevators, except freight elevators, shall be equipped with a two-way special service switch to permit cars to bypass all landing button calls and be dispatched directly to any floor. (5) Accessibility provisions. Elevator controls, alarm buttons, and telephones, etc., shall be accessible to and usable by individuals with disabilities as required under the Americans with Disabilities Act. (6) Protection from fire. Elevator call buttons, controls, and door safety stops shall be of a type that will not be activated by heat or smoke. Door openings shall meet the requirements of the Life Safety Code for protection of vertical openings. (7) Field inspection and tests. Inspections and tests shall be made and the owner shall be furnished written certification that the installation meets the requirements set forth in this section and all applicable safety regulations and codes. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321482 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 834-6770 Construction Standards for Facilities Serving Persons with Mental Retardation or Related Conditions 25 TAC sec.sec.145.92-145.105 The new sections are adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with the authority to adopt rules concerning nursing facilities and related institutions; and sec.12.001 which provides the Board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. sec.145.92. Introduction, Application, and General Requirements. (a) Scope. The requirements of this section are applicable to both new and existing facilities unless stated otherwise. (b) Purpose. (1) The concept of requirements for fire safety with regard to the residents is based on evacuation capability as published by National Fire Protection Association (NFPA) in NFPA 101 Life Safety Code. These standards are written with the premise that the residents will be capable of self-evacuation without continuous staff assistance. Residents that are not normally capable of self- evacuation nor capable of negotiating stairs unassisted shall not be housed above or below the floor of exit discharge unless the facility meets the construction requirements of NFPA 101, Chapter 12 titled "New Health Care Occupancies" for large facilities, or the "impractical" requirements for small facilities as found in NFPA 101, Chapter 21 titled "Residential Board and Care Occupancies." Examples of residents who may not be capable of self-evacuation are as follows: (A) a person with a physical disability of a nature that he/she is not capable of maneuvering in a wheelchair, walker, etc., unaided; (B) a person with a mental disability who will not take or cannot understand instructions from a staff member; or (C) a person that is taking medication before bedtime which will make it difficult for a staff member to arouse the person quickly. (2) The method of determining the evacuation capability of residents under NFPA 101, Chapter 21, is by rating each resident and each staff member to determine an "E" score. If the "E" score is 1.5 or less, the evacuation capability of the facility is prompt; greater than 1.5 to five is slow; greater than five is impractical. The worksheets to be completed are located in NFPA 101, 1985 Edition, Appendix F. (3) The "E" score will determine which NFPA 101 features are to be installed and maintained in the facility. These features include construction, fire alarm systems, smoke detector systems, interior finish, sprinkler systems, separation of bedrooms, and egress from the building. (c) Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Addition-The addition of floor space. (2) Large facilities-Facilities with 17 or more resident beds. (3) Department-Texas Department of Health. (4) Life safety features-Fire safety components required by NFPA 101 such as building construction, fire alarm systems, smoke detection systems, interior finishes, sizes and thicknesses of doors, exits, emergency electrical systems, sprinkler systems, etc. (5) Remodeling-The altering of the structure, e.g., removal or addition of walls or partitions, floors, ceiling, roof. (6) Renovation-The restoration to a former better state by cleaning, repairing, or rebuilding, e.g., routine maintenance, repairs, equipment replacement, painting. (7) Small facilities-Facilities with 16 or fewer resident beds. (d) Construction. (1) New construction is any construction work which began on or after October 3, 1988. The provisions of NFPA 101, Chapter 12 are applicable for large facilities, and Chapter 21 for small facilities. (2) An existing facility is one which was operating with a license as a facility for persons with mental retardation and related conditions before October 3, 1988, and has not subsequently become unlicensed. The provisions of NFPA 101, Chapter 13 titled "Existing Health Care Occupancies," are applicable for large facilities, and Chapter 21 for small facilities. (3) No construction work, including the addition or removal of walls, doors, and windows, shall be started prior to having plans approved by the architectural section of the department. Alterations or new installations of building services equipment, such as mechanical and electrical systems, generators, fire alarm, and detection systems, etc., shall be accomplished in conformance with the requirements for new construction as required by NFPA 101. (4) Site approval, as required by the local health officer, building department, and/or fire marshal having jurisdiction, shall be obtained. Any conditions considered to be a fire, safety, or health hazard will be grounds for disapproval of the site by the department unless applied in an arbitrary or discriminating manner. (5) Facilities that renovate need not submit plans for approval, but shall provide documentation for the flame spread rate of any new materials applied as an interior finish. (6) Life safety features and equipment that have been installed in existing buildings and are now in excess of that required by NFPA 101 must continue to be maintained or shall be removed at the direction of the department. (7) When an existing licensed facility plans building additions or remodeling, which includes construction of additional resident beds, then the ratio of bathing units shall be reevaluated to meet minimum standards and the square footage of dining and living areas shall be reevaluated by the department. Conversion of existing living, dining, or activity areas to resident bedrooms shall not reduce these functions to an area less than required by minimum standards. (8) Buildings shall be of recognized permanent type construction. They shall be structurally sound with regard to actual or expected dead, live, and wind loads according to applicable building codes. (9) Each building shall be classified as to the building construction type for fire resistance rating purposes in accordance with NFPA 220 Standard on Types of Building Construction, and NFPA 101. (e) Applicable codes and standards. Facilities shall meet the requirements of NFPA 101, 1985 edition, and any other codes and standards of NFPA listed in this section, except as may be otherwise approved or required by the department. (1) If the municipality has a building code and a plumbing code, then those codes shall govern in those areas of construction. Where local codes or ordinances are applicable, the most restrictive parts concerning the same subject item shall apply unless otherwise determined by the authority having jurisdiction for local codes and the department. (2) In the absence of such governing municipal codes, nationally recognized codes shall be used, such as the Standard Building Code and the Standard Plumbing Code, both of the Southern Building Code Congress International, Inc. Such nationally recognized codes, when used, shall all be publications of the same group or organization to assure the intended continuity. (3) Heating, ventilating, and air-conditioning systems shall be designed and installed in accordance with NFPA 90A Standard for the Installation of Air Conditioning and Ventilating Systems, and NFPA 90B 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. (4) Electrical and illumination system shall be designed and installed in accordance with NFPA 70 National Electrical Code, and the Lighting Handbook of the Illuminating Engineering Society of North America (IES) except as may be modified in this subchapter. (5) The facility shall meet the provisions and requirements concerning accessibility for individuals with disabilities in the following laws: the Americans with Disabilities Act 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 shall be submitted to the Texas Department of Licensing and Regulation (Attention: Elimination of Architectural Barriers Program) for accessibility approval under Article 9102. (f) General requirements. (1) The facility shall provide and maintain furnishings and decorations that meet the needs of the residents. (2) The building, grounds, and equipment shall be maintained in good repair, operational, sanitary, and free of hazards. (3) There shall be at least one telephone (other than a pay phone) in the facility, accessible to residents for use in making calls to summon help in case of emergency. (4) The facility must have: (A) floors that are free of irregularities and are substantially level; (B) floors that have a resilient, nonabrasive, and slip-resistant surface; (C) nonabrasive carpeting, if the area used by residents is carpeted and serves residents who lie on the floor or ambulate with parts of their bodies, other than feet, touching the floor; and (D) exposed floor surfaces and floor coverings that promote mobility in areas used by residents and promote maintenance of sanitary conditions. (5) Walls and ceilings shall be cleanable and in good repair. (6) Walls and floors shall be kept free of cracks. The joint between the walls and floors is to be maintained so as to be free of spaces which might harbor insects, rodents, or vermin. (7) An adequate supply of hot water shall be provided. The hot water system for resident use shall be capable of being regulated to not exceed 110 degrees Fahrenheit at the fixtures. (8) Draperies, curtains (including cubicle curtains), and other similar furnishings and decorations shall be flame resistant in accordance with NFPA 701 Standard Methods of Fire Tests for Flame Resistant Textiles and Films. Documentation shall be kept on file in the facility. (9) Wastebaskets shall be of noncombustible material. (10) An initial pressure test of facility gas lines from the meter shall be provided. Additional pressure tests will be required when the facility has major renovations or additions where the gas service is interrupted. All gas heating systems shall be checked for proper operation and safety prior to the heating season. Any unsatisfactory conditions shall be corrected promptly. (11) The IES recommendations shall be followed to achieve proper illumination characteristics and lighting levels throughout the facility. Minimum illumination shall be 10 foot candles in resident rooms during the day and 20- foot candles in corridors, staff stations, dining rooms, lobbies, toilets, bathing facilities, laundries, stairways, and elevators during the day. Illumination requirements for these areas apply to lighting throughout the space and should be measured at approximately 30 inches above the floor anywhere in the room. Minimum illumination for medication preparation or storage areas, kitchens, and staff station desks shall be 50-foot candles during the day. Illumination requirements for these areas apply to the task performed and should be measured on the tasks. (12) In addition to the required illumination (normal and emergency), the facility shall keep on hand and readily available to night staff, no less than one working flashlight. (13) Combustible attic areas larger than 3, 000 square feet must be divided into compartments not exceeding 3,000 square feet or the attic area must be sprinkled. The separating barrier shall be at least one layer of 1/2-inch gypsum board on one side of support members. sec.145.93. Site and Grounds. (a) General (All Facilities). (1) Site grades shall provide for positive surface water drainage so that there will be no ponding or standing water at or near the building such as would present a hazard to health or provide a breeding site or harborage for disease vectors. (2) Outdoor activity, recreational, and sitting spaces shall be provided and be accessible to all residents. (3) Each facility shall have parking space to satisfy the needs of residents, employees, staff, and visitors. (4) Protection shall be provided for resident safety on facility grounds by the use of appropriate methods, such as fences, hedges, retaining walls, railings, or other landscaping. Such protection shall not inhibit the free emergency egress to a safe distance away from the building. (5) All outside areas, grounds, adjacent buildings, etc., on the site shall be maintained in good condition and kept free of rubbish, garbage, untended growth, and other conditions which may constitute a fire or health hazard. (b) Additional site conditions (large facilities only). (1) Auxiliary buildings located on the site within 20 feet of the main licensed structure and which contain hazardous operations or contents, such as laundries or storage buildings, shall meet the same code requirements for safety as the main licensed structure, or the building shall be moved to be 20 feet or farther away from the main building. (2) Other buildings on the site shall meet the appropriate occupancy section or separation requirements of National Fire Protection Association (NFPA) 101 Life Safety Code. (3) A new building (or addition) shall be set back at least 10 feet from the property lines except as otherwise approved by the department. (4) Exit doors from the building shall not open directly onto a drive for vehicular traffic, but shall be set back at least six feet from the edge of such drive (measured from the end of building wall in the case of a recessed door) to prevent accidents due to lack of visual warning. These doors are to have automatic or self-closures. (5) Walks shall be provided from all exits and shall be of non-slip surfaces free of hazards. Walks shall be at least 48 inches wide except as otherwise approved. Ramps should be used in lieu of steps where grade change is 21 inches or less, and where possible, for persons with physical disabilities and/or mobility impairment, and to facilitate bed or wheelchair removal in an emergency. (6) Open or enclosed courts with resident rooms or living areas opening upon them shall not be less than 20 feet in the smallest dimension unless otherwise approved by the department. (7) There shall be at least one approved readily accessible fire hydrant located within 300 feet of the building. The hydrant shall be on a minimum six- inch service line, or else there shall be an approved equivalent (such as a storage tank). The hydrant, its location, and service line, or equivalent shall be approved by the local fire department and the department. (8) The building shall have suitable fire lanes for access as required by local fire authorities and the department. sec.145.97. Portable Fire Extinguishers. (a) General. Portable fire extinguishers shall be provided and maintained to comply with the provisions of the National Fire Protection Association (NFPA) 10 Standard for Portable Fire Extinguishers. 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 manufacturer. (b) Types of extinguishers. (1) Portable type ABC or B:C chemical extinguishers shall not be located in resident corridors. Extinguishers in resident corridors shall be 2 1/2 gallon pressurized water or other type approved by the department and spaced so that travel distance is not more than 75 feet. (2) At least one portable UL or Factory Mutual (FM)-approved five-pound class B:C dry chemical fire extinguisher, rechargeable type, is required in each laundry, kitchen, and walk-in mechanical room. (3) ortable B:C chemical extinguishers provided in hazardous areas shall be located as close as possible to the exit door opening and nearest the latch (knob) side. sec.145.99. Architectural Space Planning. (a) Large facilities. (1) Ancillary resident space. The minimum total ancillary resident-use space shall be not less than 35 square feet per bed. Ancillary space includes areas for living, dining, recreation, therapy, training, and other such program areas. It does not include bedrooms, passageways, offices, kitchens, laundries, etc. (more than 35 square feet per bed is usually needed in facilities with less than 60 beds). Facilities which have, or anticipate having, large proportions (approximately 65% or greater) of nonambulatory and/or bedfast residents shall provide at least 50 square feet of ancillary space per bed unless otherwise approved by the department. Areas providing less space than called for in this paragraph cannot be approved except on an individual basis where clearly justified. (2) Resident bedrooms. (A) Bedrooms shall be arranged and equipped for adequate personal care and for comfort and privacy. Bedrooms shall have full height walls that extend from floor to ceiling with doors. (Partial partitions or furnishings are not a substitute.) An exception is that existing facilities constructed prior to October 3, 1988, that have partial partitions in lieu of full-height walls, need not install the full-height walls unless there are major renovations or conversions. (B) Bedrooms shall provide at least 80 square feet for a single occupancy (one bed) and 60 square feet per bed for multiple occupancy. (Note: room configuration and usability is taken into consideration and there may be instances where the minimum square footage will not be acceptable.) The minimum room dimension shall be at least eight feet for a single room and at least 10 feet for a multiple-bed room, unless otherwise approved by the department. An exception is that multi-occupancy bedrooms for persons in wheelchairs shall have 70 square feet per wheelchair occupant bed. (C) No more than four beds shall be in any one bedroom. An exception is that the department may grant a variance from the limit of four residents per room only if a physician who is a member of the interdisciplinary team and who is a qualified mental retardation professional: (i) certifies that each resident to be placed in a bedroom housing more than four residents is so severely medically impaired as to require direct and continuous monitoring during sleeping hours; and (ii) documents the reasons why housing in a room of only four or fewer residents would not be medically feasible. (D) In the bedrooms and for each resident there shall be a bed with a comfortable mattress and appropriate bedding, functional furniture appropriate to residents' needs, and closet space providing security and privacy for clothing and personal belongings. Closet space shall provide at least 24 inches of lineal hanging space per bed (in certain cases, such as for infants, exceptions may be made). Married couples may share a bed. (E) Each bedroom shall have at least one outside wall with an operable window giving outside exposure. Unless approved otherwise by the department, the window sill of the required window shall be no higher than 36 inches from the floor and shall be at or above outside grade level. Other window requirements shall be as called for in the National Fire Protection Association (NFPA) 101. The window area for bedrooms shall be equal to at least 10% of the total room floor area. (F) If a bedroom is below grade level, it must have a window that is usable as a second means of escape by the resident(s) occupying the room. The window shall be no more than 36 inches (measured to the window sill) above the floor. (G) All resident bedrooms shall open onto an exit corridor, living area, or public area and shall be arranged for convenient resident access to dining, living, and bathing areas. (3) Social-diversional spaces. (A) Living rooms, day rooms, lounges, etc., must be provided on a sliding scale as follows (as part of the minimum required ancillary space): [graphic] (B) Where a required way of exit is through a living area, a pathway equal to the corridor width will normally be deducted from that area. Such exit pathways must be kept clear of obstructions. (C) Each living room and dining room shall have at least one outside window. Normally, resident classrooms and training areas should also have an outside window unless otherwise approved by the department. (4) Dining space. Dining space shall provide at least 15 square feet per resident bed for single-shift feeding. If procedure is approved for feeding in two shifts, at least eight square feet per resident bed shall be provided. (5) Training spaces (academic, behavioral, occupational, physical, and speech therapy, etc.). Classroom type space is anticipated for most training activities. The number and size of such spaces will be evaluated on an individual facility basis and according to program policies and procedures. Generally, training rooms should provide at least 20 square feet per resident trainee within the room except that no training room should be less than 80 square feet. For purposes of calculation, space should be provided for at least one-third of the total population at any one time (i.e., plan space for 33 residents in a 100-bed facility). (6) Kitchens (main/dietary). (A) Kitchens shall be evaluated on the basis of their performance in the sanitary and efficient preparation and serving of meals to residents. Consideration shall be given to planning for the type of meals served, the overall building design, the food service equipment, arrangement, and the work flow involved in the preparation and delivery of food. Plans for construction of new facilities shall contain a detailed kitchen layout prepared by, or under the direction of, a registered or licensed dietitian. (B) Kitchens shall be designed so that room temperature, at peak load, shall not exceed an average temperature of 85 degrees Fahrenheit measured over the room at the five-foot level. The amount of supply air should take into account the large quantities of air exhausted at the range hood and dishwashing area. (C) Kitchens shall be provided with operational equipment as planned and scheduled by the facility's consultants for preparing and serving meals and for refrigerating and freezing of perishable foods, as well as equipment in, and/or adjacent to, the kitchen or dining area for producing ice. (D) Kitchens shall be provided with facilities for washing and sanitizing dishes and cooking utensils. Such facilities will be provided for the number of meals served and the method of serving (permanent or disposable dishware, etc.). As a minimum, the kitchen shall contain a compartmented sink large enough to immerse pots and pans. Separation of soiled and clean dish areas shall be maintained, including air flow. A mechanical dishwasher shall be provided. (i) The dishwasher must be utilized to sanitize dishes and utensils and must meet requirements specified under sec.229.166(a)(4) of this title (relating to Cleaning, Sanitization, and Storage of Equipment and Utensils), or (ii) Dishes and utensils will be manually sanitized in accordance with sec.229.166(a)(3)(E) of this title (relating to Cleaning, Sanitization, and Storage of Equipment and Utensils) prior to placement in the dishwasher. (E) Kitchens shall be provided with a supply of hot and cold water. Hot water for sanitizing purposes shall be 180 degrees Fahrenheit or the manufacturer's suggested temperature for chemical sanitizers, as specified for the system in use. For mechanical dishwashers the temperature measurement is at the manifold. (F) Kitchens shall be provided with at least one hand-washing lavatory or hand-sanitizing device. Hand-washing lavatories shall be provided with hot and cold running water, soap, and individual towels, preferably paper towels; common use towels shall not be used. (G) In new construction, staff restroom facilities with a lavatory shall be accessible to kitchen staff without traversing resident use areas. The restroom door shall not open directly into the kitchen (e.g., provide a vestibule). (H) In new construction, janitorial facilities shall be provided exclusively for the kitchen and shall be located in and entered from the kitchen. (I) Nonabsorbent smooth finishes or surfaces shall be used on kitchen floors, walls, and ceilings. Such surfaces shall be capable of being sanitized to maintain a healthful environment. (J) All operable window openings shall be screened. Doors opening to the outside of the building shall have self-closing devices. (7) Food storage areas (main/kitchen). (A) In new construction, food storage areas shall be planned on the basis of the number and type of resident meals to be served. The size and layout of dry foods storage shall be prepared by or designed under the direction of a licensed or registered dietitian. (B) Food storage areas shall provide for storage of a four-day minimum supply of nonperishable foods at all times. (C) Shelves shall be movable metal or sealed lumber, and walls must be finished with a nonabsorbent finish to provide a cleanable surface. (D) Dry food storage shall have an approved venting system to provide for positive air circulation. (E) The maximum room temperature for food storage shall not exceed 85 degrees Fahrenheit at all times. The measurement shall be taken at the five-foot level. (F) Food storage areas may be located apart from the food preparation area as long as there is space adjacent to the kitchen for necessary daily stores. (8) Food services areas. (A) Where service areas other than the kitchen are used to dispense foods, these shall be designated as food service areas and shall have equipment for maintaining required food temperatures while serving. (B) Separate food service areas shall have hand-washing facilities as a part of the food service area. An employee toilet shall be provided. (C) Finishes of all surfaces except ceilings shall be the same as those required for dietary kitchens. (9) Other spaces. (A) Bathing units (tubs or showers) shall be provided at a minimum ratio of one per 15 beds. Waterclosets and lavatories shall be provided at a minimum ratio of one per eight beds. Bathing and toilet facilities should be of a type appropriate to the resident's varying needs and disabilities, and designed for privacy within the bathroom. (B) Adequate storage space must be provided for equipment, carts, wheelchairs, etc., so as to eliminate the problem of such items being left or stored in corridors, or overcrowding bedroom space. (b) Small facilities. (1) Bedrooms. (A) Bedrooms shall be arranged and equipped for adequate personal care and for comfort and privacy. Bedrooms shall have full height walls that extend from floor to ceiling with doors. (Partial partitions or furnishings are not a substitute.) (B) Bedrooms shall provide at least 80 square feet for a single occupancy (one bed) and 60 square feet per bed for multiple occupancy. (Note: room configuration and usability is taken into consideration and there may be instances where the minimum square footage will not be acceptable.) The minimum room dimension shall be at least eight feet for a single room and at least 10 feet for a multiple-bed room, unless otherwise approved by the department. An exception is that multi-occupancy bedrooms for persons in wheelchairs shall have 70 square feet per wheelchair occupant bed. (C) No more than four beds shall be in any one bedroom. An exception is that the department may grant a variance from the limit of four residents per room only if a physician who is a member of the interdisciplinary team and who is a qualified mental retardation professional: (i) certifies that each resident to be placed in a bedroom housing more than four residents is so severely medically impaired as to require direct and continuous monitoring during sleeping hours; and (ii) documents the reasons why housing in a room of only four or fewer residents would not be medically feasible. (D) In the bedrooms and for each resident there shall be a bed with a comfortable mattress and appropriate bedding, functional furniture appropriate to residents' needs, and closet space providing security for personal clothing and belongings. Closet space shall provide at least 24 inches of lineal hanging space per bed (in certain cases, such as for infants, exceptions may be made). Married couples may share a bed. (E) Unless there is a door in the bedroom leading directly outside to grade level or an outside stair, every bedroom shall have at least one outside window that can be readily opened from the inside and provides a clear opening of at least 5.7 square feet (minimum width of 20 inches; minimum height of 24 inches). The bottom of the opening shall be not more than 44 inches above the floor. Minimum dimensions for operable window section are 20 inches wide by 41.2 inches in height, or 24 inches in height by 34.2 inches wide to provide the minimum 5.7 feet of opening. (F) Bedroom doors shall be 20-minute fire rated or 1 3/4-inch solid bonded core wood. These doors shall have automatic closures and latch in their frames. Exceptions are as follows. (i) Doors need only be smoke resistant and do not need automatic closure if the building has an approved sprinkler system throughout. (ii) Doors need only be smoke resistant with automatic closures if the facility is classified "prompt" level of evacuation difficulty. (G) Each small facility shall have at least two remotely located means of escape that do not involve windows. The arrangement shall be such that there is a primary means of escape from each sleeping room that provides a path of travel to the outside without traversing any corridor or other space exposed to unprotected vertical openings or common living spaces, such as living rooms and kitchens. Exceptions are as follows: (i) A second means of escape or alternate protection is not required: (I) if the bedroom has a door leading directly to the outside of the building, at or to grade level; or (II) if the building is protected with an approved sprinkler system meeting National Fire Protection Association (NFPA) 13 Standard for Installation of Sprinkler Systems or NFPA 13D Standard for Installation of Sprinkler Systems in One- and Two-family Dwellings and Mobile Homes standards. (ii) Separated primary means of escape is not necessary if the building is single story; has 1 3/4-inch solid bonded core doors to bedrooms or smoke resistant doors with closures; 20-minute fire protection for the structure; Class A or B interior finish; bedroom windows of proper size; total smoke detection coverage of habitable spaces, including loft areas that are tied into the manual fire alarm system; and two remote means of escape. (2) Living room space. Living room space shall provide at least 15 square feet per resident (with a minimum of 120 square feet regardless of number of residents). Living space can include one or more rooms or areas provided that the first such area is at least 80 square feet each. (3) Dining space. Dining space must be large enough to accommodate all residents at one sitting, and shall provide at least 15 square feet per resident. Living and dining space may be in one room or area providing a combined total of 30 square feet per resident (15 square feet living plus 15 square feet dining per resident). (4) Bathrooms. Bathrooms shall provide for individual privacy. Water closets and lavatories shall be provided at a minimum ratio of one for each five residents. There shall be at least one tub or shower for each eight residents. At least one bathroom (with water closets, lavatory, and tub or shower) shall be provided on each sleeping floor accessible to the residents of that floor. (5) Kitchen. The facility shall have a kitchen to meet the general food service needs of the residents. It shall include provisions for the storage, refrigeration, preparation, and serving of food; for dish and utensil cleaning; and for refuse storage and removal. A mechanical dishwasher shall be provided. (6) Office. An office or other space shall be available for private individual counseling and for the safekeeping of files and records. (7) Stairs. Buildings of two or more stories require at least two separate approved exit stairs from the upper floors. Usable space under the stairs is not allowed unless fire separated or protected in accordance with NFPA 101 Life Safety Code. Open interior stairways which constitute an "unprotected vertical opening" to a required exit passageway on the upper floor must be provided with a barrier (wall and door) at either the lower or upper level to prevent the rapid rise of fire or smoke originating on the lower level from rendering the upstairs passageway to the second stair impassable. (8) Fire rating. Interior wall and ceiling surfaces shall have, as the finished surface or a substrate or sheathing, a fire resistance of not less than 20 minutes, similar to that provided by 3/8-inch gypsum board. sec.145.101. Electrical, Heating, Ventilating, and Air-conditioning Systems (HVAC)-All Facilities. (a) Cooling and heating shall be provided, as necessary, for resident comfort. Heating systems in resident use areas shall be capable of maintaining a minimum temperature of 68 degrees Fahrenheit, and cooling of 81 degrees Fahrenheit maximum, with humidity in the normal comfort range. (b) The facility shall be well ventilated through the use of windows, mechanical ventilation, or a combination of both. Rooms and areas which do not have outside windows and which are used by residents or personnel shall be provided with functioning mechanical ventilation to change the air on a basis commensurate with the room usage. (c) Air systems shall provide for the induction and mixing of at least 10% outside fresh air into the facility unless otherwise approved by the department (i.e., 100% continuous recirculation of interior air in most areas is not acceptable), or the system shall be designed to meet American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE). (d) Operable outside windows shall be provided with insect screens that prevent insect entry. (e) Rooms such as baths, toilets, soiled linen, trash or garbage rooms, soiled utilities, janitor's closets, and other such areas which produce odors, fumes, excessive moisture, etc., shall be provided with an exhaust system ducted to the exterior, meeting nationally recognized standards for capacity and function. (f) Electrical and mechanical systems shall be safe and in working order. The department may require the facility sponsor or licensee to submit evidence to this effect, consisting of a written report by the local fire marshal, city/county building official having jurisdiction, or a registered professional engineer. (g) Use of electrical appliances, devices, and lamps shall be such as not to overload circuits. (h) Portable heaters and open-flame heating devices are prohibited. All fuel burning devices shall be vented. Working fireplaces are acceptable if of safe design and construction, and if screened or otherwise suitably enclosed. sec.145.105. Safety Operations. (a) Disaster plan. The facility must have a written plan with procedures to be followed in an internal or external disaster and for the care of casualties. (1) The facility must maintain the plan and procedures within the facility in a location known and accessible to all staff. The facility must ensure that the plan and procedures are reviewed when changes in administration, construction, or emergency phone numbers are made. (2) The facility must include in the disaster plan evacuation routes and procedures to be followed in the event of fire, explosion, or other disaster. The plan must also include procedures for the prompt transfer of casualties, medical records, medications, and for the notification of appropriate persons. (3) All employees must be familiar with the disaster plan and must be instructed in the location and use of the facility's alarm systems, fire- fighting equipment, and procedures. (4) The facility must post emergency evacuation routes prominently throughout the facility. An exception is that in small one-story buildings where all exits are obvious, the department may not require the posting of evacuation routes. (5) The fire alarm and sprinkler systems shall be inspected and tested at least once every three months by a licensed agent. Each such quarterly inspection and test shall be of the complete system including smoke dampers, individual sprinkler heads, etc. A standard report form of the inspection shall be completed by the agent and kept on file by the facility. The report shall include the signature of the person making the inspection and the date of the inspection. The facility shall maintain a current contract on file for the services of the inspecting company. An exception is that small facilities are only required to have semiannual inspections in lieu of quarterly inspections. (6) All fires shall be reported to the department within 72 hours. However, any fire causing injury or death shall be reported immediately. A telephone report shall be followed by a written report on a form which is available from the department. (b) Fire/evacuation drills. (1) The facility must have a fire safety plan within the disaster plan. A comprehensive fire drill report form shall be completed for each rehearsal of the fire safety plan. (2) The facility must hold fire evacuation drills at least every quarter for each shift of personnel (12 per year) and under varied times and conditions. (3) Any direct care staff, including relief staff, must participate in the initial fire drill within 10 days of their employment at the facility. An exception is that facilities meeting NFPA 101, Chapter 12 titled "New Health Care Occupancies" or Chapter 13 titled "Existing Care Occupancies," or meeting the impractical evacuation category of Chapter 21 titled "Residential Board and Care," are not required to conduct fire drills within 10 days of employment. (4) The facility must: (A) actually evacuate residents during at least one evacuation drill each year on each shift; (B) make special provisions for the evacuation of the physically handicapped, such as fire chutes and mattress loops with poles; (C) write and file a report and evaluation of each drill and list details, date, time, who participated, and any problems that occurred; and (D) investigate all accidents and take corrective action to prevent similar accidents in the future. (5) Drills for other emergencies, such as severe weather, bomb-threats, etc., shall be covered in the facility's policies and disaster plan with drills held according to the policy. (c) Smoking regulations. Smoking policies shall be formulated and adopted by the facility. The policies shall comply with all applicable codes, regulations, and standards, including local ordinances. It is the responsibility of the facility to inform residents, staff, visitors, and other affected parties of smoking policies through distribution and/or posting. The facility is responsible for enforcement of smoking regulations. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321483 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 834-6770 Construction Standards for Maternity Facilities 25 TAC sec.145.131, sec.145.132 The new sections are adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with the authority to adopt rules concerning nursing facilities and related institutions; and sec.12.001 which provides the Board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. sec.145.131. Introduction and Application. (a) Classification of facilities. (1) A small facility is a building(s) consisting of one or more floors providing sleeping accommodations for 16 or fewer residents exclusive of "live- in" houseparents, family, or staff. (2) A large facility is a building(s) consisting of one or more floors providing sleeping accommodations for 17 or more residents exclusive of "live- in" staff. (b) Applicability of requirements for construction and life safety. (1) All buildings or structures, new or existing, used as a licensed maternity facility shall be in accordance with these standards. Any exceptions are specifically mentioned. (2) For existing buildings and structures which are converted to maternity occupancy, no residents will be admitted until all standards are met and approval for occupancy is granted by the licensing officer of the department. (3) A licensed nursing facility or licensed hospital, meeting Chapter 12 or 13 of National Fire Protection Association 101 (NFPA 101), may be considered as a maternity occupancy without additional fire safety features as may be specified herein. (4) Buildings and structures shall conform to the 1985 edition, of NFPA 101, as published by the National Fire Protection Association, Inc., Batterymarch Park, Quincy, Massachusetts 02269, as follows. (A) Type A small facilities shall conform to Chapter 21. (B) Type A large facilities shall conform to Chapter 21. (C) Type B small ("Impractical") shall conform to Chapter 21 for facilities that provide postpartum care. (D) Type B large ("Impractical") shall conform to Chapters 21 and 12 (limited care, as defined by the NFPA 101, requirements may be used) for facilities that provide postpartum care. (E) Other chapters, sections, subsections, or paragraphs of the NFPA 101 such as Chapters 1-7 and Chapter 31, shall apply as referenced or intended for their relation to Chapters 21, 12, and 18. (F) Buildings which contain living units with independent cooking and bathroom facilities shall conform with NFPA 101, Chapters 21 and 18, New Apartment Buildings, Option #2, "Buildings provided with a complete automatic fire detection and notification system," as a minimum. (5) New construction shall be subject to local codes. (The description of the occupancy may vary with local codes.) In the absence of local codes or their enforcement for new construction, the department will require conformance to the fundamentals of the following codes: (A) the Uniform Building Code, 1988 edition by the International Conference of Building Officials, 5360 South Workman Mill Road, Whittier, California 90601, 'R' Occupancy, Divisions 1 and 3 for Type A facilities, and 'I' Occupancy for Large Type B facilities; (B) the Uniform Plumbing Code, 1988 edition, as published by the International Association of Plumbing and Mechanical Officials, 5032 Alhambra Avenue, Los Angeles, California 90032; (C) the National Electrical Code as specified under NFPA 101; (D) illumination systems shall be designed and installed in accordance with the Lighting Handbook of the Illuminatory Engineering Society (IES) of North America, except as may be modified herein. (6) An existing building (facility with residents at time of initial inspection) either occupied as a maternity facility at the time of initial inspection by the department or converted to occupancy as a maternity facility shall meet all local requirements pertaining to that building for that occupancy. The department shall require the facility sponsor or licensee to submit evidence that local requirements are satisfied. When local laws, codes or ordinances are more stringent than these standards for maternity, the more stringent requirements shall govern. (7) Buildings shall be structurally sound with regard to actual or expected dead, live, and wind loads according to applicable building codes. (8) The facility shall meet the provisions and requirements concerning accessibility for individuals with disabilities in the following laws: the Americans with Disabilities Act 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 shall be submitted to the Texas Department of Licensing and Regulation (Attn: Elimination of Architectural Barriers Program) for accessibility approval under Article 9102. sec.145.132. General Requirements. (a) General. The concept of the National Fire Protection Association (NFPA) 101 requirements for fire safety with regard to the residents, is based on evacuation capability. These standards are written with the premise that the residents will be capable of self-evacuation without continuous staff assistance. Residents that are not normally capable of self-evacuation nor are capable of negotiating stair unassisted, shall not be housed above or below the floor of exit discharge unless the facility meets the construction requirements of NFPA 101, Chapter 12, Health Care Occupancies for Large Facilities and the "impractical" requirements for small facilities as found in NFPA 101, Chapter 21. Examples of residents who may not be capable of self-evacuation are as follows: (1) a person with a physical disability of a nature that he or she is not capable of maneuvering in a wheelchair, walker, etc., unaided; (2) a person who will not take or cannot understand instructions from a staff member; or (3) a person who is taking medication which will make it difficult for a staff member to arouse the person quickly. (b) Evacuation procedures. Residents who are housed in buildings that are licensed as small or large Type A facilities, shall be able to demonstrate to the authority having jurisdiction (AHJ) that they can travel from their living unit to a centralized space, such as lobby, living, or dining room on the level of discharge within a 13 minute period without continuous staff assistance. Elevators shall not be used as an evacuation route. (c) Operational features. (1) All fires causing damage to the facility and/or equipment shall be reported to the department within 72 hours. Any fire causing injury or death to a resident shall be reported immediately. A telephone report shall be followed by a written report on a form which will be supplied by the department. (2) Fire drills shall be conducted at least four times a year on each shift. The drills may be announced in advance to the residents. The drills shall involve the participation of the staff in accordance with the emergency plan. Residents shall be informed of evacuation procedures and locations of exits. All fire drills shall be documented indicating brief description of drill, any problems encountered, date, time, and staff who participated. (3) Smoking regulations shall be established, and smoking areas shall be designated for residents and staff. Ashtrays of noncombustible material and safe design shall be provided in smoking areas. (4) The facility shall post an emergency evacuation floor plan. An exception is that small, one-story facilities are not required to post such plans. (5) The administration shall have in effect and available to all supervisory personnel written copies of a plan for the protection of all persons in the event of fire and for their remaining in place, for their evacuation to areas of refuge, and from the building when necessary. The plan shall include special staff actions including fire protection procedures needed to ensure the safety of any resident and shall be amended or revised when needed. All employees shall be periodically instructed and kept informed with respect to their duties and responsibilities under the plan. A copy of the plan shall be readily available at all times within the facility. (d) Construction. (1) There shall be separation from other occupancies. A common wall between a maternity facility and another occupancy shall be not less than a two-hour fire- rated partition. (Definition of such a partition is in accordance with National Fire Protection Association Standards.) A licensed nursing facility or licensed hospital is not considered another occupancy for this purpose. An exception is where an unlicensed occupancy occurs in the same building or structure and is so intermingled that separate safeguards are impracticable. The means of egress, construction, protection and other safeguards shall comply with the NFPA 101 requirements of the licensed occupancy. (2) Interior wall and ceiling surfaces shall have as the finished surface or as substrate or sheathing a fire resistance of not less than that provided by 3/8" gypsum board (20 minute fire rating), unless approved otherwise by the department. A sprinkler system will not substitute for the minimum construction requirements. An exception is Type B large facilities shall meet the construction requirements of NFPA 101, Chapter 12, sec.12-1.6. (3) Flame spread rate requirements shall be as specified in NFPA 101. Flame spread is the rate of fire travel along the surface of a material. (This is different than 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). See NFPA 101, sec.6-5, Interior Finishes. (4) Doors between resident rooms and corridors or public spaces shall be not less than 1-3/4" thick solid core wood construction or 20-minute fire-rated, self-closing or automatic-closing, and latch in their frames. Exceptions are as follows. (A) Small Type A facilities can have smoke resisting doors with automatic closures provided the interior finish is Class 'B' or better and there are two remote exit routes. (B) Small Type A facilities that have 20-minute fire-rated doors (or 1-3/4" solid core wood), Class 'B' or better interior finish, and two remote exit routes are not required to be self-closing or automatic-closing. (C) In Small and Large Type A facilities protected throughout by an approved automatic sprinkler system, doors to resident bedrooms are not required to be self-closing or automatic-closing, except a three story or larger building which does not meet construction requirements of NFPA 101, Chapter 12. (5) Upper floors shall have at least two separate approved stairs. Each stair shall be arranged and located so that it is not necessary to go through another room (such as bedroom or bath) to reach the stair. All stairs shall be provided with handrails and with normal lighting. Refer to NFPA 101 for Class 'A' stair details. An exception is that for existing 16 beds or less: At least one main stair shall be Class 'B'. Such stairs may be constructed of wood. (6) All hazardous areas, as defined in the NFPA 101, Chapter 21 or 12, shall be one-hour fire-separated or provided with sprinkler protection or both if considered severe. Gasoline, volatile materials, oil base paint, or similar products shall not be stored in the building housing residents. (7) Exit signs, with emergency power, shall be provided in all large facilities and installed in accordance with NFPA 101, Section 5-10. (8) Emergency lighting shall be provided in all buildings with 25 or more bedrooms; in apartment buildings with 12 or more living units or which are three or more stories in height; and in all large facilities that are designed for Type B. The system shall be installed in accordance with NFPA 101, Section 5-9. (e) Fire alarm and sprinkler systems. (1) Fire alarm and smoke detection system. An underwriter's laboratory (U.L.) listed manual fire alarm initiating system, with an interconnected automatic smoke detection and alarm initiation system, shall be provided in accordance with the NFPA 101, Section 7-6. The operation of any alarm initiating device will sound an audible/visual alarm(s) at the site. (A) Smoke detectors shall be installed in resident bedrooms, corridors, hallways, living rooms, dining rooms, offices, and public or common areas. Service areas, such as kitchens, laundries and attached garages used for car parking may have heat detectors in lieu of smoke detectors. Exceptions are as follows. (i) Large facilities with apartment units may use listed smoke detectors with an alarm device and separate heat detector contacts in the living area. The smoke detectors must provide an audible signal within the apartment, and annunciate at the main staff station or location. The heat detector contacts shall be connected into the fire alarm system and provide a general alarm when activated. (ii) A facility constructed to meet NFPA 101, Chapter 12, need only meet Section 12-3.4.5.1. for smoke detector locations. (B) The fire alarm control panel shall be visible to staff at or near the staff area that is attended 24 hours a day. (C) The primary power source for the complete fire alarm system must be commercial electric and permanently wired for power on a dedicated circuit in accordance with the National Electrical Code. (D) Emergency power source shall be from approved storage batteries or on-site engine-driven generator set. (E) The facility shall have a written contract with a fire alarm company or person licensed by the State of Texas to maintain the alarm system semiannually. (F) In large facilities, the fire alarm panel shall indicate as a separate zone, each floor and/or smoke compartment. Each zone shall have an alarm and trouble indication. (G) In large Type B facilities the fire alarm shall automatically notify the fire department in accordance with NFPA 101, Section 7-6.4. (2) Sprinkler systems. When installed or required, sprinkler systems shall meet the following criteria. (A) Facilities housing 16 or fewer residents may have a system that meets NFPA 13D requirements. (B) Large Type B facilities must have a complete NFPA 13 system. (C) Large Type A facilities may have an NFPA 13R system (up to and including three stories). (f) Site and location. (1) The facility shall be serviced by a paid or volunteer fire fighting unit as approved by the department. Water supply for fire fighting purposes shall be as required and approved by the fire fighting unit. (2) Any site or building conditions that are a fire hazard, health hazard, or physical hazard shall have corrections made as determined by the department. (3) The facility shall provide or arrange for nearby parking spaces for private vehicles of residents and visitors. A minimum of one space shall be provided for each four beds or fraction thereof, or per local code, whichever is more stringent. (4) Ramps, walks, and steps shall be of slip-resistive texture and uniform, without irregularities. Ramps shall not exceed 1:12 slope, and shall meet disability standards for width. Guardrails, fences, or handrails shall be provided where grades make an abrupt change in level. (5) All outside areas, grounds, adjacent buildings, etc., on the site shall be maintained in good condition and kept free of rubbish, garbage, untended growth, etc., that may constitute a fire or health hazard. Site grades shall provide for water drainage away from the structure to prevent ponding or standing water at or near the building. (g) Sanitation and housekeeping. (1) Waste water and sewage shall be discharged into a state-approved municipal sewerage system; any exception shall be as approved by the department. (2) The water supply shall be of safe, sanitary quality, suitable for use, and adequate in quantity and pressure, and shall be obtained from a water supply system, the location, construction, and operation of which are approved by the department. (3) Waste, trash, and garbage shall be disposed of from the premises at regular intervals in accordance with state and local practices. Excessive accumulations are not permitted. The facility shall comply with sec.sec.1.131-1. 137 of this title (relating to Definition, Treatment, and Disposal of Special Waste from Health Care Related Facilities). (4) Operable windows shall be insect screened. (5) An ongoing pest control program shall be provided by facility staff or by contract with a licensed pest control company. The least toxic and least flammable effective chemicals shall be used. (6) All bathrooms, toilet rooms, and other odor-producing rooms or areas for soiled and unsanitary operations shall be ventilated with operable windows or powered exhaust to the exterior for odor control. Exception: Existing small facilities may vent into an attic provided that the attic is vented. (7) In kitchens and in laundries, there shall be procedures utilized by facility staff to avoid cross-contamination between clean and soiled utensils and linens. (8) The facility shall be kept free of accumulations of dirt, rubbish, dust, and hazards. Floors shall be maintained in good condition and cleaned regularly; walls and ceilings shall be structurally maintained, repaired, and repainted or cleaned as needed. Storage areas and cellars shall be kept in an organized manner. No storage will be permitted in the attic spaces. (9) The facility shall be capable of being ventilated through the use of windows, mechanical ventilation, or a combination of both. Interior areas designated for smoking within the building shall have mechanical ventilation directed to the exterior to remove smoke at the rate of 10 air changes per hour. (10) In addition to janitor closet(s) called for in specific departments of large facilities, other janitor closet(s) shall be provided throughout the facility to maintain a clean and sanitary environment. Each janitor closet shall have a service sink and forced air ventilation ducted to the outside. (11) A public/staff toilet, i.e. commode and lavatory, complying with accessibility standards is required for every large facility up to and including 60 beds. Facilities over 60 beds shall have separate public and staff toilets in addition to the staff toilet(s) required for the dietary staff. (12) If the facility provides linens to the residents, the quantity of available linen shall meet the sanitary and cleanliness needs of the residents. Clean linens shall be stored in a clean area. (h) General safety features. (1) Electrical and mechanical systems shall be safe and in working order. The department may require the facility sponsor or licensee to submit evidence to this effect, consisting of a report from the fire marshal, city/county building official having jurisdiction, licensed electrician, or a registered professional engineer. (2) All draperies and other window coverings in public or common areas, and in bedrooms and/or living units in which smoking is permitted shall be flame resistant. (3) All new floor carpet installed in public or common spaces after the initial inspection by the department shall be Class I or II based on the "Critical Radiant Flux" ratings. Proper documentation must be provided. (4) Open flame heating devices are prohibited. All fuel burning heating devices shall be vented. Working fireplaces are acceptable if of safe design and construction and if screened or otherwise enclosed. (5) There shall be at least one telephone in the facility available to both staff and residents for use in case of an emergency. Emergency telephone numbers, including at least fire, police, ambulance, emergency medical services, and poison control center, shall be posted conspicuously at or near the telephone. (6) An initial pressure test of facility gas lines from the meter shall be provided. Additional pressure tests will be required when the facility has major renovations or additions where the gas service is interrupted. All gas heating systems shall be checked prior to the heating season for proper operation and safety by persons who are licensed or approved by the State of Texas to inspect such equipment. A record of this service shall be maintained by the facility. Any unsatisfactory conditions shall be corrected promptly. (7) Exterior and interior stairs shall have handrails that are firmly secured to prevent falls. (8) Cooling and heating shall be provided for occupant comfort. Conditioning systems shall be capable of maintaining the comfort ranges of 68 degrees Fahrenheit to 82 degrees Fahrenheit in resident-use areas. (9) The Illumination Engineering Society of North America recommendations shall be followed to achieve proper illumination characteristics and lighting levels throughout the facility. Minimum illumination shall be 10-foot candles in resident rooms during the day and 20 foot candles in corridors, staff stations, dining rooms, lobbies, toilets, bathing facilities, laundries, stairways and elevators during the day. Illumination requirements for these areas apply to lighting throughout the space and should be measured at approximately 30 inches above the floor anywhere in the room. Minimum illumination for medication preparation or storage areas, kitchens, and staff station desks shall be 50-foot candles during the day. Illumination requirements for these areas apply to the task performed and should be measured on the tasks. (10) All buildings three floors or higher and in facilities that provide services, treatment, or social activities on floors above or below the level of discharge and which house mobility impaired residents shall have a passenger elevator. The lowest level of discharge will be the first floor for determining floor level. (11) The building shall be kept in good repair; electrical, heating, and cooling systems shall be maintained in a safe manner. Use of electrical appliances, devices, and lamps shall be such as not to overload circuits or cause excessive lengths of extension cords. (12) Floor, ceiling, and wall finish materials shall be complete and in place to provide a sanitary and structurally safe environment. (i) Portable fire extinguishers. (1) At least one portable UL or factory mutual (FM)-approved five-pound Class B:C dry chemical fire extinguisher, rechargeable type, is required in each laundry, kitchen and walk-in mechanical room. ABC type extinguishers shall not be used in kitchens. An exception is that in small facilities, ABC type extinguishers will be acceptable for these spaces. (2) Portable UL or FM-approved 2-1/2 gallon stored-pressure water-type fire extinguishers (Class A) must be provided in areas serving resident bedrooms. One such unit shall be located within 75 feet of any resident bedroom door. Acidic base (ABC) and dry chemical types are not acceptable. (3) Extinguishers must be readily accessible. Units must be installed on hangers or brackets, mounted in special cabinets, or set on appropriate shelves. Operating instructions shall face outward. Mounting heights shall not exceed five feet above the floor for extinguishers weighing 40 pounds or more. (4) Regular monthly inspections or "quick checks" must be made by facility representatives to assure that extinguishers are in the proper location, condition, and working order. Annual maintenance or "thorough checks" must be accomplished in accordance with National Fire Protection Association Standard Number 10A (NFPA 10-Standard for Portable Fire Extinguishers) by competent personnel licensed or certified to perform servicing by the State Fire Marshal. Unserviceable extinguishers must be replaced. (5) With reference to paragraph (3) of this subsection, alternative locations and arrangements for fire extinguishers may be as approved by the department for small facilities, facilities consisting of separated small building units, or unusual building arrangements. (6) Metal wastebaskets of substantial gauge or any UL or FM 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 UL or FM approved material, having a close fitting cover. Disposable plastic liners may be used in these containers for sanitation. (j) Accessibility provisions. (1) The physical plant of all large facilities and all other facilities housing residents with physical disabilities and/or mobility impairments must comply with applicable federal, state and local requirements for persons with disabilities. (2) A minimum of 5.0% of the resident living units of large facilities shall meet the accessibility provisions. (k) Resident accommodations. (1) Resident bedrooms. (A) Bedroom usable floor space for Type A facilities shall not be less than 80 square feet for a one-bed room and not less than 60 square feet per bed for a multiple bed room. A bedroom shall be not less than eight feet in the smallest dimension, unless specifically approved otherwise by the department. Bedrooms for persons with physical disabilities and/or mobility impairment shall meet accessibility standards for access around the bed or beds, i.e., minimum of three feet clear width for access aisles. (B) Bedroom usable square footage for Type B facilities shall be not less than 100 square feet per bed for a single-bed room and not less than 80 square feet per bed for a multiple-bed room. Bedrooms for persons with physical disabilities and/or mobility impairment shall meet accessibility standards for access around the bed or beds, i.e., minimum of three feet clear width for access aisles. (C) In facilities that have living units consisting of separate living/dining spaces and bedrooms, 10% of the required bedroom square footage may be included as part of the living/dining space. (D) No more than four beds shall be in a bedroom, and not more than 50% of the beds shall be in bedrooms of three or more. (E) Each bedroom shall have at least one operable window with outside exposure. The window sill shall be no higher than 44 inches from the floor and shall be at or above grade level. The window will be operable from the inside, without the use of tools or special devices, and provide an operable section with a clear opening of not less than 5.7 square feet (minimum width of 20inches by 41.2 inches high and minimum height of 24 inches by 34.2 inches wide). Windows required for evacuation will not be blocked by bars, shrubs, or any obstacle that would impede evacuation. Exceptions are as follows: (i) In large Type B facilities, the window sill height from the floor shall be no more than 36". (ii) In large Type B facilities, the bedroom window size shall not be less than 8.0% of the bedroom floor area. (iii) In small existing facilities, if the window is not required for the secondary means of escape, the window size and sill height requirements will not apply provided the primary means of escape for each sleeping room is not exposed to the common living spaces, such as the living room, dining room, and kitchen and the bedroom has an operable window for view and ventilation. (F) In the event the resident does not provide his or her own furnishings, the facility must provide for each resident a bed with mattress, chair, table or dresser, and enclosed closet space for clothing and personal belongings. Drawer space shall be provided. Furnishings provided by the facility must be maintained in good repair. (G) All resident rooms shall open upon an exit, corridor, living area, or public area and shall be arranged for convenient resident access to dining and recreation areas. (H) A staff or attendant area shall be provided on each floor or in each separate building. The area shall consist of a desk or writing surface and telephone. An exception is that Type A facilities, two-story or less in height, with separate buildings grouped together, and connected by covered walks, need not have staff or attendant areas on each floor or in each building, provided that the areas are not more than 200 feet walking distance from the furthest resident living unit. The areas must have a communication system and fire alarm annunciation indicating the units served. (I) Facilities which consist of two or more floors or separate buildings shall have a communication system from each resident living unit to a central staff location. This communication system may be a direct telephone, nurse call, or intercom. (2) Resident toilet and bathing facilities. (A) All bedrooms shall be served by separate private, connecting, or general toilet rooms for each sex (if facility houses both sexes). General toilet room or bathing room shall be accessible from a corridor or public space. A lavatory shall be readily accessible to each water closet. At least one water closet, lavatory, and bathing unit shall be provided on each sleeping floor accessible to residents of that floor. (B) One water closet and one lavatory for each six occupants or fraction thereof is required. One tub or shower for each ten occupants or fraction thereof is required. (C) Privacy partitions and/or curtains shall be provided at water closets and bathing units in rooms for multi-resident use. (D) Tubs and showers shall have non-slip bottoms or floor surfaces, either built-in or applied to the surface. (E) Resident-use hot water for lavatories and bathing units will be maintained between 100 degrees Fahrenheit and 125 degrees Fahrenheit. (F) Towels, soap, and toilet tissue shall be available at all times for individual resident use. (3) Resident living areas. (A) Social-diversional spaces such as living rooms, day rooms, lounges, sun rooms, etc., shall be provided and have appropriate furniture. A minimum of 120 square feet shall be provided in at least one space regardless of number of residents. This space must have exterior windows providing a view of the outside. (B) The total space requirement for social-diversional areas shall be provided on a sliding scale as follows: [graphic] (C) Where a required way of exit (or a service way) is through such living or dining area, a pathway equal to the corridor width will normally be deducted for calculation purposes and discounted from that area. Such exit pathways must be kept clear of obstructions. (4) Resident dining areas. (A) A dining area shall be provided and have appropriate furnishings. A minimum of 120 square feet shall be provided in at least one space, regardless of number of residents. This space must have exterior windows providing a view of the outside. (B) Access to a dining area from the resident living units or bedrooms shall be covered. (C) The total space requirement for a dining area shall be provided on a sliding scale as follows: [graphic] (D) The total living-dining area(s) can be a single or interconnecting space with a minimum of 240 square feet of area. (5) Storage areas. The facility shall provide sufficient separate storage spaces or areas for the following: (A) administration for records and office supplies; (B) locked areas for medications and medical supplies. Poisons shall be stored in a locked area and separate from all medications and preparation; (C) equipment supplied by the facility for resident needs such as wheelchairs, walkers, beds, mattresses, etc.; (D) cleaning supplies (janitorial needs); (E) food storage; (F) clean linens and towels if furnished by the facility; (G) lawn and maintenance equipment, if needed; (H) janitor(s) closet with deep sink and hot and cold water (large facilities only); and (I) soiled linen storage or holding room(s), if the facility furnishes linen. (6) Office. There shall be at least one office space to carry on the business needs of the facility. Larger facilities may require more than one such room. (7) Kitchen. (A) The facility shall have a kitchen or dietary area to meet the general food service needs of the residents. It shall include provisions for the storage, refrigeration, preparation, and serving of food; for dish and utensil cleaning; and for refuse storage and removal. Exception: Food may be prepared off-site or in a separate building provided that the food is served at the proper temperature and transported in a sanitary manner. (B) Kitchens (main/dietary) for large facilities shall be as follows. (i) Kitchens will be evaluated on the basis of their performance in the sanitary and efficient preparation and serving of meals to residents and comply with the requirements of sec.sec.229.161-229.173 of this title (relating to Food Service Sanitation). (I) Consideration shall be given to planning for the type of meals served, the overall building design, the food service equipment, arrangement, and the work flow involved in the preparation and delivery of food. (II) Plans shall include a detailed kitchen layout designed by a registered or licensed dietitian or architect having knowledge in the design of food service operations. (ii) Kitchens shall be designed so that room temperature, at peak load (summertime), shall not exceed a temperature of 85 degrees Fahrenheit measured over the room at the five foot level. The amount of supply air shall take into account the large quantities of air that may be exhausted at the range hood and dishwashing area. (iii) Facilities for washing and sanitizing dishes and cooking utensils shall be provided. The kitchen shall contain a multi-compartment pot sink large enough to immerse pots and pans, and a mechanical dishwasher for washing and sanitizing dishes. Separation of soiled and clean dish areas shall be maintained, including air flow. (iv) A vegetable preparation sink shall be provided. It shall be separate from the pot sinks. (v) A supply of hot and cold water shall be provided. Hot water for sanitizing purposes shall be 180 degrees Fahrenheit or the manufacturer's suggested temperature for chemical sanitizers. (vi) The kitchen shall be provided with a hand-washing lavatory in the food preparation area with hot and cold water, soap, towel dispenser, and waste receptacle. The dish room area shall have ready access to a handwashing lavatory. (vii) Staff rest room facilities with lavatory shall be directly accessible to kitchen staff without traversing resident use areas. The rest room shall not open directly into the kitchen (i.e., provide a vestibule). Exception: Staff rest rooms in existing facilities must be provided, but may be located outside of the kitchen area. (viii) Janitorial facilities shall be provided exclusively for the kitchen and shall be located in the kitchen area. Exception: Janitorial closets in existing facilities may be located outside of the kitchen area provided sanitary procedures are used to reduce the possibility of cross-contamination. (ix) Non-absorbent smooth finishes or surfaces shall be used on kitchen floors, walls and ceilings. Such surfaces shall be capable of being routinely cleaned and sanitized to maintain a healthful environment. Counter and cabinet surfaces, inside and outside, shall also have smooth, cleanable, non-porous finishes. (x) Doors between kitchen and dining or serving areas shall have 1/4-inch fixed wire glass view panel mounted in a steel frame. (xi) A garbage can or cart washing area with drain and hot water shall be provided either on the interior or exterior of the facility. (xii) Floor drains shall be provided in the kitchen and dishwashing areas. Exception: Floor drains are not required in existing facilities provided the floors are kept clean. (xiii) A commercial range shall be provided and equipped with a commercial range hood and exhaust designed and installed in accordance with NFPA 96. (xiv) Grease traps shall be provided as required. (C) Food storage areas for large facilities shall be as follows. (i) Food storage areas shall provide for storage of a four-day minimum supply of non-perishable foods at all times. (ii) Shelves shall be adjustable wire type. Exception: Existing facilities with wood shelves may continue to use the shelves provided they are kept sealed and clean. (iii) Walls and floors must have a non-absorbent finish to provide a cleanable surface. (iv) No foods shall be stored on the floor. Dollies, racks, pallets, or wheeled containers may be used to elevate foods not stored on shelving. (v) Dry foods storage shall have an effective venting system to provide for positive air circulation. (vi) The maximum room temperature for food storage shall not exceed 85 degrees Fahrenheit at any time. The measurement shall be taken at the highest food storage level, but not less than five feet from the floor. (vii) Food storage areas may be located apart from the food preparation area as long as there is space adjacent to the kitchen for necessary daily usage. (D) Auxiliary serving kitchens (not contiguous to food preparation/serving area) shall be as follows. (i) Where service areas other than the kitchen are used to dispense foods, these shall be designated as food service areas and shall have equipment for maintaining required food temperatures while serving. (ii) Separate food service areas shall have handwashing facilities as part of the food service area. (iii) Finishes of all surfaces, except ceilings, shall be the same as those required for dietary kitchens or comparable areas. (8) Laundry/linen services. (A) A large maternity facility which co-mingles and processes laundry on-site in a central location shall comply with the following. (i) The laundry shall be separated and provided with sprinkler protection if located in the main building. (Separation shall consist of a one-hour fire rated partition carried to the underside of the floor or roof deck above.) Access doors shall be from the exterior or interior non-resident use areas, such as a small vestibule or service corridor. (ii) The laundry shall be provided with the following physical features: (I) a soiled linen receiving, holding, and sorting room with a floor drain and forced exhaust to the exterior which shall operate at all times there is soiled linen being held in this area. (This may be combined with the washer section.); (II) a general laundry work area which is separated by partitioning two areas- a washer section and a dryer section; (III) a storage area for laundry supplies; (IV) a folding area; (V) adequate air supply and ventilation for staff comfort without having to rely on opening a door that is part of the fire wall separation; and (VI) provisions to exhaust heat from dryers and to separate dryer make-up air from the habitable work areas of the laundry. (B) If linen is processed off the site, the following shall be provided on the premises: (i) a soiled linen holding room (provided with adequate forced exhaust ducted to the exterior); and (ii) a clean linen receiving, holding, inspection, sorting or folding, and storage room(s). (C) Resident-use laundry, if provided, shall utilize residential type washers and dryers. If more than three washers and three dryers are located in one space, the area shall be one-hour fire separated or provided with sprinkler protection. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321484 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 834-6770 General Requirements for All Facilities 25 TAC sec.145.141, sec.145.142 The new sections are adopted under the Health and Safety Code, Chapter 242, which provides the Texas Board of Health (board) with the authority to adopt rules concerning nursing facilities and related institutions; and sec.12. 001 which provides the Board with authority to adopt rules to implement every duty imposed on the board, the department, and the commissioner of health. sec.145.141. Plans, Approvals, and Construction Procedures. (a) Submittal of preliminary plans. (1) When construction is contemplated for new buildings, additions, conversion of buildings not licensed by the department (including formerly licensed facilities), or remodeling of existing licensed facilities, one copy of the preliminary proposed plans shall be submitted to the department (Architectural Section) for review prior to the preparation of working drawings. For additions, an overall plan similar to sec.145.142(c)(3) of this title (relating to Construction and Initial Survey of Completed Construction) shall be included. (2) Fees for plan reviews will be required in accordance with sec.145. 19 of this title (relating to Fees for Plan Reviews, Construction Inspection Services, and Feasibility Inspection Services). (3) The project will be considered abandoned and the plans will be destroyed if final plans are not submitted to the department in accordance with the following schedule. Resubmittal of plans and additional plan review fees will be required if, after the abandonment period, the project will be constructed: (A) nursing facilities-12 months from the submittal date of the preliminary plans for review and approval; (B) facilities serving persons with mental retardation and related conditions- 24 months from the submittal date of the preliminary plans for review and approval; (C) maternity facilities-24 months from the submittal date of the preliminary plans for review and approval. (4) The plans shall be drawn to scale, shall indicate the usage of all spaces, sizes of areas and rooms, and the type and location of fixed equipment. New construction or additions shall include a site plan showing all pertinent conditions including grades and all structures on the site. Written approval of the local health authority, building department, and of the local fire marshal having jurisdiction shall be submitted. (5) A general description of the surrounding area and vicinity (commercial, residential, rural, shopping, available transportation, etc.) shall be furnished for new locations. (b) Submittal of intermediate plans. Nursing facilities may need to submit intermediate stage plans and specifications (50% to 75% complete) for review, particularly on new, larger, or more complex construction projects. Review of intermediate plans is not required for maternity facilities or facilities serving persons with mental retardation and related conditions. (c) Submittal of final plans. (1) Before construction is begun, one copy of working drawings and specifications (contract documents) in sufficient detail to interpret compliance with these standards and assure proper construction shall be submitted to the department for review within 60 days of receipt of such documents and required plan review fee. These documents shall be prepared according to accepted architectural practice and shall include general construction, special conditions, schedules, and any other pertinent information that the department may require. In addition, two extra copies of the floor plan (only) shall be submitted with the complete set. (2) The project will be considered abandoned and the plans destroyed if the project is not under construction and continuing progress shown in accordance with the schedule listed in subparagraphs (A)-(C) of this paragraph. Resubmittal of plans and full plan review fee will again be required if, after the abandonment period, the project will be constructed. Fees will be as required in accordance with sec.145.19 of this title (relating to Fees for Plan Reviews, Construction Inspection Services, and Feasibility Inspection Services): (A) nursing facilities-six months from the date of the final review of the plans; (B) facilities serving persons with mental retardation and related conditions- 12 months from the date of the final review of the plans; (C) maternity facilities-12 months from the date of the final review of the plans. (3) Final copies of plans shall have (in the reproduction process by which plans are reproduced) a title block showing name of facility, person or organization preparing the sheet, sheet numbers, facility address, and drawing date. Certain parts of final plans, designs, and specifications shall bear the seal of a registered professional engineer approved by the State Board of Registration for Professional Engineers to operate in Texas. These certain parts include sheets and sections covering structural, electrical, mechanical, and sanitary engineering. Contract documents for additions and remodeling and for the construction of an entirely new facility shall be prepared by an architect licensed by the Texas State Board of Architectural Examiners. Drawings shall bear the seal of the architect. (4) A final plan for a major addition to a facility shall include a basic layout to scale of the entire building onto which the addition connects. North direction shall be shown. Usually the entire basic layout can be to scale such as 1/16 inch per foot or 1/32 inch per foot for very large buildings. (5) Plans and specifications for conversions or remodeling shall be complete for all parts and features involved. (6) It is the sponsor's responsibility to employ qualified personnel to prepare the contract documents for construction. If the contract documents have errors or omissions to the extent that conformance with standards cannot be reasonably assured or determined, a revised set of documents for review may be requested. For additions and remodeling to existing licensed facilities, construction shall not be started until the final contract documents are reviewed and approved in writing by the department within 60 days of receipt of final drawings and required plan review fee. (7) The review of plans and specifications by the department is based on general utility, minimum licensing standards, and conformance with the Life Safety Code, and is not to be construed as all-inclusive approval of the structural, electrical, or mechanical components. (d) Contract documents. (1) Site plan documents shall include grade contours; streets (with names); north arrow; fire hydrants; fire lanes; utilities, public or private; fences; unusual site conditions, such as ditches, low water levels, other buildings on- site; and indications of buildings five feet or less beyond site property lines. Site plan documents for nursing facilities may include the developed landscaping plan for resident use as called for in sec.145.62(f) of this title (relating to Location and Site) . (2) Foundation plan documents shall include general foundation design and details. (3) Floor plan documents shall include room names, numbers, and usages; doors (numbered) including swing; windows; legend or clarification of wall types; dimensions; fixed equipment; plumbing fixtures; and kitchen basic layout; and identification of all smoke barrier walls (outside wall to outside wall) or fire walls. (4) For both new construction and additions or remodeling to existing buildings, an overall plan of the entire building shall be drawn or reduced to fit on an 8 1/2 inch by 11 inch sheet; submit two reduced plans for file record. See sec.145.142(c) (3) of this title (relating to Construction and Initial Survey of Completed Construction). (5) Schedules shall include door materials, widths, types; window materials, sizes, types; room finishes; special hardware. (6) Elevations and roof plan shall include exterior elevations, including material note indications and any roof top equipment; roof slopes, drains, gas piping, etc., and interior elevations where needed for special conditions. (7) Details shall include wall sections as needed (especially for special conditions); cabinet and built-in work, basic design only; cross sections through buildings as needed; and miscellaneous details and enlargements as needed. (8) Building structure documents shall include structural framing layout and details (primarily for column, beam, joist, and structural frame building); roof framing layout (when cannot be adequately shown on cross section); cross sections in quantity and detail to show sufficient structural design and structural details as necessary to assure adequate structural design, also calculated design loads. (9) Electrical documents shall include electrical layout, including lights, convenience outlets, equipment outlets, switches, and other electrical outlets and devices; service, circuiting, distribution, and panel diagrams; exit light system (exit signs and emergency egress lighting); emergency electrical provisions (such as generators and panels); fire alarm and similar systems (such as control panel, devices, and alarms); and sizes and details sufficient to assure safe and properly operating systems. In addition: (A) for nursing facilities, a nurse call system; and (B) for facilities serving persons with mental retardation and related conditions, a staff communication system. (10) Plumbing documents shall include plumbing layout with pipe sizes and details sufficient to assure safe and properly operating systems, water systems, sanitary systems, gas systems, other systems normally considered under the scope of plumbing, fixtures, and provisions for combustion air supply. (11) Heating, ventilation, and air-conditioning (HVAC) documents shall include sufficient details of HVAC systems and components to assure a safe and properly operating installation including, but not limited to, heating, ventilating, and air-conditioning layout, ducts, protection of duct inlets and outlets, combustion air, piping, exhausts, and duct smoke and/or fire dampers; and equipment types, sizes, and locations. (12) Sprinkler system documents shall include plans and details of NFPA designed systems; plans and details of partial systems provided only for hazardous areas; electrical devices interconnected to the alarm system. (13) Other layouts, plans, or details as may be necessary for a clear understanding of the design and scope of the project; including plans covering private water or sewer systems shall be reviewed by the local health or wastewater authority having jurisdiction. If no local authority, then the plans will be reviewed by the department. (14) Specifications shall include installation techniques, quality standards and/or manufacturers, references to specific codes and standards, design criteria, special equipment, hardware, painting, and any others as needed to amplify drawings and notes. sec.145.142. Construction and Initial Survey of Completed Construction. (a) Construction phase. (1) The department shall be notified in writing of construction start. (2) All construction shall be done in accordance with the completed plans and specifications as submitted for review and as modified in accordance with review requirements. Any deviations therefrom must have prior approval of the department. Revised drawings may be required if the change is significant. (3) A preliminary stage construction inspection is required for most construction work unless otherwise instructed by the department. A minimum of three weeks notification prior to applying interior wall and ceiling surfaces (except for smoke barrier wall surfaces which shall be completed) must be given so that the inspector may schedule the preliminary visit. (b) Initial survey of completed construction. (1) Upon completion of construction, including grounds and basic equipment and furnishings, a final construction inspection (initial survey) of the facility is required to be performed by the department (architectural section) prior to admitting residents. A minimum of three weeks advance notice is needed. The completed construction shall have the written approval of the local authorities having jurisdiction, including the fire marshal, health department, and building inspector. (2) After the completed construction has been surveyed by a representative of the architectural section of the department and found acceptable, this information will be conveyed to the licensing officer 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. Note that the building, grades, drives, parking and grounds must be essentially 100% complete at the time of this initial survey visit for occupancy approval and licensing, including basic furnishings and operational needs. (3) The following documents must be available to the department's architectural inspecting surveyor at the time of the survey of the completed building: (A) written approval of local authorities as called for in paragraph (1) of this subsection; (B) written certification of the fire alarm system by the installing agent (Form FML-009 of the Texas State Fire Marshal); (C) documentation of materials used in the building which are required to have a specific limited fire or flame spread rating including special wall finishes or floor coverings, flame retardant curtains (including cubicle curtains), rated ceilings, etc. This must include a signed letter from the installer, in the case of carpeting, etc., verifying that the carpeting installed is the carpet named in the laboratory test document; (D) approval of the completed sprinkler system installation by the Texas Department of Insurance or the designing engineer. A copy of the material list and test certification shall be available; (E) service contracts for maintenance and testing of alarm systems, sprinkler systems, etc.; (F) a copy of gas test results of the facility's gas lines from the meter; (G) a written statement from an architect/engineer stating that, to the best of his/her knowledge, the building was constructed in accordance with the approved drawings; and (H) any other such documentation as needed and called for. (c) Non-approval of new construction. (1) If, during the initial on-site survey of completed construction, the surveyor finds certain basic requirements not met, he may recommend to the department that the facility not yet be licensed and approved for occupancy. Such basic items may include the following: (A) substantial changes made during construction which were not submitted to the department for review and which may require revised as-built drawings to cover the changes. This may include architectural, structural, mechanical, and electrical items (reference subsection (a)(2) of this section); (B) construction which does not meet minimum code or licensure standards for basic requirements such as corridor widths being less than eight feet clear width, ceilings installed at less than the minimum seven feet six inches height, resident bedroom dimensions less than required width, and other such features which would disrupt or otherwise adversely affect the residents and staff if corrected after occupancy; (C) no written approval by local authorities; (D) fire protection systems not completely installed or not functioning properly including, but not limited to, fire alarm systems, emergency power and lighting, and sprinkler systems; (E) required exits are not all usable according to Life Safety Code requirements; (F) telephone not installed or not properly working; (G) sufficient basic furnishings, essential appliances and equipment are not installed or not functioning; and (H) any other basic operational or safety feature which the surveyor, as the authority having jurisdiction, encounters which in his/her judgment would preclude safe and normal occupancy by residents on that day. (2) If the surveyor encounters deficiencies that do not affect the health and safety of the residents, licensure may be recommended based on an approved written plan of correction by the facility's administrator. (3) Copies of reduced size floor plan (on an 8 1/2 inch by 11 inch sheet) shall be submitted in duplicate to the department for record/file use and for the facility use for evacuation plan, fire alarm zone identification, etc. The plan shall contain basic legible information such as overall dimensions, room usage names, actual bedroom numbers, doors, windows, and any other pertinent information. (d) Feasibility inspections. A feasibility inspection may be requested on any existing structure that is proposed to be converted to a facility. This inspection shall be requested through the department. A fee will be charged as required by sec.145.19 of this title (relating to Fees for Plan Reviews, Construction Inspection Services, and Feasibility Inspection Services). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321485 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 834-6770 Subchapter E. Medication Aides 25 TAC sec.sec.145.161-145.174 The new sections are adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with the authority to adopt rules concerning nursing facilities and related institutions; and sec.12.001, which provides the Board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. sec.145.164. Training Requirements; Nursing Graduates; Reciprocity. (a) Each applicant for a permit issued under Health and Safety Code, Chapter 242, Subchapter F, must complete a training program unless the applicant meets the requirements of subsections (c) or (d) of this section. (b) Prior to application for a permit under this subchapter, all persons: (1) must be able to read, write, speak, and understand English; (2) must be at least 18 years of age; (3) must be free of communicable diseases and in suitable physical and emotional health to safely administer medications; (4) must be a graduate of a high school or have a general equivalency diploma; (5) must be currently employed in a facility as a nurse aide or nonlicensed direct care staff person; and (6) must have been employed in a facility for 90 days as a nurse aide or nonlicensed direct care staff person. This employment must have been completed within the 12-month period preceding the first official day of the applicant's medication aide training program. (c) A person who is attending or has attended an accredited school of nursing and who does not hold a license to practice professional or vocational nursing meets the training requirement for issuance of a permit under this subchapter if the person: (1) attended the nursing school no earlier than January 1 of the year immediately preceding the year of application for a permit under this subchapter; (2) successfully completed courses at the nursing school which cover the Texas Department of Health's (department) curriculum for a medication aide training program; (3) submits a statement on the form provided by the department which is signed by the nursing school's administrator or other authorized individual and certifies that the person completed the courses specified under paragraph (2) of this subsection. The administrator is responsible for determining that the courses to which he or she certifies cover the department's curriculum. The statement shall be submitted with the person's application for a permit under this subchapter; and (4) complies with subsection (d)(1), (2), and (4)-(9) of this section. (d) A person who is a graduate of an accredited school of nursing and who does not hold a license to practice professional or vocational nursing meets the training requirement for issuance of a permit under this subchapter; provided, however, the date of graduation from the nursing school must have been no earlier than January 1 of the year immediately preceding the year of application for a permit under this subchapter. (1) An official application form shall be submitted to the department by the graduate. The applicant must meet the requirements of subsection (b)(1)-(4) of this section. (2) The application shall be accompanied by the permit application fee as set out in sec.145.20 of this title (relating to Fees for Issuance and Renewal of Permits to Administer Medications). (3) The applicant must include an official transcript documenting graduation from an accredited school of nursing. (4) The Texas Department of Health (department) shall acknowledge receipt of the application by forwarding to the applicant a copy of this subchapter and the department's open book examination. (5) The applicant shall complete the open book examination and return it within 45 days to the department. (6) The applicant shall complete the department's written examination. The site of the examination shall be determined by the department. Any applicant failing to schedule and take the examination within 45 days of the examination notice may have his or her application voided. (7) An open book or written examination shall not be retaken if the applicant fails. (8) Upon successful completion of the two examinations, the department will evaluate all application documents submitted by the applicant. (9) The department shall notify the applicant in writing of the examination results. (e) A person who holds a valid license, registration, certificate, or permit as a medication aide issued by another state whose minimum standards or requirements are substantially equivalent to or exceed the requirements of this subchapter in effect at the time of application, may request a waiver of the training program requirement. (1) An official application form shall be submitted to the department by the applicant. The applicant must meet the requirements of subsection (b)(1)-(4) of this section. (2) The application shall be accompanied by the permit application fee as set out in sec.145.20 of this title. (3) The application must include a current copy of the rules of the other state governing its licensing and regulation of medication aides, a copy of the legal authority (law, act, code, section, or otherwise) for the state's licensing program, and a certified copy of the license or certificate by which the reciprocal permit is requested. (4) The department shall acknowledge receipt of the application by forwarding to the applicant a copy of this subchapter and the department's open book examination. (5) The department may contact the issuing agency to verify the applicant's status with the agency. (6) The applicant shall complete the department's open book examination and return it within 45 days to the department. (7) The applicant shall complete the department's written examination. The site of the examination shall be determined by the department. Any applicant failing to schedule and take the examination within 45 days of the examination notice may have his or her application voided. (8) An open book or written examination shall not be retaken if the applicant fails. (9) Upon successful completion of the two examinations, the department will evaluate all application documents submitted by the applicant. (10) The department shall notify the applicant in writing of the examination results. sec.145.168. Permit Renewal. (a) General. (1) When issued, an initial permit is valid for one year from date of issuance. (2) A permit holder must renew the permit annually. (3) Each permit holder is responsible for renewing the permit before the expiration date. Failure to receive notification from the Texas Department of Health (department) prior to the expiration date of the permit shall not excuse failure to file for timely renewal. (4) A permit holder must complete a seven clock hour continuing education program approved by the department prior to expiration of the permit in order to renew the permit. Continuing education hours are not required for the first renewal. After a permit is renewed for the first time, the permit holder must begin earning approved continuing education hours. (5) The department shall deny renewal of the permit of a permit holder who is in violation of Health and Safety Code, Chapter 242, Subchapter F, or this subchapter at the time of application for renewal. (b) Permit renewal procedures. (1) At least 30 days prior to the expiration date of a permit, the department will send to the permit holder, at the address listed in the department's records, notice of the expiration date of the permit and the amount of the renewal fee due and a renewal form which the permit holder must complete and return with the required renewal fee. (2) The renewal form shall include the preferred mailing address of the permit holder and information on certain misdemeanor and felony convictions. It must be signed by the permit holder. (3) The department shall issue a renewal permit to a permit holder who has met all requirements for renewal. (4) A permit shall not be renewed if the permit holder does not complete the required seven-hour continuing education requirement. Successful completion shall be determined by the student's instructor. An individual who does not meet the continuing education requirement shall complete a new program, application, and examination in accordance with the requirements of this subchapter. (c) Late renewal procedures. (1) A person whose permit has expired for not more than two years may renew the permit by submitting to the department: (A) the permit renewal form; (B) all accrued renewal fees; (C) proof of having earned, during the expired period, seven hours in an approved continuing education program for each year or part of a year that the permit has been expired; and (D) proof of having earned, prior to expiration of the permit, seven hours in an approved continuing education program as required in subsection (a)(5) of this section. (2) A permit that is not renewed during the two years after expiration may not be renewed. (d) Notice. Notices of permit renewal approval, disapproval, or deficiency shall be in accordance with sec.145.174 of this title (relating to Application Processing). sec.145.170. Training Program Requirements. (a) Application. An educational institution accredited by the Texas Education Agency or Texas Higher Education Coordinating Board which desires to offer a training program shall file an application for approval on an official form. Programs sponsored by state agencies for the training and preparation of its own employees are exempt from the accreditation requirement. An approved institution may offer the training program and a continuing education program. (1) All signatures on official forms and supporting documentation must be originals. (2) The application shall include: (A) the anticipated dates of the program; (B) the location(s) of the classroom course(s); (C) the name of the coordinator of the program; (D) a list of instructors and any other person responsible for the conduct of the program. The list must include addresses and telephone numbers for each instructor; and (E) an outline of the program content and curriculum if the curriculum covers more than the Texas Department of Health's (department) established curricula. (3) The department may conduct an inspection of the classroom site. (4) Notice of approval or proposed disapproval of the application will be given to the program within 30 days of the receipt of a complete application. If the application is proposed to be disapproved due to noncompliance with the requirements of Health and Safety Code, Chapter 242, Subchapter F, or this subchapter, the reasons for disapproval shall be given in the notice. (5) An applicant may request a hearing on a proposed disapproval in writing within 10 days of receipt of the notice of the proposed disapproval. The hearing shall be in accordance with the department's formal hearing procedures under Chapter 1 of this title (relating to Texas Board of Health) and the Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a. If no request is made, the applicant is deemed to have waived the opportunity for a hearing, and the proposed action may be taken. (b) Basic training program. (1) The program shall include, but shall not be limited to, the following instruction and training: (A) procedures for preparation and administration of medications; (B) responsibility, control, accountability, storage, and safeguarding of medications; (C) use of reference material; (D) documentation of medications in resident's clinical records, including pro re nata (PRN) medications; (E) minimum licensing standards for facilities covering pharmaceutical service, nursing service, and clinical records; (F) federal and state certification standards for participation under Title XVIII (Medicare) and Title XIX (Medicaid) of the Social Security Act pertaining to pharmaceutical service, nursing service, and clinical records; (G) lines of authority in the facility, including facility personnel who are immediate supervisors; (H) responsibilities and liabilities associated with the administration and safeguarding of medications; (I) allowable and prohibited practices of permit holders in the administration of medication; (J) drug reactions and side effects of medications commonly administered to facility residents; and (K) rules covering the medication aide program. (2) The program shall consist of 140 hours: 100 hours of classroom instruction and training, 20 hours of return skills demonstration laboratory, 10 hours of clinical experience including clinical observation and skills demonstration under the direct supervision of a licensed nurse in a facility, and 10 more hours in the return skills demonstration laboratory in the preceding order. A classroom or laboratory hour shall constitute 50 clock minutes of actual classroom or laboratory time. (A) Class time shall not exceed four hours in a 24-hour period. (B) The completion date of the program shall be a minimum of 60 days and a maximum of 180 days from the starting date of the program. (3) Each program shall follow the curricula established by the department. (4) At least seven days prior to the commencement of each program, the coordinator shall notify the department in writing of the starting date, the ending date, the daily hours of the program, and the projected number of students. (5) A change in any information presented by the program in an approved application including, but not limited to, location, instructorship, and content must be approved by the department prior to the program's effective date of the change. (6) The program instructors of the classroom hours shall be a registered nurse and registered pharmacist. (A) The nurse instructor shall have a minimum of two years of experience in caring for the elderly, chronically ill, mentally retarded, and/or other long- term care setting. An instructor in a school of nursing may request a waiver of the experience requirement. (B) The pharmacist instructor shall have a minimum of one year of experience and be currently employed as a consultant pharmacist in a facility. (7) The coordinator shall provide clearly defined and written policies regarding each student's clinical experience to the student, the administrator, and the director of nursing in the facility used for the clinical experience. (A) The clinical experience shall be counted only when the student is observing or involved in functions involving medication administration and under the direct, contact supervision of a licensed nurse. (B) The coordinator shall be responsible for final evaluation of the student's clinical experience. (8) Each program shall issue to each student, upon successful completion of the program, a certificate of completion, which shall include the program's name, the student's name, the date of completion, and the signature of the program coordinator or administrative official. (9) Each program shall inform the department of the final grade results for each student within 15 days of completion of the course. The official department class roster form shall be used and signed by the coordinator. (c) Continuing education training program. (1) The program shall consist of at least seven clock hours of classroom instruction. (2) The instructors shall meet the requirements in subsection (b)(6) of this section. (3) Each program shall follow the curricula established by the department. (4) Each program shall inform the department of the name of each permit holder who completes the course within 15 days. The official department class roster form shall be used and signed by the coordinator. sec.145.172. Violations, Complaints, and Disciplinary Actions. (a) Purpose. The purpose of this section is to set out: (1) violations and prohibited actions under Health and Safety Code (code), Chapter 242, Subchapter F, and this subchapter; (2) procedures concerning complaints alleging violations of the code or this subchapter; and (3) Texas Department of Health (department) actions against a person or permit holder when violations have occurred. (b) Compliance. A permit holder must comply with the code and this subchapter. (c) Filing of complaints. (1) Any person may complain to the department alleging that a person or program has violated the code or this subchapter. (2) A person wishing to file a complaint against a permit holder, program, or another person shall notify the department. The initial notification of a complaint may be in writing, by telephone, or by personal visit to the department. The mailing address is Medication Aide Permit Program, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3183. (3) Upon receipt of a complaint, the department shall send to the complainant an acknowledgment letter and the department's complaint form, which the complainant must complete and return to the department before further action can be taken. If the complaint is made by a visit to the department, the form may be given to the complainant at that time; however, it must be completed and returned to the department before further action can be taken. (4) Anonymous complaints may be investigated by the department if the complainant provides sufficient information. (d) Investigation of complaints. (1) The department shall make an initial investigation. (2) If the department determines that the complaint does not come within the department's jurisdiction, the department shall advise the complainant and, if possible, refer the complainant to the appropriate governmental agency for handling such a complaint. (3) The department shall, at least as frequently as quarterly, notify the parties to the complaint of the status of the complaint until its final disposition. (4) If the department determines that there are insufficient grounds to support the complaint, the department shall dismiss the complaint and give written notice of the dismissal to the permit holder or person against whom the complaint has been filed and the complainant. (5) If the department determines that there are sufficient grounds to support the complaint, the department may propose to deny, suspend, emergency suspend, revoke, or not renew a permit or to rescind program approval. (e) Disciplinary actions. (1) The department may deny an application or permit renewal, suspend or revoke a permit, or rescind program approval for any violation of the code or this subchapter. (2) Prior to institution of formal proceedings to revoke or suspend a permit or rescind program approval, the department shall give written notice to the permit holder or program of the facts or conduct alleged to warrant revocation, suspension, or rescission, and the permit holder or program shall be given an opportunity, as described in the notice, to show compliance with all requirements of the Act and this subchapter. (3) If denial, revocation, or suspension of a permit or rescission of program approval is proposed, the department shall give written notice that the permit holder or program must request, in writing, a formal hearing within 30 days of receipt of the notice, or the right to a hearing shall be waived and the permit shall be denied, revoked, or suspended or the program approval shall be rescinded. (4) The formal hearing shall be conducted according to the department's formal hearing procedures under Chapter 1 of this title (relating to Texas Board of Health) and sec.145.171 of this title (relating to Permitting of Persons with Criminal Background), if applicable. (f) Suspension, revocation, or nonrenewal. (1) If the department suspends a permit, the suspension shall remain in effect until the department determines that the reason for suspension no longer exists. The department shall investigate prior to making a determination. (2) During the time of suspension, the suspended permit holder shall return his or her permit to the department. (3) If a suspension overlaps a permit renewal date, the suspended permit holder may comply with the renewal procedures in sec.145.168 of this title (relating to Permit Renewal); however, the department may not renew the permit until the department determines that the reason for suspension no longer exists. (4) If the department revokes or does not renew a permit, a person may reapply for a permit by complying with the requirements and procedures in this subchapter at the time of reapplication. The department may refuse to issue a permit if the reason for revocation or nonrenewal continues to exist. (5) Upon revocation or nonrenewal, a permit holder shall return the permit to the department. sec.145.173. Requirements for Correctional Institutions. (a) Purpose. The purpose of this section is to provide the qualifications, conduct, and practice activities of a medication aide employed in a correctional institution. (b) Supervision and applicable law and rules. A permit holder shall function under the direct supervision of a licensed nurse on duty or on call by the correctional institution using the permit holder. (1) A permit holder must function in accordance with applicable law and rules relating to administration of medication and operation of a correctional institution. (2) A permit holder must comply with Texas Department of Criminal Justice rules applicable to personnel used in a correctional institution. (c) Allowable and prohibited practices of a permit holder. (1) A permit holder is permitted to: (A) observe and report to the correctional institution's charge nurse reactions and side effects to medication shown by an inmate; (B) take and record vital signs prior to the administration of medication which could affect or change the vital signs; (C) administer regularly prescribed medication which the permit holder has been trained to administer only after personally preparing (setting up) the medication to be administered. The medication aide shall document the administered medication in the inmate's clinical record; (D) administer oxygen per nasal canula or a non-sealing face mask only in an emergency. Immediately after the emergency, the permit holder shall verbally notify the licensed nurse on duty or on call and appropriately document the action and notifications; (E) apply specifically ordered ophthalmic, otic, nasal, vaginal, and rectal medication; (F) administer previously ordered pro re nata (PRN) medication. A permit holder must document in the inmate's records, symptoms indicating the need for the medication, and the time the symptoms occurred; (G) administer the initial dose of a medication; and (H) order an inmate's medications from the correctional institution's pharmacy. (2) Permit holders shall not: (A) administer medication by the injection route including: (i) intramuscular; (ii) intravenous; (iii) subcutaneous; (iv) intradermal; and (v) hypodermoclysis; (B) administer medication used for intermittent positive pressure breathing (IPPB) treatments or any form of medication inhalation treatments; (C) calculate an inmate's medication dose for administration except that the permit holder may: (i) measure a prescribed amount of a liquid medication to be administered; and (ii) break a tablet for administration to an inmate provided the licensed nurse on duty or on call has calculated the dosage. The inmate's medication card or its equivalent shall accurately document how the tablet must be altered prior to administration; (D) crush medication unless authorization is obtained from the licensed nurse on duty or on call. The authorization to crush the specific medication shall be documented on the inmate's medication card or its equivalent; (E) administer medications or feedings by way of a tube inserted in a cavity of the body; (F) receive or assume responsibility for reducing to writing a verbal or telephone order from a physician, dentist, or podiatrist; (G) apply topical medications that involve the treatment of skin that is broken or blistered or when a specified aseptic technique is ordered by the attending licensed practitioner; (H) steal, divert, or otherwise misuse medications; (I) violate any provision of the Health and Safety Code, Chapter 242, Subchapter F, or this section; (J) fraudulently procure or attempt to procure a permit; (K) neglect to administer appropriate medications, as prescribed, in a responsible manner; or (L) administer medications if the person is unable to do so with reasonable skill and safety to residents by reason of drunkenness, excessive use of drugs, narcotics, chemicals, or any other type of material. (d) Application. (1) An employee of a correctional institution shall submit an official application form to the Texas Department of Health (department). An application for a permit shall be made in accordance with sec.145.165(b) and (c) of this title (relating to Application Procedures). (2) The Texas Department of Criminal Justice (TDCJ) shall certify to the department the individual(s) who have completed a training program approved pursuant to sec.145.170 of this title (relating to Training Program Requirements) or approved by the department under earlier rules relating to medication aides. A previous training program taught by the predecessor agency of the Texas Department of Criminal Justice (TDCJ) using the then-approved department's curriculum is deemed to meet the training program requirements of this paragraph. (3) Examination procedures shall be as follows. (A) A written examination shall be given by the department to each applicant at a site determined by the department. Examination provisions for employees of correctional institutions shall comply with sec.145.166(a)(2),(5)-(6), and (b) of this title (relating to Examination). (B) The applicant must complete the examination no later than 90 days after certification is received by the department from the Texas Department of Criminal Justice. Another examination shall not be permitted if the applicant fails the examination unless the applicant enrolls in and successfully completes another training program. (e) Determination of eligibility. The department shall determine eligibility according to sec.145. 167(a),(b),(c)(3)-(5), and (d) of this title (relating to Determination of Eligibility) and subsection (d)(2) and (3)(B) of this section. (f) Renewal. A permit shall be renewed in accordance with sec.145.168 of this title (relating to Permit Renewal). (g) Changes. Permit holders shall report changes in accordance with sec.145.169 of this title (relating to Changes). (h) Fees. The schedule of fees shall be in accordance with sec.145.20 of this title (relating to Fees for Issuance and Renewal of Permits to Administer Medications). (i) Violations, complaints, and disciplinary actions. Complaints, investigations, disciplinary actions, suspensions, revocation, and nonrenewals shall be handled in the manner set forth in sec.145.172 of this title (relating to Violations, Complaints, and Disciplinary Actions). Section 145.171 of this title (relating to Permitting of Persons with Criminal Backgrounds) shall apply to permit holders under this section. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321486 Robert A. MacLean, M.D. Deputy Commissioner Texas Deparment of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 834-6770 Subchapter F. Inspections, Surveys and Visits 25 TAC sec.sec.145.191-145.192 The new sections are adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with the authority to adopt rules concerning nursing facilities and related institutions; and sec.12.001 which provides the Board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. sec.145.192. Determinations and Actions Pursuant to Inspections. (a) The Texas Department of Health (department) will determine if a facility meets the licensing rules, including both physical plant and facility operation requirements. (b) Violations of regulations will be listed on forms designed for the purpose of the inspection or will be listed in letter form when administrative penalties are being proposed. (c) At the conclusion of an inspection or survey, the violations will be discussed in an exit conference with the facility's management. A written list of the violations will be 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) will be communicated to the facility in writing within 10 working days of the exit conference, and the facility will have 10 working days to communicate a reply before such additional violation is added to or made a part of the permanent record. Copies of any narratives or similar papers written to further describe the conditions found will be furnished to the facility. (d) Violations found during complaint investigations will be discussed with the facility management and a plan of correction obtained; the violations will be furnished in writing to the facility, as well as any supporting narratives, but shall not reveal the source of the complaint. (e) A clear and concise summary in nontechnical language of each licensure inspection, inspection of care, and/or complaint investigation will be provided by the department. That summary will be in a form outlining significant violations noted at the time of the visit, but not to include names of residents, staff, or any other statement that would identify individual residents or other prohibited information under general rules of public disclosure. The summary will be provided to the facility at the time the report of contact or similar document is provided. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321487 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 834-6770 Subchapter G. Abuse, Neglect, and Exploitation; Complaint and Incident Reports and Investigations 25 TAC sec.sec.145.211-145.217 The new sections are adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with the authority to adopt rules concerning nursing facilities and related institutions; and sec.12.001 which provides the Board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. sec.145.215. Investigations of Incidents and Complaints. (a) In accordance with the memorandum of understanding which is adopted by reference in sec.111.1 of this title (relating to Memorandum of Understanding Concerning Protective Services for the Elderly), the Texas Department of Health (department) will receive and investigate report of abuse, neglect, and exploitation of elderly and disabled persons residing in facilities licensed under this chapter. (b) The department will only investigate complaints of abuse, neglect, or exploitation when the act occurs in the facility, when such licensed facility is responsible for the supervision of the resident at the time the act occurs, or when the alleged perpetrator is affiliated with the facility. Other complaints of abuse, neglect, or exploitation not meeting this criteria will be referred to the Texas Department of Protective and Regulatory Services. (c) The primary purpose of an investigation is the protection of the resident. If the department determines that, for protection of the resident from further abuse or neglect, the resident should be removed from the facility, the department will petition a court for temporary care and protection of the resident. (d) Complaint investigations shall include a visit or visits to the resident and the facility and an interview with the resident. If the facility fails to admit department staff for such investigations, the department will seek a probate or county court order for admission. (e) Investigations of reports do not exonerate facilities, who may still be subject to the provisions of Subchapter H of this chapter (relating to Enforcement). (f) If the initial phase of an incident or complaint investigation concludes that no abuse or neglect adversely affecting the physical or mental health or welfare of a resident has occurred, no further investigation will be undertaken. (g) In cases concluded to be abuse, neglect, or exploitation, the written report of the investigation by the department, along with its recommendations, shall be submitted to the appropriate district attorney and law enforcement agency, as well as to the appropriate state agencies, upon request. The investigation shall include: (1) the nature, extent and cause of such abuse or neglect; (2) the identity of the person responsible for the abuse or neglect; (3) the names and conditions of the other institution residents who are affected or likely to be affected by the investigation as they relate to the abuse or neglect alleged, not necessarily their medical diagnoses; (4) the evaluation of the persons responsible for the care of the institution residents including the adequacy of the persons in numbers and the competence of persons to deliver the care intended, including specific evaluation individually of those persons directly involved in causing abuse or neglect; and (5) the adequacy of the institution environment which may include general operation, competence of staff, attitude of staff, physical environment, and other considerations. sec.145.216. General Provisions. (a) Confidentiality. All reports, records, and working papers used or developed by the Texas Department of Health (department) in an investigation are confidential, and may be released to the public only as provided below. (1) Completed written investigation reports are open to the public, provided the report is deidentified. The process of deidentification means removing all names and other personally identifiable data, including any information from witnesses and others furnished to the department as part of the investigation. (2) The reporter and the facility will be notified of the results of the department's investigation of a reported case of abuse or neglect, whether the department concluded that abuse or neglect occurred or did not occur. (b) Immunity. A person who reports suspected instances of abuse or neglect shall, in the absence of bad faith or malicious conduct, be immune from civil or criminal liability which might have otherwise resulted from making the report. Such immunity shall extend to participation in any judicial proceeding resulting from the report. (c) Privileged communications. In a proceeding regarding a report or investigation conducted under this subchapter, evidence shall not be excluded on a claim of privileged communication except in the case of a communication between an attorney and a client. (d) Central registry. The department shall maintain a central registry of reported cases of abuse and neglect at the central office in Austin. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321488 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 834-6770 Subchapter H. Enforcement 25 TAC sec.sec.145.231-145.234, 145.236-145.238 The new sections are adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with the authority to adopt rules concerning nursing facilities and related institutions; and sec.12.001 which provides the Board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. sec.145.231. Enforcement Generally. (a) Determining degree of noncompliance and determining disciplinary actions. (1) Texas Department of Health (department) personnel will determine the extent to which violations adversely affect the licensure status of the facility. (2) A facility may have violations which are not serious and do not impose an immediate threat to the residents and yet be considered to be in substantial compliance as long as those violations can be reasonably expected to be corrected with acceptable methods and within an acceptable time. (3) When department personnel determine that a facility is out of compliance with requirements to a degree that the facility must be specially warned beyond the routine methods of apprising the facility of its violations, a warning letter will be sent by certified mail to the facility. (b) Enforcement procedures. When a violation of Health and Safety Code, Chapter 242, these rules, or an order adopted or license issued under Chapter 242 occurs, the department is authorized to: (1) suspend a license; (2) revoke a license; (3) refer the violation to the Attorney General for injunction and/or the assessment of civil penalties; or (4) assess administrative penalties. sec.145.232. Suspension. (a) When a serious violation occurs or when a series of violations occur such that the event or series of events may (or could) jeopardize the health and safety of residents, the Texas Department of Health (department) may suspend the license. (b) Suspension of a license may occur simultaneously with any other enforcement provision available to the department. (c) Unless accompanied by an Emergency Closure Order, the facility will be notified by certified mail of the department's intent to suspend the license. The facility shall have 20 days from receiving the certified mail notice within which to request a hearing, in accordance with sec.145.238 of this title (relating to Administrative Hearings). (d) If the department suspends a license, the suspension shall remain in effect until the department determines that the reason for suspension no longer exists. The department shall conduct an on-site investigation prior to making a determination. During the time of suspension, the suspended licensee shall return the license to the department. sec.145.233. Revocation. (a) When a serious violation occurs, such that the health and safety of residents is jeopardized, the Texas Department of Health (department) may revoke the license. (b) The department may revoke a license if the licensee: (1) submitted false or misleading statements in the application for a license or any accompanying attachments; (2) used subterfuge or other evasive means to obtain the license; or (3) concealed a material fact in the application for a license or failed to disclose information required in sec.145.13 of this title (relating to Applicant Disclosure Requirements) that would have been the basis to deny the license under sec.145.17 of this title (relating to Criteria for Denying a License or Renewal). (c) Revocation of a license may occur simultaneously with any other enforcement provision available to the department. (d) Unless accompanied by an Emergency Closure Order, the facility will be notified by certified mail of the department's intent to revoke a license. The facility shall have 20 days from receiving the certified mail notice within which to request a hearing, in accordance with sec.145.238 of this title (relating to Administrative Hearings). sec.145.236. Emergency Suspension and Closing Order. (a) If the Texas Department of Health (department) finds that a licensee is operating in violation of these rules or Health and Safety Code, Chapter 242, and that such violation creates an immediate threat to the health and safety of a resident, the department shall recommend to the commissioner of health that the facility be immediately closed and/or that the license be suspended. (b) Any order which suspends a license or closes all or any part of a facility is effective immediately on the date that the licensee receives written notice or is effective on the date specified in the order, whichever is later. Written notice includes transmission by telecopier. (c) An emergency order under this section is valid for 10 days after the effective date. (d) In those circumstances when it is necessary to invoke the provision of this section and conditions warrant a relocation of residents, whether for a total facility or distinct part, the following rules shall apply. (1) In all circumstances, a resident's rights or freedom of choice in selecting treatment facilities shall be respected. (2) If a facility or part thereof is closed: (A) the department shall 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 shall notify each resident's guardian or responsible party and attending physician, advising them of the action in process; (C) the resident or the resident's guardian or responsible person shall be given opportunity to designate a preference for a specific facility or for other arrangements; and (D) the department shall arrange for relocation to other facilities in the area in accordance with the resident's preference. A facility chosen for relocation must be in good standing with the department 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 resident. (E) If absolutely necessary, to prevent transport over substantial distances, the department will grant a waiver to a receiving facility to temporarily exceed its licensed capacity, provided the health and safety of residents 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 the department staff, until residents can be transferred to a permanent location. (F) With each resident transferred, the following reports, records, and supplies shall 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 party responsible for the resident; attending physician; Medicare and Medicaid identification number; social security number; and other identification information as deemed necessary and available; (iii) all medication dispensed in the name of the resident for which physician's orders are current shall be inventoried and transferred with the resident. Medications past an expiration date or discontinued by physician order shall be inventoried for disposition in accordance with state law; (iv) the residents' personal belongings, clothing, and toilet articles. An inventory of personal property and valuables shall be made by the closing facility; and (v) resident trust fund accounts maintained by the closing facility. All items shall be properly inventoried and receipts obtained for audit purposes by the appropriate state agency. (G) If the closed facility is allowed to reopen within 90 days, the relocated residents shall have the first right to return to the facility. Relocated residents 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 shall be treated as a new admission in regard to exchange of medical information, medications, completion of required forms, etc. (I) A licensee whose facility is closed under this section, is entitled to request and administrative hearing, but such request does not suspend the effectiveness of the order. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321489 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 834-6770 Subchapter I. Trustees for Nursing Facilities 25 TAC sec.sec.145.261-145.263 The new sections are adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with the authority to adopt rules concerning nursing facilities and related institutions; and sec.12.001 which provides the Board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321490 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 834-6770 Subchapter J. Respite Care 25 TAC sec.sec.145.281-145.287 The new sections are adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with the authority to adopt rules concerning nursing facilities and related institutions; and sec.12.001 which provides the Board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. sec.145.284. Notification. A institution that offers respite care shall notify the Texas Department of Health (department) in writing that it offers respite care. sec.145.285. Inspections. The Texas Department of Health (department), at the time of a licensing inspection or at other times determined necessary by the department, shall inspect an institution's records of respite care services, physical accommodations available for respite care, and the plan of care records to ensure that the respite care services comply with the licensing standards of this chapter, with the following exceptions. (1) The clinical record of each respite care resident shall contain: (A) general identifying information necessary to care for the resident and maintain his/her clinical record; (B) resident assessment according to facility policy and care plan according to sec.145.283 of this title (relating to Plan of Care); (C) progress notes on flow sheets which document care/services; (D) reports of diagnostic or lab studies done during resident stay; (E) any physician's orders given during resident stay; and (F) discharge and readmission information based on facility policy for respite care services. (2) Resident assessment requirements found at sec.145.41(e) of this title (relating to Standards for Nursing Facilities) do not apply to respite care residents. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321491 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 834-6770 Subchapter K. Certification of Facilities for Care of Persons with Alzheimer's Disease and Related Disorders 25 TAC sec.sec.145.301-145.304 The new sections are adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with the authority to adopt rules concerning nursing facilities and related institutions; and sec.12.001 which provides the Board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. sec.145.303. General Requirements for a Certified Facility. (a) Resident admission. The facility shall admit and retain only residents whose needs can be met through service from the facility staff, or in cooperation with community resources or other providers under contract. (b) Allowable number of residents. Each certificate shall specify the maximum allowable number of residents to be cared for at any one time in the certified area. No greater number of residents shall be kept in the certified area than is authorized by the certificate. (c) Nullification of certificate. When a certificate becomes null and void, the facility shall remove the certificate from display and advertising, and the certificate shall be surrendered to the department on request. Also a certificate is non-transferable and non-assignable; therefore, a certificate existing at the time of change of ownership becomes null and void. (d) Display of certificate. A certificate shall be displayed in a prominent location for public view. The facility may advertise as long as the certificate is in effect; however, the type of advertising shall be such that the advertising can be withdrawn if the certificate becomes null and void. Upon removal of the certificate it is the responsibility of the facility to inform interested persons of the revised status. The certificate is the property of the department. (e) Cancellation of certificate. A certificate shall be canceled if the department finds that the certified unit is not in compliance with applicable laws and rules. (f) Effective period of certificate. A certificate is valid for one year from the effective date of approval by the department. sec.145.304. Standards for Certified Alzheimer's Facilities. (a) General requirements. (1) Security and safety measures are provided to prevent the residents from harming themselves or leaving designated indoor or outdoor areas without supervision by staff members or other responsible escort. Policies will also be provided to prevent abuse of the rights and property of other residents. (2) All assigned staff members and consultants to the unit have documented training in the care and handling of Alzheimer's residents, including at least: (A) eight hours of orientation to cover the following: (i) facility Alzheimer's policies; (ii) etiology and treatment of dementias; (iii) stages of Alzheimer's disease; (iv) behavior management; and (v) communication; and (B) four hours of the required annual continuing education shall be in Alzheimer's disease or related disorders. (3) A social worker, certified by the State of Texas, is utilized as Community/Family Support Coordinator whose functions shall include: (A) evaluation of resident's initial social history on admission; (B) utilization of community resources; (C) conducting quarterly family support group meetings; and (D) identification and utilization of existing Alzheimer's network. (4) Residents are provided privacy in treatment and in care for his or her personal needs. (5) Alzheimer's units located as a part of a facility as a distinct area from the normal resident population shall be provided with the following. (A) Living rooms, day rooms, lounges, sun rooms, etc., shall be provided on a sliding scale as follows: [graphic] (B) A dining area shall be provided and shall be a minimum of 10 square feet per resident with at least one exterior window(s). (C) Bathtubs or showers shall be provided at a minimum rate of: (i) one for each 20 beds in nursing/custodial care homes; (ii) one for each 10 beds in personal care homes, which are not otherwise served by bathing facilities directly accessible from resident bedrooms; and (iii) one bathing unit is required in adult day health care facilities. (D) Water closets and lavatories shall be provided at a minimum rate of: (i) one for each eight beds in nursing/custodial care homes; (ii) one for each six beds in personal care homes; and (iii) one for each 15 clients in adult day health care facilities. (E) In all facilities a lavatory shall be provided in or adjacent to each area having a water closet. (F) A monitoring station for staff shall be provided with the following: (i) writing surface such as a desk or built-in counter top; (ii) chair; (iii) task illumination; (iv) communication system such as a telephone or intercom to the main staff station of the facility; and (v) storage for resident records such as a lockable metal cabinet or storage closet. (G) Two remote exits must be provided in order to meet Life Safety Code requirements. (H) Control doors, if used for security of the residents, shall be similar to smoke doors, i.e., be 44 inches in width each leaf, and swing in opposite directions. A latch or other fastening device on a door shall be provided with a knob, handle, panic bar, or other simple type of releasing device, the method of operation of which is obvious, even in darkness. (I) Locking devices may be used on the control doors provided the following criteria are met. (i) The building must have a complete sprinkler system and/or a complete fire alarm system including a corridor smoke detection system or smoke detectors located in each resident bedroom, which are interconnected into the fire alarm system. (ii) The locking device must be electronic and shall be released when the following occurs: (I) upon activation of the fire alarm or sprinkler systems; (II) power failure to the facility; and (III) by pressing a button located at the main staff station and at the monitoring station. (iii) Key pad or buttons may be located at the control doors for routine use by staff for service. (iv) Upon loss of primary power, the control doors, if not in an exit access, may automatically reset on emergency power. There must be at least two remote exits (on each side of the control doors) which meet all of the requirements for exits, i.e., proper width of egress, proper size of exterior doors, according to the 1985 Life Safety Code. (6) Activity and recreational programs will be provided and utilized to the maximum extent possible for all residents in order to promote physical well being and help with behavior management. The program provided must be tailored to the individual resident's needs, being appropriate for his or her specific impairment and stage of disease. (7) Access to outdoor areas must be provided and such areas must have suitable walls or fencing that do not allow climbing or present a hazard. (8) Any security measures taken to provide for the safety of wandering patients should be as unobtrusive as possible. (9) Toxic garden plantings shall be prohibited. (b) Admission criteria for Alzheimer's units. Residents eligible for admission to Alzheimer's units will have a diagnosis of Alzheimer's disease or related dementing disorders. (c) Patients rights. Understanding that security measures to prevent wandering may infringe on resident rights, care must be exercised in the use of physical restraint or barriers, or chemical restraint. The need for admission to the Alzheimer's unit must be documented by the attending physician. The specific purpose and time-limited orders for any additional physical or chemical restraint must be written and renewed according to facility policy. The frequency of such renewal shall not exceed 60 days in a nursing facility and 90 days in adult day health care facilities, and personal care facilities. (d) Staffing. (1) Specially trained staff will be maintained and assigned exclusively to the Alzheimer's unit. Although emergency scheduling may require substitution of staff, every effort should be made to provide residents with familiar staff members in order to minimize resident confusion. Staff training will meet at least the minimum requirements in sec.145.303(b) of this title (relating to General Requirements for a Certified Facility). (2) Required overall minimum staffing ratios for direct care in certified alzheimer's units in nursing facilities are as follows: [graphic] This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321492 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 834-6770 Subchapter L. Provisions Applicable to Facilities Generally 25 TAC sec.sec.145.321-145.327 The new sections are adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with the authority to adopt rules concerning nursing facilities and related institutions; and sec.12.001 which provides the Board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. sec.145.323. Procedures for Inspection of Public Records. (a) Procedures for inspection of public records will be in accordance with the Texas Open Records Act, Texas Civil Statutes, Article 6252-17a, and as further described in this section. (b) The Bureau of Long Term Care (bureau), Texas Department of Health (department), will be responsible for the maintenance and release of records on licensed facilities, and other related records. (c) The application for inspection of public records is subject to the following criteria. (1) The application shall be made to the Bureau of Long Term Care, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756. (2) The requestor shall identify himself/herself. (3) The requestor shall give reasonable prior notice of the time for inspection and/or copying of records. (4) The requestor shall specify the records requested. (5) On written applications, if the bureau is unable to ascertain the records being requested, the bureau may return the written application to the requestor for further specificity. (6) The bureau shall provide the requested records as soon as possible. However, if the records are in active use, or in storage, or time is needed for proper deidentification or preparation of the records for inspection, the bureau shall so advise the requestor and set an hour and date within a reasonable time when the records will be available. (d) Original records may be inspected or copied, but in no instance will original records be removed from department offices. (e) Records maintained by the bureau are open to the public, with the following exceptions: (1) incomplete reports, audits, evaluations, and investigations made of, for, or by the department are confidential; (2) reports of abuse and neglect are confidential to the extent authorized by Subchapter G of this chapter (relating to Abuse, Neglect, and Exploitation; Complaint and Incident Reports and Investigations); (3) all names and related personal, medical, or other identifying information about a resident are confidential; (4) information about any identifiable person which is defamatory or an invasion of privacy is confidential; (5) information identifying complainants or informants is confidential; (6) itineraries of surveys and inspections are confidential because of the confidentiality requirements of unannounced inspections in Subchapter F of this chapter (relating to Inspections, Surveys, and Visits); and (7) to implement this subsection, the bureau may not alter or deidentify original records. Instead, the bureau will make available for public review or release only a properly deidentified copy of the original record. (f) The bureau will change for copies of records upon request. (1) If the requestor simply wants to inspect records, the requestor will specify the records to be inspected and the bureau will make no charge for this service, except where the bureau chief determines that a charge is appropriate based on the nature of the request. (2) If the requestor wants to request copies of a record, the requestor will specify in writing the records to be copied on an appropriate bureau form, and the bureau will complete the form by specifying the cost of the records which the requestor shall pay in advance. Checks and other instruments of payment will be made payable to the Texas Department of Health. (3) Any expenses for standard-size copies incurred in the reproduction, preparation, or retrieval of records shall be borne by the requestor on a cost basis in accordance with costs established by the State Purchasing and General Services Commission or the Texas Department of Health for office machine copies. (4) For documents that are mailed, the department will charge for the postage at the time it charges for the production. All applicable sales taxes will be added to the cost of copying records. (5) When a request involves more than one long-term care facility, each facility will be considered a separate request. (g) The bureau will make a reasonable effort to furnish records promptly and will extend to the requestor all reasonable comfort and facility for the full exercise of the rights granted by the Open Records Act. sec.145.324. Time Periods for Processing Licenses for Long Term Care Facilities. (a) Generally. (1) The Texas Department of Health (department) considers an application as being received for processing if the department receives the application within 60 days prior to the requested date of the issuance of the license. (2) The department considers an application as being complete when all requirements for licensing have been met, including compliance with standards. If an inspection for compliance is required, the application is not complete until the inspection has occurred and reports reviewed and the applicant complies with the standards. If the department notifies an applicant that an application is not complete, the time frame from this notice to the time that an application is complete is not included in this section. (3) The date of receipt of an application is the date received in the Operations Division, Bureau of Long Term Care, Texas Department of Health. (b) First time period. The first time period is a time from the date of receipt of an application to the date of issuance of a written notice outlining the reasons why the application is unacceptable. The time period is 30 days for each of the following categories: initial application; change of ownership; renewal; and increase in capacity. (c) Second time period. The second time period is the time from the date of receipt of a completed application to the date of issuance of the license. The issuance of the license constitutes the department's official written notice to the facility of the acceptance and filing of the application. The time period is 30 days for each of the following categories: initial application; change of ownership; renewal; and increase in capacity. (d) Reimbursement of fees. (1) In the event the application is not processed in the time periods as stated, the applicant that is a small business as defined in Texas Civil Statutes, Article 6252-13b.1, has a right to request of the program director full reimbursement of all filing fees paid in that particular application process. If the program director does not agree that the established periods have been violated or finds that good cause existed for exceeding the established periods, the request will be denied. (2) Good cause for exceeding the period established in considered to exist if: (A) the number of applications to be processed exceeds by 15 percent or more the number processed in the same calendar quarter of the preceding year; (B) another public or private entity used in the application process caused the delay; or (C) other conditions existed giving good cause for exceeding the established periods. (3) If the request for full reimbursement is denied, the applicant may appeal directly to the commissioner of health for resolution of the dispute. The procedure for the appeal is that the applicant shall send a written statement to the commissioner describing the request for reimbursement and the reasons for it. The program also may send a written statement to the commissioner describing the program's reasons for denying reimbursement. The commissioner shall make a timely decision concerning the appeal and notify the applicant and the program in writing of the decision. (4) Time periods involved in contested case hearings will be the periods described in sec.1.34 of this title (relating to Time Periods for Conducting Contested Case Hearings). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321493 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 834-6770 Subchapter A. Introduction The Texas Department of Health (department) adopts the repeal of existing Chapter 145 and new sec.sec.145.1-145.3, 145.11-145.21, 145.41-145.43, 145. 61- 145.73, 145.92-145.105, 145.131-145.132, 145.141-145.142, 145.161-145.174, 145.191-145.192, 145.211-145.217, 145.231-145.234, 145.236-145.238, 145. 261- 145.263, 145.281-145.287, 145.301-145.304, and 145.321-145.327 concerning nursing facilities and related institutions. Sections 145.2-145.3, 145.11-145. 13, 145.15-145.19, 145.41-145.43, 145.61-145.65, 145.70-145.71, 145.73, 145. 92- 145.93, 145.97, 145.99, 145.101, 145.105, 145.131-145.132, 145.141-145.142, 145.164, 145.168, 145.170, 145.172-145.173, 145.192, 145.215-145.216, 145. 231- 145.233, 145.236, 145.284-145.285, 145.303-145.304, and 145.323-145.324 are adopted with changes to the proposed text as published in the October 20, 1992, issue of the Texas Register (17 TexReg 7309). Section 145.105 is adopted without changes as published in the October 30, 1992 issue of the Texas Register (17 TexReg 7645). Sections 145.1, 145.14, 145.20-145.21, 145.66-145.69, 145.72, 145.94-145.96, 145.98, 145.100, 145.102-145.104, 145. 161-145.163, 145.165- 145.167, 145.169, 145.171, 145.174, 145.191, 145.211-145. 214, 145.217, 145.234, 145.237-145.238, 145.261-145.263, 145.281-145.283, 145. 286-145.287, 145.301- 145.302, 145.321-145.322, and 145.325-145.327 are adopted without changes and will not be republished. The department is withdrawing proposed sec.145.22 concerning financial disclosure because comments received on the proposal have convinced the department that the rule is inappropriate and should not be adopted. The department is withdrawing proposed new sec.145. 91 because the provisions in this section have been combined with section 145. 92 for clarification; accordingly, it is unnecessary to adopt sec.145.91. Finally, the department is withdrawing proposed sec.145.235 concerning administrative penalties because, as a result of comments received, the department has modified and reproposed the section, which was published in the March 30, 1993 issue of the Texas Register for public comment. The adopted sections concern licensing requirements for nursing facilities and related institutions and will replace, modify and update the licensing requirements for nursing facilities and related institutions in existing Chapter 145, which are being repealed in this issue of the Texas Register. The department received numerous comments from groups, associations, agencies and individuals concerning the proposed new sections. A summary of the comments received, including the departments's responses, is as follows. COMMENT: sec.145.3. The definition of "controlling person" should distinguish the term from "principle stockholder" to conform term to definition in Texas Department of Human Services (TDHS) rules. RESPONSE: The department's response is that it has deleted the definition of "controlling person" and replaced it with the more appropriate definition of "person with a disclosable interest". The department has made a corresponding change to the definition of "affiliate" and, also, has made corresponding changes in the rules wherever the term "controlling person" had appeared. COMMENT: sec.145.3. Clarify definition of Life Safety Code because the code is referred to in the rules sometimes as National Fire Protection Association (NFPA) 101-85 and sometimes as NFPA 101-88. This is confusing. Also, the reference in the definition to Standard 101 is incorrect; NFPA standards are not the same as the code. RESPONSE: The department disagrees because the definition complies with state law. COMMENT: sec.145.3. Add definition of "National Electrical Code (NEC)" to mean the 1990 edition of National Electrical Code (NFPA 70-1990), adopted by the National Fire Protection Association, Inc., Batterymarch Park, Quincy, Massachusetts 02269. The definition is necessary because references to NFPA 70 in rules do not specify the appropriate revision. RESPONSE: The department disagrees because the department needs the flexibility to use the latest edition. COMMENT: sec.145.3. Add definition of "postpartum care" because term is used in standards for maternity facilities. RESPONSE: The department disagrees because the definition is unnecessary. COMMENT: sec.145.3. Clarify health or safety hazard provision in definition of "substandard resident care" because any deficiency could be a health or safety hazard. Limit definition to "immediate jeopardy to health and safety" to be consistent with Texas Department of Human Services definition in Title 40, Texas Administrative Code, sec.19.2203 (b)(1)(A) or (B). RESPONSE: The department agrees and has clarified the definition to be consistent with sec. 19.2203. COMMENT: sec.145.11. Criteria in sec.145.11 and related requirements in sec.sec.145.12-145.22 will cause increase in department staff to handle paperwork and approvals for license issuances. The department cannot be in a position of having undue delays in processing license issuances, renewals, or changes of ownership. RESPONSE: The department's response is that the program is prepared to handle increased workload; however, the department has clarified the sections and has deleted the requirements concerning financial disclosure. COMMENT: sec.145.11(a). Define "governmental unit". RESPONSE: The department disagrees because "governmental unit" is already defined in sec.145.3. COMMENT: sec.145.11(c)(1). Change the definition of "controlling interest." RESPONSE: The department has changed "controlling interest" to "disclosable interest" to correspond to the changes in definitions in sec.145.3. COMMENT: sec.145.11 (c)(2). Delete the provision concerning financial disclosure. RESPONSE: The department has deleted this provision to correspond to the deletion of all of sec.145.20 concerning financial disclosure. COMMENT: sec.145.11(c)(3). Define "no evidence of inability to comply". RESPONSE: The department has decided to delete this provision because it is inappropriate. COMMENT: sec.145.11(c)(7). Rule requires information which is difficult to obtain or not available. RESPONSE: The department's response is that it has decided to delete this provision. COMMENT: sec.145.11(e). Is the department going to change the 12 month time period for licenses, since this time period now conflicts with the Health Care Financing Agency's (HCFA) recent decision to delete time-limited agreements? RESPONSE: The department disagrees because the 12-month licensing period is a state law requirement, while the HCFA ruling is a federal requirement. COMMENT: sec.145.12. Add a paragraph to read, "Change of Administrator or Director. A facility that hires new administrator or director shall submit to TDH a completed application and administrative fee of $20 no later than 30th day after date on which change became effective." RESPONSE: TDH disagrees; however, there is appropriate language concerning this requirement in sec.145.13(a)(3). COMMENT: sec.145.12. This rule will give the local health authority the right to use any building code. The use of different building codes at the local level will produce confusing and inconsistent building requirements across the state. Also, the local health authority can mandate building requirements without being responsible for fiscal ramifications to Medicaid program. Conversely, Medicaid does not base reimbursement rates on what the local health authority requires. Facilities are caught in middle. RESPONSE: The department's response is that it has no jurisdiction over local codes, ordinances, or regulations. Accordingly, no change has been made. COMMENT: sec.145.12(1). Replace term "dated notice" with word "letter" because "letter" is more appropriate. RESPONSE: The department disagrees but has clarified the term to read "dated written notice." COMMENT: sec.145.12(1)(3) and (4). Paragraphs (1), (3) and (4) should have sentence at end stating, "The department will approve the application only if the facility is found to be in compliance with the standards in this chapter." RESPONSE: The department disagrees because such language would be redundant. COMMENT: sec.145.12(4). This rule conflicts with HCFA's recent ruling on time limited agreements. RESPONSE: The department disagrees for same reason as expressed in previous response to comment on sec.145.11(e). COMMENT: sec.145.12(5). Reference paragraph (5) in sec.145.19, relating to Fees. RESPONSE: The department disagrees but believes the reverse is appropriate by referencing sec.145.19 in sec.145.12(5). COMMENT: sec.145.13. The department should look at history of specific facility at time of license renewal, and look at history of company when company is planning to operate additional facilities. RESPONSE: The department disagrees with the comment because company history should be reviewed for new or renewal applications. COMMENT: sec.145.13. The department should change disclosure requirements to comply with HCFA's recent decision to delete time-limited agreements. RESPONSE: The department disagrees for the previous reasons stated in the responses to comments on sec.sec.145.11(e) and 145.12(4). COMMENT: sec.145. 13(c)(5). Delete requirement because too much government interference into facility affairs, not feasible to know extent of financing ahead of time, and no satisfactory evidence that facility can operate for 30 days. RESPONSE: The department agrees and has deleted the provision. COMMENT: sec.145.13(c)-(e). Information required on facilities serving persons with mental retardation or related conditions (ICF/MR) will be difficult to obtain or is unavailable. RESPONSE: The department believes that owner is able to provide information however, the department has deleted the department approval requirement and the financial disclosure provision, and has generally modified subsection (c). COMMENT: sec.145.13(d). Clarify if rule requires information for the owning company or the individual facility making application. RESPONSE: The department disagrees because the rule clearly refers to all entities listed in subsection (d). COMMENT: sec.145.13(d). Add provision for input on history by state ombudsman in form of the department sending copy of license application to ombudsman. RESPONSE: The department disagrees because this procedure can be handled by an inter- agency agreement. COMMENT: sec.145.13(d). Disclosure requirements go back 5 years in contrast to 2 years in sec.145.17(e)(1)-(2). Requirements should be the same for each rule. RESPONSE: The department agrees and has made the change. The department also has replaced the term "controlling person" with "disclosable interest". COMMENT: sec.145.13(d). Disclosure requirements should apply only to corporations and not to individual managers. RESPONSE: The department disagrees because it believes that information about both entities is relevant. COMMENT: sec.145.13(d). Clarify provisions about what constitutes federal or state Medicaid or Medicare sanction(s) or penalties for ICF/MR facilities, how information is be used, and whether survey results are public information. RESPONSE: The department disagrees that sanctions and penalties need to be clarified. Also, survey results are public information to extent authorized by law. COMMENT: sec.145.13(d)-(e). Should this information be submitted to the department with application and $20 fee when there is change in administrator in a nursing facility, maternity facility, or ICF/MR facility? RESPONSE: The department's position is that this is not necessary. COMMENT: sec.145.13(e). Provision is confusing and it is unclear what information is being requested and for how far in the past. This information is adequately captured under other disclosure requirements. Information is duplicative, expensive, unnecessary restraint of trade, invasion of privacy, and causes delays. RESPONSE: The department's position is that this information is relevant and necessary but has generally modified subsection (e) and has deleted the provision on approval. COMMENT: sec.145.13(e)(5)-(6). Prior state approval is unfair trade restraint, no approval criteria is listed, and it will be impossible for businesses to privately negotiate with individuals or interested parties without negotiations becoming public record. RESPONSE: The department's response is that it has deleted all of the approval requirements in paragraphs (5) and (6) but has retained the provision on the management contract and management company. COMMENT: sec.145.13(e)(5). Add exemption from 5% requirement for non-profit boards, and require that changes in board members of non-profit entities should only have to be updated annually. RESPONSE: The department's response is that it has decided to delete all of paragraph (5) concerning the 5% requirement; however, in the adopted paragraph (5), the department is requiring a licensee to notify the department within 30 days of any change of the manager or management services. COMMENT/RESPONSE: sec.145.13(f). The department has modified the exemption provision by requiring disclosure relating to a facility manager. COMMENT: sec.145.16(a). This rule is an unfair restraint of trade. RESPONSE: The department disagrees because nontransferability is mandated under the Health and Safety Code, sec.242.033(c). COMMENT: sec.145.16(a). It is erroneous to require a facility to delay sale of facility for 60 days or more to permit the department to approve purchase; expeditious changes sometimes are necessary. Also, purchases are complex business transaction in which it is usually impossible to specify an exact date of transfer on ownership so far in advance. RESPONSE: The department agrees and has changed the 60 days to 30 days. Parties may proceed at their own risk. COMMENT: sec.145.17. Rule needs to be more specific as to when license will be denied, who will make such a decision, and what is the appeal process. RESPONSE: The department disagrees that the rules are not specific enough, "may" is appropriate instead of "shall", and the appeal process is covered in subsection (g). COMMENT: sec.145.17. Change title of section to read, "Criteria for Denying a License or Renewal as evidenced by:" RESPONSE: The department disagrees because title change would not clarify language. COMMENT: sec.145.17. If license is not renewed, does the department have contingency plan for closing facility and relocating residents? A possible purchaser will have to comply with sec.145.11 on department approval of ownership change. Accordingly, there could be period of time when no license exists. What is the facility status in this time? If there is no purchase, who would oversee closure and when would it be done? RESPONSE: The department believes that no change in the rule is necessary because state law adequately covers closure of a facility. COMMENT: sec.145.17. Alternatives exist to denying a license or renewal, as follows: transfer residents that need it and monitor care of remaining and new residents; set limits on new admissions; and state establishment of pool of qualified administrators, nurses, etc., to contract with provider to operate or consult on problem facility. This alternative has to consider limited financial resources of facility. RESPONSE: The department believes that state law on trusteeship covers this. If funds are not available from facility, trust fund monies as authorized by state law could be used. COMMENT: sec.145.17. Entire section is confusing and needs to be clarified because rule: jumps back and forth between "may" and "shall"; avoids real core issue, i.e., considering patterns of operational history to determine whether to issue license or renewal; does not distinguish between history of operator and history of facility (former is relevant when company wants to operate additional facilities; latter is relevant at license renewal time); and is vague about process by which the department makes such decisions (who makes decision and on what criteria?). RESPONSE: The department believes there is a clear distinction in seriousness of circumstances to justify the use of "may" and "shall"; however, the department has edited and rearranged the provisions in the section for clarity. COMMENT: sec.145.17(b). Insert word "knowingly" in (b)(1)&(4) to distinguish honest error from deliberate fraud; and more specificity needed in (b)(5) regarding type of fraud (i.e., conviction of tax evasion or conviction for misappropriation of public funds). RESPONSE: The department agrees with the first comment and has added "knowingly" but disagrees with second comment because such change is not necessary. COMMENT: sec.145.17(c). This rule states that an applicant may not get license if applicant fails to disclose required information, and part of the required information is in sec.145.13(c)(5) concerning "sufficient financial resources". This term needs to be defined. RESPONSE: The department's response is that it has deleted the financial assurance provisions of sec.145.13(c)(5) and sec.145.22. COMMENT: sec.145.17(d)(3). Since administrative penalty appeal may not be resolved within 60 days, amend rule to require payment of penalty within 60 days of the date on which appeal has been exhausted. RESPONSE: The department disagrees because the appeal process is set out in state law. COMMENT: sec.145.17(e). Add word "significant" before word "evidence". RESPONSE: The department disagrees because addition would not clarify language. COMMENT: sec.145.17(e)(1). "New facility" is unclear in (e)(1), so, delete term and replace with "any additional facilities beyond the ones currently licensed"; and "court injunction" in (e)(1)(C) could include temporary injunction, so modify term to read, "Permanent court injunctions". RESPONSE: The department disagrees with both comments because the rules already clarify "new facility" and "court injunction" suffices. COMMENT: sec.145.17(e)(2)(G). It's unfair to deny license for unresolved audit exception during preceding two years because exceptions often take several years to resolve. Is "unresolved final" inconsistent? RESPONSE: The department believes that rule should remain as written but has deleted the word "final" from adopted sec. 145.17(a)(5)(G). COMMENT: sec.145.17(e)(2)(D)-(G). Delete subparagraphs (D)-(G) because they do not have direct bearing on whether the operator is providing acceptable care. RESPONSE: The department disagrees because actions in (D)-(G) do have bearing on resident care. COMMENT: sec.145.17(e)(3). Facilities are very concerned about cases in which they honestly disagree with the surveyor about a proposed decertification action. Example: Surveyor recommends decertification. Facility disagrees and appeals. Before appeal is heard, department makes return visit and clears deficiency. Yet, facility record will show that it was recommended for decertification. Suggestion: add sentence to read, "Department will consider pending appeal by applicant, license holder, or manager of surveyor/investigator finding of non-compliance with standards; this includes pending appeals of felony criminal convictions". RESPONSE: The department disagrees because recommended decertification is not a sanction or penalty. COMMENT: sec.145.17(f). Rules may conflict with efforts by Department of Mental Health and Mental Retardation to downsize larger facilities which may allow for downsizing without using beds allocated under the bed plan. RESPONSE: The department disagrees because it does not believe evidence exists to support the assertion of possible conflict. COMMENT: sec.145.18(a). Add paragraph (3) to read, "Change of Administrator or Facility Director. New administrator or facility director shall submit application and $20 fee to the department." RESPONSE: The department agrees and has made the change. COMMENT: sec.145.18(b)(1)-(2). Include more justification and specifics regarding trust fund fees for ICF\MR facilities. RESPONSE: The department disagrees because it believes that rule is adequate and reasonable. COMMENT: sec.145.22. Numerous commenters expressed concern about this section and recommended its deletion, for the following reasons: it will be too costly to facilities; the department may not have legal authority to deny license based on financial assessment; the department may not have resources to assess a facility's ability based on financial assessment; the department should not even play that role because the department can take action under other parts of rules if it believes residents are in danger because insufficient money is being spent on them; the rule discriminates against small providers; facilities don't generally use audited financial statements; a new applicant, with no prior experience or history, should only have to provide a pro forma; an existing provider should be assessed only on track record of providing care; new ICF\MR providers will be unable to provide this document. Audited financial statements do not necessarily ensure financial solvency; not clear how much financial security is enough; and the net worth of an owner does not matter if the owner decides not to provide necessary operating capital. RESPONSE: The department's response is that the section is inappropriate and has withdrawn it in its entirety. The department also has deleted related provisions in sec.sec.145.11(c)(2) and 145.13(c)(5). COMMENT: sec.145.41(b). Include a statement regarding male aides taking care of female residents. RESPONSE: The department disagrees because it is inappropriate to include this provision in rules. Resident right provisions are specific enough. COMMENT: sec.145.41(b). Include improvements in the use of restraints. RESPONSE: The department disagrees because it is not necessary to address this comment in rules. COMMENT: sec.145.41(b)(3)(E)(i). Rule conflicts with federal regulations which, as regards medical records, exclude weekends and holidays from 24-hour provision. The department should follow federal rule which is more fair, especially in cases where old clinical records may be stored off-site. RESPONSE: The department agrees and has made the change. COMMENT: sec.145.41(b)(3)(J)(iv). Add provision that resident be notified about any decision to transfer or discharge the resident. RESPONSE: The department agrees and has added the provision. COMMENT: sec.145.41(b)(4)(B). Do not require private pay providers to manage a resident's funds. RESPONSE: The department agrees and has changed "must" to "may". COMMENT: sec.145.41(b)(5). Retain provision in rules regarding freedom of choice for pharmacy series. RESPONSE: The department agrees and has made the change by adding new subparagraph (c). The department has made a corresponding change in sec.145. 41(e) by adding new paragraph (3). COMMENT: sec.145.41(b)(6)(D)(v). The two references to TDHS should be to the department. RESPONSE: The department agrees and has changed the references. COMMENT: sec.145.41(e)(1)(B)(i). References to the HCFA Resident Assessment Instrument are inappropriate because it is a federal form and should not be used to assess residents for state licensing purposes. RESPONSE: The department disagrees because it has authority to specify forms to be used. COMMENT: sec.145.41(e)(1)(B)(iii). The requirement for immediate implementation of the use of the Comprehensive Assessment (Resident Assessment Instrument) for current nursing facility residents would create an undue hardship. RESPONSE: The department agrees and has clarified the language. COMMENT: sec.145.41(g). Include more education and more pay for those providing direct care services to residents. RESPONSE: The department disagrees because rules should not address these issues. COMMENT: sec.145.41(g). It is appropriate to require 24-hour nurse coverage and RN coverage 8 hours a day, 5 days a week, and that director of nursing be a RN; however, 7 day RN coverage is inappropriate because of RN shortage and would produce less benefit for patient care. RESPONSE: The department disagrees because it believes rules are reasonable. COMMENT: sec.145.41(g). Add "such as" at end of (1)(C)(v) and include list of qualified personnel; modify (1)(D)(i)(II) to be consistent with Omnibus Budget Reconciliation Act which allows waiver for 24-hour licensed nurse "and/or" seven day a week RN; and delete (1)(D)(iii) as the department does not have authority to regulate Medicaid or private pay charges. RESPONSE: The department disagrees with first comment because it is not necessary to specify list in rules, but agrees with last two comments and has made appropriate changes. COMMENT: sec.145.41(g). Give facilities phase-in time of two years to increase staffing to comply with new staffing requirements. RESPONSE: The department disagrees because this provision would be inappropriate. COMMENT: sec.145.41(g)(1)(F). What requirements are being referenced? This should follow OBRA requirements for granting waiver. RESPONSE: The department position is that the requirements are the ones referenced in the section. COMMENT: sec.145.41(g)(2)(B). There should be one nursing assistant for each six residents. RESPONSE: The department disagrees because staffing needs vary with condition and needs of residents. COMMENT: sec.145.41(g)(2)(E). How will this be determined? Include wording that facility must provide adequate staff to meet resident needs. RESPONSE: The department's response is that it makes the determination and the appropriate wording on staff already exists in the rule. COMMENT: sec.145.41(g)(2)(M). Add provision concerning licensed nurses entering or approving and signing nurses notes at least monthly. RESPONSE: The department agrees and has added the provision. COMMENT: sec.145.41(g)(3). This provision adopts sec.19.804 of the combined standards, but some parts of the standards should be deleted or modified as follows: delete sec.19.804(7)(A) references to "Medicaid" and "recipient"; change the word "rehabilitative" to "restorative" because rehabilitation is terminology of another profession and sec.19.1101 concerns rehabilitation; and in sec.19.810(b), "the authorizing physician" should be "an authorizing physician". RESPONSE: The department does not believe that it is necessary to change sec.145.14(g)(3). COMMENT: sec.145.41(h). At every meal the administrator and dietitian should sit at a prominent place where they can be seen and they should eat each meal the residents eat. RESPONSE: The department disagrees because this requirement would be unreasonable. COMMENT: sec.145.41(i)(2)(A). 60-day requirement may be cost burden to some private pay residents. Change rule to say that orders shall be reviewed as necessary. RESPONSE: The department disagrees because it considers the 60-day requirement to be reasonable. COMMENT: sec.145.41(l)(2). In (2)(A), do not allow administrator to abdicate responsibility of pharmacy services. Change rule to say that facility shall provide pharmaceutical services to meet resident needs. In (2)(E), change words "keep at" to "provide to" because consultant pharmacist should not be required to keep records at facility. RESPONSE: The department disagrees with both comments because administrator is not abdicating responsibility, and a record should be kept at facility. COMMENT: sec.145.41(l). Concerning the reference to TDHS sec.19.1301, change the requirements for licensed only facilities to read, "The facility shall assist the resident in obtaining routine drugs and shall assist the resident in obtaining routine drugs and biologicals and make readily available emergency drugs. Also, retain the provision in the existing rules on freedom of choice pharmacy services. RESPONSE: The department agrees with both comments and has clarified the requirements by deleting the reference to sec.19.1301 and replacing it with specific language on drugs in new paragraph (2). COMMENT: sec.145.41(n). Add provisions for a treatment or examination room. RESPONSE: The department disagrees that these changes are necessary. COMMENT: sec.145.41(o). Combine (3)(B) and (C) since they duplicate each other; change (3)(C)(vi) to require facility to notify the department if the facility is without administrator for 30 days; and add to (4)(D) a provision about the current care plan. RESPONSE: The department agrees with first comment, disagrees with second comment because the provision is unnecessary; and agrees with last comment. COMMENT: sec.145.41(o). Delete (4)(G)(i)(III) as it duplicates (II) and delete requirement in (9)(D)(i)(III) as regards reporting of training coordinator's name. RESPONSE: The department disagrees with first comment because there is no duplication, but agrees with second comment and has made the change. . COMMENT: sec.145.41(o)(7)(A). Change "medical record" to "clinical record" because more appropriate. RESPONSE: The department agrees and has made the change. COMMENT: sec.145.41(b)(2),. Concerning the reference to TDHS sec.19.202, delete phrase "source of payment" in paragraph (2). RESPONSE: The department disagrees because this is a legal requirement. COMMENT: sec.145.41(b)(9). Concerning the reference to TDHS sec.19.210, retain provision concerning residents having right to work in facility. RESPONSE: The department agrees and has made the change. COMMENT: sec.145.41(b)(6)(D)(iv). Concerning the reference to TDHS sec.19.212, do not delete this provision in its entirety. RESPONSE: The department agrees and has made appropriate changes. The department has clarified the section further by adding "any representative of the department or any other agency with authority". COMMENT: sec.145.41. Concerning the reference to TDHS sec.19.214, retain the provisions concerning the resident right to have personal property. RESPONSE: The department agrees and has retained this provision in adopted sec.145.41(b)(14). COMMENT: sec.145.41. Concerning the references to TDHS sec.sec.19.215, 19.218, and 19.219, retain these provisions. RESPONSE: The department agrees and has retained the provisions in adopted sec.145.41(b)(15)-(17). COMMENT: sec.145.41. Concerning the reference to TDHS sec.19.1201, retain the provision that the facility must assist residents in obtaining routine and 24- hour emergency dental care. RESPONSE: The department agrees and has retained the provision in adopted sec.145.41(k)(1)(A). COMMENT: sec.145.41. Concerning the reference to sec.19.1301(1), add a provision about the use of unlicensed personnel such as nursing or medication aide students. RESPONSE: The department agrees and has added an appropriate provision in adopted sec.145.41(l)(2)(A). COMMENT: sec.145.42(a). Purpose cannot be accomplished because cost would be prohibitive and force a number of facilities to close their doors. Penalties were never intended to apply to ICF/MR facilities because of inequity of costs on large and small facilities, ICF/MRs do not have financial resource to pay such penalties, and exemption of state facilities is unfair. RESPONSE: The department response is that it is going to repropose the penalty provisions with changes. COMMENT: sec.145.42(d). Clarify "new provider", and in (d)(1), change term "health survey" to "life safety code survey" for clarity. RESPONSE: The department agrees and has made the changes. COMMENT: sec.145.42(d)(3). Do not require training schedule to be on a monthly basis. RESPONSE: The department agrees and has made the change. COMMENT: sec.145.42(e)(3). Clarify "physical restraints" to distinguish them from chemical, mechanical, or manual restraints. RESPONSE: The department agrees and has clarified the term. COMMENT: sec.145.42(e)(4)(C). New requirement for automatic stop orders is inappropriate return to medical model for ICF/MR facilities. Professional staff properly monitoring physician orders should suffice. RESPONSE: The department disagrees because it considers the requirement to be appropriate. COMMENT: sec.145.42(e)(8)(A)-(D). A number of commenters expressed concerns about this rule, as follows: requirements will reduce drowning but is too stringent and restricts residents' ability to be near water; staff to client ratios unclear for in-water activities as opposed to at-site activities; provider will have to employ a licensed swimming instructor to accompany residents on all "outings"; providers will discontinue "outings"; requiring policies and procedures for all sites removes flexibility; assessment of each aquatic environment and review of each client's medical condition as regards risk of drowning in each specific environment will be erroneous and costly; and proper monitoring and safety measures should suffice. RESPONSE: The department agrees and has made appropriate changes. COMMENT: sec.145.43. The Health and Human Services Commission has requested that the department modify this rule. In addition, a number of commenters stated that maternity facility regulation is necessary but they objected to the new standards for the following reasons: rules are too broad in scope; more time is needed for review and comment and input by affected providers, residents, and families; will be undue burden on non-profit facilities; will increase cost of maternity care and adoptions; duplication of services for maternity homes which are associated with adoption agencies licensed as child placing agencies by Department of Protective and Regulatory Services; maternity facilities provide residential and not health services to pregnant women; pregnancy is not illness or disability; medical services are provided away from facility, so medical model is inappropriate; strict interpretation of rules will cover foster homes, potential adoptive parent homes, shelters for homeless, battered women's shelters, and many crisis pregnancy services operated by religious groups. RESPONSE: The department, in response, agrees that the Health and Safety Code, Chapter 242, requirements are not appropriate for maternity homes; residents are well and alert and need no personal services; medical services are not provided; and this is not a long term care situation because residents are usually in their third trimester. Accordingly, the department has modified sec.145.43 to reflect the standards as written in the existing rules. COMMENT: sec.145.61. Sections 145.61-145.73 seem to mean that in the event that new construction, even of a single room, increases the overall size of a building and exceeds $25,000, the entire facility and not just newly constructed single room will be required to meet most recent Life Safety Code. If this is not so, clarify rule to state that it applies only to newly constructed part of building. RESPONSE: The department's position is that construction of single room does not mean that entire facility has to meet code, and the rules as written convey that intent. Accordingly, no change is necessary. COMMENT: sec.145.61(a). Clarify the references. RESPONSE: The department's response is the references do not need to be clarified because they comply with state law. COMMENT: sec.145.61(b). Clarify the language by adding to end of sentence the provision, "and the requirement of sec.145.41(n) of this chapter". RESPONSE: The department agrees and has added the language. COMMENT: sec.145.61(e). An engineer and architect are not necessary. A nursing facility and not a commercial building is being built. Standard building codes will protect the integrity of the structure. RESPONSE: The department disagrees because the rule complies with state law. COMMENT: sec.145.63(g). Is the Department of Licensing and Regulation responsible for enforcing American with Disabilities Act requirements instead of State Board of Purchasing and General Services Commission? RESPONSE: The department's response is that it is responsible for enforcing state law and the Justice Department is responsible for ADA enforcement. COMMENT: sec.145.64. Change reference in introductory paragraph to sec.145.141 and define "individuals" in (3)(A) and (B) because they could be residents, staff and/or visitors. RESPONSE: The department disagrees because the reference is correct and it is not necessary to define individuals. COMMENT: sec.145.65(10). Language on interior finishes is misleading and needs to be clarified. RESPONSE: The department agrees and has changed the language in accordance with commenter's recommendations. COMMENT: sec.145.67(m). Describe "NFPA Standard 10" more clearly as "NFPA 10 - Standard for Portable Fire Extinguishers 1990 Edition"; and limit top of extinguisher to 48 inches in (m)(4) to agree with ADA dimensions. RESPONSE: The department disagrees because rule complies with state law and ADA does not mention mounting height of extinguishers. COMMENT: sec.145.68(b). NFPA 99 should be NFPA 56C. RESPONSE: The department disagrees because NFPA 99 is correct. COMMENT: sec.145.69(f)-(g). In absence of local building code, allow any of three model codes (Standard, Uniform, National) but require consistency in the series. RESPONSE: The department's response is that it believes the rule, as written, allows any of three model codes to be used. COMMENT: sec.145.70(1)(F). The parenthetical statement at the end of the first sentence should read, "(For purposes of conforming to licensure requirements, an operating system providing water from 100 degrees to 115 degrees Fahrenheit will be acceptable)". RESPONSE: The department agrees and has made the change. COMMENT: sec.145.70(1)(G), replace "handicapped standards" with more appropriate "persons with disabilities". Also, in (2)(A), replace "Heating, Ventilating, and Air Conditioning Guide of ASHRAE" with more appropriate "NFPA 90A and NFPA 90B"; in (4)(A)(i), replace "Texas Department of Insurance" with more appropriate "Commission on Fire Protection", or delete provision entirely because it is required by NFPA 13 which is cited in (4)(A). RESPONSE: The department agrees with comment on (1)(G), disagrees on (2)(A) because both documents are required, and disagrees on (4)(A)(i) because the Commission on Fire Protection is inappropriate. COMMENT: sec.145.71(d)(2)(C). Clarify language by modifying it to read, "Recommended minimum lighting levels can be found in The Illuminating Engineering Society (IES) Lighting Handbook, latest edition, and in sec.145. 41(n) in this chapter". RESPONSE: The department agrees and made the change but also has deleted "recommended" because lighting levels in handbook are recommended levels. COMMENT: sec.145.71(d)(2)(C). Replace "recommended" with "required" because there should be a minimum lighting level, and replace "latest edition" with actual year for specificity. RESPONSE: The department disagrees because lighting levels in handbook are recommended, and the reference to the latest edition allows the department to have flexibility. COMMENT: sec.145.71(d)(2)(C). Lighting handbook reference not adequate because handbook contains different categories of recommended lighting levels. Rule should include guideline table from 1992 Federal Minimum Construction Guidelines which references handbook but with greater specificity. RESPONSE: The department disagrees because recommended levels do not need to be restricted by table. COMMENT: sec.145.73. In introductory statement, clarify language by replacing "Americans with Disabilities Act" with "ANSI A17.1". RESPONSE: The department agrees and has made the change. COMMENT: sec.145.91. Several changes are needed for clarification: rewrite (b)(1)-(2) rename NFPA 101 as Life Safety Code; rename NFPA 101 Chapter 12 as Life Safety Code New Health Care Occupancies Chapter; rename NFPA 101 Chapter 21 as Life Safety Code Residential Board and Care Occupancies Chapter; rename NFPA 101, 1988 Edition as Life Safety Code as defined in sec.145.3, Definitions; and rename NFPA 70 National Electrical Code as National Electrical Code as defined in sec.145.3, Definitions. RESPONSE: The department disagrees because NFPA references follow requirements in state law and federal standards. COMMENT: sec.145.91. Combine this section with sec.145.92 since both deal with general information and the combination will clarify the rules. RESPONSE: The department agrees and has combined the two sections into the final sec.145.92. Accordingly, the department has withdrawn the proposed adoption of sec.145.91 since it is no longer necessary to adopt the section. COMMENT: sec.145.92(d)(2). Delete this requirement because it limits facility to cheaper and uglier surface because carpets can be abrasive and tile can be slippery. RESPONSE: The department disagrees because rule is a reasonable one and is consistent with federal standards in this area. COMMENT: sec.145.92(d)(4). This is an unacceptable requirement because the only ceilings that are cleanable are flat and painted. Existing blown acoustics would have to be removed. RESPONSE: The department disagrees because this has not been a problem and acoustics can be cleaned. COMMENT: sec.145.92(g). Raise maximum hot water temperature from 110 degrees to 125 degrees Fahrenheit, for several reasons: administrative penalty threshold level in schedule (Q.1) is 125 degrees; 110 degrees is not practical standard for hot water; soap clogs dishwater at 110 degrees; temperature of 110 degrees does not burn skin; and maternity facilities may set water temperature at 125 degrees. RESPONSE: The department disagrees because it considers the requirements to be reasonable and consistent with federal standards. Also, the department is reproposing the administrative penalty schedule. COMMENT: sec.145.92(k). The rule is acceptable but it should also include guideline table from 1992 Federal Minimum Construction Guideline. RESPONSE: The department disagrees because it does not believe it is necessary to include guideline table. COMMENT: sec.145.96(b). Revise (b) by requiring door release and air handler shut down just as in large facilities because smoke in small facility is just as deadly as in large facility. RESPONSE: The department disagrees because revision is not necessary and could make facilities too institutional. COMMENT: sec.145.99(b). Several changes are needed: revise (b)(1)(F)(i) to minimize smoke development because fire sprinkler protects property but not life; revise (b)(1)(G)(i) to require two remotely located primary means of egress from building because this is standard in all three model building codes; and replace confusing (b)(1)(G)(ii) entirely with standard requirements in NFPA 101-1988. RESPONSE: The department disagrees because facilities have smoke detection systems and some facilities use Fire Safety Evaluation Systems (FSES). COMMENT: sec.145.99(b)(2). Change second sentence covering living room space to read, "Living space can include one or more rooms or areas provided that the first such area is at least 80 square feet each". RESPONSE: The department agrees and has made the change. COMMENT: sec.145.105(b). Define fire drill in (b)(1) because (b)(4)(A) indicates that a fire drill is not always a rehearsal. RESPONSE: The department disagrees because it considers the rule to be reasonable and sufficient as written. COMMENT: sec.145.131. Make several changes: define Type A and Type B facilities described in (4)(A)-(D); redefine model building code references in (4) and (5) to include standard code by SBCCI because more Texas cities are standard code cities than uniform code cities; and rewrite construction standards for maternity facilities using NFPA 101-1988 and construction standards for ICF/MR facilities. RESPONSE: The department disagrees because rule complies with state and local law. sec.145.131(b)(4). Use the 1985 edition of the Life Safety Code since the Health and Safety Code, sec.242.039, requires the 1985 edition. The department agrees and had made the changes. COMMENT: sec.145.131(b)(5)(A)-(B). Replace the 1988 editions of the building and plumbing codes with the 1991 editions since they are the latest editions. RESPONSE: The department disagrees since it has no jurisdiction over local ordinances. COMMENT: sec.145.131(b)(6). Clarify "existing building". RESPONSE: The department agrees and has clarified the term. COMMENT: sec.145.132. Make several changes: revise (f)(4) by replacing "handicap standards" with more appropriate "disability standards"; revise (i) (3) by changing mounting heights for extinguishers from 5 feet to 4 feet from floor to comply with ADA dimensions; revise (i)(4) replacing "NFPA 10A" with more appropriate "NFPA 10-Standard for Portable Fire Extinguishers"; and revise (k)(1)(E)(ii) by replacing "bedroom size" with "bedroom floor area" to better describe relation between floor and window dimensions (See Standard Building Code for SBCCI provisions). RESPONSE: The department agrees with the first comment and has made the change; disagrees with second comment because ADA does not have this requirement; and agrees with remaining comments and has made the changes. COMMENT: sec.145.132(i). Add paragraph (6) to cover storage and waste containers. These provisions are in existing rules and need to be retained. RESPONSE: The department agrees and has made the addition. COMMENT: sec.145.141(d)(9)(B). In (9)(B), define staff communication system for ICF/MR facility because a staff communication system is inappropriate in ICF/MR facilities because they are not large enough to require such a system. In many instances, there is only one person on duty. RESPONSE: The department disagrees because the system is not a requirement, just information. COMMENT: sec.145.142(a)(3)-(b)(1). The three-week notice is most unreasonable in that it would cost the facility untold amounts in interim financing. The department either should use city inspectors reports or have the facility hire a local engineer to complete the standard inspection form, but don't make the facility wait and pay. RESPONSE: The department disagrees because it considers the rule to be reasonable and necessary. COMMENT: sec.145.142(d). Delete rule because no need for feasibility inspection exists. Submission of plans for review, including fees, is already required by sec.145.12(5) and sec.145.19. RESPONSE: The department disagrees because it believes that a need for such inspections does exist. COMMENT: sec.145.161(a). Expand the rule to apply to other types of employees such as the Texas Rehabilitation Commission, the Texas Commission for the Blind, the Veteran's Administration, etc. RESPONSE: The department disagrees because the issue already is addressed in sec.145.162 and Health and Safety Code, sec.242.154(f). COMMENT: sec.145.161(a). Expand rule to address the high school diploma issue, including out-of-country high school diplomas. RESPONSE: The department doesn't believe this is necessary because sec.145. 164(B)(4) already covers high school diplomas and GED. COMMENT: sec.145.168(a)(1)-(3). Make initial and renewal permits valid until the applicant's birthday. RESPONSE: The department disagrees but has clarified the rules to comply with state law. COMMENT: sec.145.170(b)(2). Increase clinical experience hours in basic training program from 10 hours to at least 30 hours. RESPONSE: The department disagrees because it believes that no basis for an increase exists at this time. COMMENT: sec.145.191(f)(2). Expand list of persons who should have opportunity to participate in inspections. RESPONSE: The department disagrees because it believes that the list is adequate. COMMENT: sec.145.192. Clarify rule by specifying that authority to make final determinations lies with Chief, Bureau of Long Term Care. RESPONSE: The department disagrees because this is an internal procedure and does not need to be in rules. COMMENT: sec.145.192(c). Change rule to require department to give facility written notice of additional violation within 10 working days of exit conference and for facility to reply within 10 working days of receipt before additional violation is added. RESPONSE: The department agrees and has made the change. COMMENT: sec.145.192(c). The current rules give facilities 10 days to return the deficiency sheet(s) with the plan(s) of correction for each deficiency to the department. This rule should be retained. RESPONSE: The department agrees and has retained the rule. COMMENT: sec.145.211. Clarify title of Subchapter G which covers sec.sec.145. 211-145.217 by changing it to read, "Abuse, Neglect, and Exploitation; Complaint and Incident Reports and Investigations". RESPONSE: The department agrees and has made the change. COMMENT: sec.145.215(b). Replace "reported cases" and "reports" with "complaints"for clarity. RESPONSE: The department agrees and has made the change. COMMENT: sec.145.215(d). Insert "Complaint" before "Investigations" in first sentence for clarity. RESPONSE: The department agrees and has made the change. COMMENT: sec.145.215(f). Clarify rule by changing it to read, "If the initial phase of an incident or complaint investigation concludes that no abuse or neglect adversely affecting the physical or mental health or welfare of a resident has occurred, no further investigation will be undertaken". RESPONSE: The department agrees and has made the change. The department also has made related changes to (b) and (d). COMMENT: sec.145.215(g). Clarify first sentence by changing it to read, "In cases concluded to be abuse, neglect, or exploitation, the written report of the investigation, along with its recommendations, shall be submitted to the appropriate district attorney and law enforcement agency...request". RESPONSE: The department agrees and has made the change. COMMENT: sec.145.216(a). Clarify paragraphs (1)-(2) by deleting phrases "The department's" and "on cases concluded". RESPONSE: The department agrees and has made the changes. COMMENT: sec.145.217. The department has decided to delete the last two sentences of subsection (a) to have (a) follow more closely the requirements of the Health and Safety Code, and also to clarify sec.242.134. The department has also reworded (a) and combined (1) and (2) for clarity. COMMENT: sec.145.231. The rules are not uniform or consistent and they do not name the department operating unit that will administer the program. RESPONSE: The department disagrees as this is an internal administrative procedure which does not need to be included in the rules. COMMENT: sec.145.231. New rules fail to assure that punishment fits crime and that various existing enforcement options will be coordinated with the Department of Human Services and the Attorney General to avoid duplication of penalties. RESPONSE: The department disagrees because enforcement options presently are being coordinated with TDHS and AG. COMMENT: sec.145.231. Need equitable enforcement system to penalize substandard care and promote quality care. Proposed rules, however, establish system which could result in imposition of multiple penalties by department, AG, and TDHS, which could cripple a facility. Agencies should adopt mechanisms to provide for coordinated assessment of penalties to prevent simultaneous assessment. RESPONSE: The department agrees that penalty provisions need to be coordinated with other agencies. COMMENT: sec.145.231(a)(3). Clarify language about who sends notice letter, what is time frame, review panel, facility being notified at exit of action. RESPONSE: The department agrees that language requires clarification and has done appropriate editing in (3) and (1). COMMENT: sec.145.231(b). Rewrite (b) using federal survey procedure language. Proposed (b) indicates that a simple violation could invoke punitive action. Rule should comport with sec.145.231(a) which indicates that more than simple violation is necessary. RESPONSE: The department disagrees because it considers the rule to be fair and reasonable; however, the department has clarified (b) by changing "recommend" to "authorized". COMMENT: sec.145.232 and 145.233. Clarify "serious violation" to ensure due process and to remove ambiguity. There is too much latitude, which fosters inconsistent application of rule. RESPONSE: The department agrees that the term needs to be clarified in sec.145.233 concerning the more serious violation of revocation and has done so by adding new (b) on criteria for revocation. The department has also clarified sec.145.232 and sec.145.233 by changing "recommend" to "suspend" in sec.145.232, changing "recommend" to "revoke" in sec.145.233, and requiring notice to be sent by certified mail in sec.145.233. COMMENT: sec.145.232 and sec.145.233. Clarify rules about what happens if a facility appeals to court a department decision to suspend license. Is suspension in effect during appeal? What is status of facility during suspension? Will it have to close? Will it continue to receive medicaid funding? RESPONSE: The department disagrees that the rules need to address these issues. COMMENT: sec.145.234. Establish specific referral criteria to assure fair notice and due process. RESPONSE: The department disagrees because it considers the language to be sufficient. COMMENT: sec.145.235. Numerous commenters expressed objections and concerns over the administrative penalty provisions and schedule, as follows: monetary penalties do not achieve compliance; the department should emphasize alternatives such as state directed plans of correction; Health and Safety Code does authorize imposition of administrative penalties, but does not require that fines be routine method in all cases; penalty system is inappropriate for maternity facilities; present remedies are adequate for ICF/MR facilities; application of penalties to ICF/MR facilities will be excessively costly; penalties will decrease funds for resident care; small facilities will have to fold; large facilities will cut services to pay penalties; surveyors generally lack experience to use discretion that penalty schedule requires; surveyors are inconsistent in application of penalties; existing penalties and sanctions are adequate and not fully used; retain language in existing penalty rules on allowance of warnings, referencing licensing standards and waiver of administrative penalties when other penalties are imposed; state schools and MHMR facilities should not be exempt; too much discretion and inconsistency in survey process already; surveyors and government agencies should be fined when they are inconsistent and waste taxpayers dollars on hearings on inconsistencies; House Bill 7 reorganization is not final; the department will need more staff to implement system and to handle appeals; no proof that penalties are effective; questionable if Medicaid funds can be used to pay penalties; system based on fallacy that nursing facilities and ICF/MR facilities operate same; conditions warranting penalties include ones which are not part of ICF/MR standards and include others which contradict standards; pattern of violations necessary to warrant penalties is not defined; occurrence of the condition is not defined, put time limit on occurrences; pattern of violations must be established; list of conditions contradicts rule because it includes conditions which do not constitute health and safety hazards; needs to be easily understood by providers and surveyors; should address issue of bad actors leaving program; should consider positive effects on delivery of quality care of such current initiatives as application training for ICF/MR providers; should more clearly explain that penalties generally will be assessed only after a facility violates a standard repeatedly; rule should clearly describe, with examples, the situations in which a single violation justifies a penalty, i.e., when a consumer is in immediate danger of a health and safety risk; penalties should be based on number of beds in facility so that system will be fair to small and large providers; department should obtain an attorney general opinion on the applicability of the administrative penalties to ICF/MR Facilities; since group homes operated by TDMHMR will be exempt, this will create major problem in that there will be differing application of standards in different settings; "First occurrence" is not clearly defined (does first occurrence mean first offense or the first time the penalty is assessed?); it is not clear if there a time limit or do occurrences start over with a new owner; and a number of commenters had specific concerns and objections regarding the conditions and elements in the penalty schedule itself. RESPONSE: The department's response is that it has considered all of the comments, withdrawn the proposed rule, and has reproposed it with modifications in this issue of the Texas Register. COMMENT: sec.145.236(d). Who is responsible for performing responsibilities, especially after TDH has closed facility, who pays staff, and does the department have authority to close facility? RESPONSE: The department's response is that these responsibilities are specified in a court order. COMMENT: sec.145.236(d)(2)(D). Clarify language on orderly closure and relocation of residents as well as effective date of denial by modifying language to read, "If license renewal is denied and there is no qualified purchaser for facility, the department must develop plan for orderly closure and relocation of residents. RESPONSE: The department disagrees because this section applies to emergency closure only. COMMENT: sec.145.236(d)(2)(F)(iii). Delete last sentence as it is redundant. RESPONSE: The department agrees and has deleted the language. COMMENT: sec.145.237. In (b), if any ombudsman, advocate, resident, etc. can cause a hearing to be held, what protects the facility against libelous actions? In (d)(2), why do relatives of each resident need to be informed, even if they are not involved? In (f), why would facility's administrator or personnel be excluded from open hearing? RESPONSE: The department disagrees because the rule follows state law. COMMENT: 145.237(f). It is unreasonable to exclude facility personnel from a hearing that directly involves their welfare. RESPONSE: The department disagrees because rule follows state law. COMMENT: sec.145.238. Include time tables for hearings. RESPONSE: The department disagrees because it believes time tables to be inappropriate. COMMENT: sec.145.285. Clarify and strengthen plan of care provision by adding phrase to read, "and provisions of sec. 145.283 of this title (relating to Plan of Care). RESPONSE: The department agrees and has made the change. COMMENT: sec.145.285. Clarify "records or respite care services" in the areas of clinical records and resident assessment requirements. RESPONSE: The department agrees and has made appropriate changes. The following agencies, associations and organizations commented on proposed Chapter 145: Texas Health Care Association; Bell and Associates, Inc.; Texas Association of Private Residential Providers; Texas Association for Homes for the Aging; United Health, Inc.; Living Centers of America; Levelland Nursing Home of Lubbock; Exceptional Living, Inc.; Educare Community Living Corporation; Hilltop Village of Kerrville; Skyview Living Center of San Antonio; Texas Department of Aging; Texas Department of Human Services; Texas Hospital Association; Anderson, Goodman and Wade; Independent Living Centers; Trinity Terrace of Fort Worth; Mission Road Development Center of San Antonio; Community Living Concepts, Inc.; River Gardens of New Braunfels; Boles Homes, Inc.; Lee & Beulah Moore Children's Homes; Sherwood & Myrtie Foster's Home for Children; Christian Child Help Foundation; Texas Baptist Children's Home; University of Texas Medical School at Houston; Methodist Home of Waco; Methodist Mission Home of San Antonio; New Horizons of Goldwaithe; Texas Cradle Society; Bair Foundation; Texas Association of Licensed Children's Services; Lena Pope Home of Fort Worth; Saint Theresa's Home of Fort Worth; Blessed Trinity House; Settlement Home of Austin; Texas Council on Family Violence; Living Alternatives of Tyler; International Conference of Building Officials; Alvin Community College; Bitter Sweet Farms; Concept Six of Austin; ARC/Texas; Advocacy, Inc.; Community Residential Services Association of Texas; Volunteers of America; High Plains Health Facility of Wichita Falls; Agnes Dent Homes; Independent Horizons; Southern Concepts; Bridge, a Refuge for Woman; Burke Foundation; HEA Management Group, Inc.; Texas Council of Community Mental Health and Mental Retardation Centers, Inc.; and Midland Association of Retarded Citizens. The Honorable Judith Zaffirini, State Senator, District 21, The Senate of the State of Texas, commented on the proposal. In addition, numerous individuals commented on the proposed rules. The commenters ranged from those who opposed various sections and provisions in the proposal to those who supported various sections and provisions. Also, commenters expressed numerous concerns and made numerous suggestions for change throughout the proposed rules. 25 TAC sec.sec.145.1-145.3 The new sections are adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with the authority to adopt rules concerning nursing facilities and related institutions; and sec.12.001 of this title which provides the Board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. sec.145.2. Institutions Covered. (a) The provisions of this chapter apply to the following types of institutions: (1) a nursing facility; (2) a maternity facility; and (3) a facility serving persons with mental retardation or related conditions. (b) The term "nursing facility," when used in this chapter, means an establishment that provides food, shelter, and nursing care to four or more persons who are unrelated to the owner of the establishment and that provides minor treatment under the direction and supervision of a physician licensed by the Texas State Board of Medical Examiners, or other services that meet some need beyond the basic provision of food, shelter, or laundry. A nursing facility may be a building, which may consist of one or more floors or one or more units, or may be a distinct part of a hospital. (c) The term "maternity facility," when used in this chapter, means a place or establishment that receives, treats, or cares for, overnight or longer, within a period of 12 months, four or more pregnant women or women who, within two weeks before the date of the treatment or care, gave birth to a child, not including a woman who receives maternity care in the place or establishment that is the home of a relative of the woman related within the third degree of consanguinity or affinity. (d) The term "facility serving persons with mental retardation or related conditions," when used in this chapter, means an establishment that provides food, shelter, and services to four or more persons who are unrelated to the owner of the establishment and whose physical and mental condition requires institutional care; and that provides minor treatment under the direction and supervision of a physician licensed by the Texas State Board of Medical Examiners, or other services that meet some need beyond the basic provision of food, shelter, or laundry. (1) A person receiving services in a facility serving persons with mental retardation or related conditions must have a diagnosis of mental retardation or a related condition as defined under paragraph (2) of this subsection. Facilities serving persons with other developmental disabilities as a primary diagnosis do not fall under the scope of these standards. (2) The term "related condition" means a severe, chronic disability that meets all of the following conditions: (A) a condition attributable to: (i) cerebral palsy or epilepsy; or (ii) any other condition including autism, but excluding mental illness, found to be closely related to mental retardation because this condition results in impairment of general intellectual functioning or adaptive behavior similar to that of persons with mental retardation and requires treatment or services similar to those required for these persons; (B) a condition manifested before the person reaches age 22 years; (C) a condition likely to continue indefinitely; and (D) a condition that results in substantial functional limitations in three or more of the following areas of major life activity: (i) self-care; (ii) understanding and use of language; (iii) learning; (iv) mobility; (v) self-direction; and (vi) capacity for independent living. sec.145.3. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Individual subchapters may have definitions which are specific to the subchapter. Addition-The addition of floor space to an institution. Administrator-The administrator of an institution. Affiliate-With respect to a: (A) partnership, each partner thereof; (B) corporation, each officer, director, principal stockholder, and subsidiary; and each person with a disclosable interest (defined in the section); (C) natural person which includes each: (i) person's spouse; (ii) partnership and each partner thereof of which said person or any affiliate of said person is a partner; and (iii) corporation in which said person is an officer, director, principal stockholder, or person with a disclosable interest. Applicant-A person required to be licensed under Health and Safety Code, Chapter 242. APTRA-The Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a. Attendant personnel -All persons who are responsible for direct and non- nursing services to residents of an institution. (Nonattendant personnel are all persons who are not responsible for direct personal services to residents.) Attendant personnel come within the categories of: administration, dietitians, medical records, activities, housekeeping, laundry, and maintenance. Board-Texas Board of Health. Care and treatment -Services required to maximize resident independence, personal choice, participation, health, self-care, psychosocial functioning and provide reasonable safety, all consistent with the preferences of the resident. Controlled substance -A drug, substance, or immediate precursor as defined in the Texas Controlled Substance Act, Health and Safety Code, Chapter 481, as amended, and/or the Federal Controlled Substance Act of 1970, Public Law 91-513, as amended. Convalescent home -A nursing facility. Dangerous drug -Any drug as defined in the Texas Dangerous Drug Act, Health and Safety Code, Chapter 483. Department-Texas Department of Health. Drug (also referred to as medication)-A drug is: (A) any substance recognized as a drug in the official United States Pharmacopeia, official Homeopathic Pharmacopeia of the United States, or official National Formulary, or any supplement to any of them; (B) any substance intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man; (C) any substance (other than food) intended to affect the structure or any function of the human body; and (D) any substance intended for use as a component of any substance specified in subparagraphs (A) -(C) of this paragraph. It does not include devices or their components, parts, or accessories. Establishment-A place of business or a place where business is conducted which includes staff, fixtures, and property. Facility-A nursing facility, maternity facility, or a facility serving persons with mental retardation or related conditions licensed under this chapter as described in sec.145.2 of this title (relating to Institutions Covered). Facility serving persons with mental retardation or a related condition-A facility as described in sec.145.2 of this title (relating to Institutions Covered). Governmental unit -A state or a political subdivision of the state, including a county or municipality. Hearing-A contested case hearing held in accordance with the Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a, and the department's formal hearing procedures adopted in Chapter 1 of this title (relating to Board of Health). Incident-An unusual or abnormal event or occurrence in, at, or affecting the facility and/or the residents of the facility. Inspection-Any on-site visit to or survey of an institution by the Texas Department of Health for the purpose of inspection of care, licensing, monitoring, complaint investigation, architectural review, or similar purpose. Institution-An establishment as defined in the Health and Safety Code, sec.242.002, and includes a nursing facility, maternity facility, and a facility serving persons with mental retardation or a related condition, as these facilities are defined in sec.145.2 of this title (relating to Institutions Covered). Legal guardian -A person lawfully invested with power and duty to take care of another person and manage the property and rights of that person who is considered incapable of administering his or her own affairs. License-Approval from the Texas Department of Health to establish or operate an institution. Life Safety Code (also referred to as the Code or NFPA 101) -The Code for Safety to Life from Fire in Buildings and Structures, Standard 101, of the National Fire Protection Association (NFPA). Life safety features-Fire safety components required by the Life Safety Code such as building construction, fire alarm systems, smoke detection systems, interior finishes, sizes and thicknesses of doors, exits, emergency electrical systems, sprinkler systems, etc. Local authorities -A local health authority, fire marshal, building inspector, etc. who may be authorized by state law, county order, or municipal ordinance to perform certain inspections or certifications. Local health authority-The physician having local jurisdiction to administer state and local laws or ordinances relating to public health, as described in the Health & Safety Code, sec.sec.121.021 - 121. 025. Manager-A person having a contractual relationship to provide management services to a facility, but does not include a licensed nursing home administrator. 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 shall not include contracts solely for maintenance, laundry, or food services. Maternity facility -A facility as described in sec.145.2 of this title (Institutions Covered). Nursing care-Services provided by nursing personnel as prescribed by a physician, which services include, but are not limited to, promotion and maintenance of health; prevention of illness and disability; management of health care during acute and chronic phases of illness; guidance and counseling of individuals and families, and referral to physicians, other health care providers, and community resources when appropriate. Nursing facility -A facility as described in sec.145.2 of this title (Institutions Covered). Nursing home administrator-A person licensed by and in good standing with the Texas Board of Licensure for Nursing Home Administrators. The nursing home administrator is under the overall direction and control of and is responsible to the facility management and is responsible for planning, organizing, directing, and controlling the operation of a nursing facility, whether or not such individual has an ownership interest in such home and whether or not such functions are shared by one or more individuals. Nursing personnel -All persons responsible for giving nursing care to residents. Such personnel includes registered nurses, licensed vocational nurses, therapists, medication aides, nurses aides, and orderlies. Person-An individual, firm, partnership, corporation, association, or joint stock company, and includes a legal successor of those entities. Person with a disclosable interest-A person with a disclosable interest is any person who owns five percent interest in any corporation, partnership, or other business entity that is required to be licensed under Health and Safety Code, Chapter 242. 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. Remodeling-The construction, removal, or relocation of walls and partitions, or construction of foundations, floors, or ceiling-roof assemblies, including expanding of safety systems (i.e. sprinkler systems, fire alarm systems), that will change the existing plan and use areas of the facility. Renovation-The restoration to a former better state by cleaning, repairing, or rebuilding, e.g., routine maintenance, repairs, equipment replacement, painting. Resident-An individual, including a patient, who resides in an institution. Responsible party -An individual authorized by the resident to act for him or her as an official delegate or agent. Responsible party is usually a family member or relative, but may be a legal guardian or other individual. Standards-The minimum conditions, requirements and criteria established is this chapter with which an institution will have to comply with in order to be licensed under this chapter. Substandard resident care- (A) a violation of a requirement which immediately jeopardizes the health or safety of a resident; or (B) a violation or violations of one or more requirements which pose or did pose a health and/or safety hazard; or limits or limited the facility's capacity to render adequate care. Universal precautions -The use of barrier precautions by facility personnel to prevent direct contact with blood or other body fluids that are visibly contaminated with blood. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321479 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 834-6770 Subchapter B. Application Procedures 25 TAC sec.sec.145.11-145.21 The new sections are adopted under the Health and Safety Code, Chapter 242, which provides the Texas Board of Health (board) with the authority to adopt rules concerning nursing facilities and related institutions; and sec.12. 001, which provides the Board with authority to adopt rules to implement every duty imposed on the board, the department, and the commissioner of health. sec.145.11. Criteria for Licensing. (a) A person or governmental unit, acting jointly or severally, must be licensed by the Texas Department of Health (department) to establish, conduct, or maintain a facility in this state. (b) An applicant for a license must submit a complete application form and license fee to the department. (c) An applicant for a license must affirmatively show that: (1) the applicant, person with a disclosable interest, affiliate, and manager has had no conviction of a felony or crime involving moral turpitude in this state or any other state; (2) the facility meets the standards of the Life Safety Code; (3) the facility meets the construction standards in Subchapter D of this chapter (relating to Facility Construction); and (4) the facility meets the standards for operation based upon an on-site survey. (d) The applicant must provide all information requested on the application form and submit the appropriate fees as prerequisites for the department to conduct a feasibility inspection or plan review, as requested or required. (e) A license shall be issued to a facility which meets all requirements of this chapter and shall be valid for one year. Each license shall specify the maximum allowable number of residents to be cared for at any one time. No greater number of residents shall be kept at any one time than is authorized by the license. sec.145.12. Building Approval. All applications for license shall include written approval of the local fire authority having jurisdiction based on the facility and operation meeting local applicable fire ordinances; such approval shall be on forms or in a manner as determined by the Texas Department of Health (department). The local health authority may provide recommendations regarding licensure utilizing the following procedure and process. (1) New facility. The sponsor of a new facility under construction or a previously unlicensed facility will provide to the department a copy of a dated written notice to the local health authority that construction or modification has been or will be completed by a specific date. The sponsor will also provide a copy of a dated written notice of the approval for occupancy by the local fire marshal or local building code authority, if applicable. The local health authority may provide recommendations to the department regarding the status of compliance with local codes, ordinances, or regulations. Local health authority comments and recommendations must be received by the department within 10 days after the date of the sponsor's notice of the fire marshal or building code authority approval for occupancy. The local health authority may recommend that a state license be issued or denied; however, the final decision on licensure status remains with the department. (2) Resident increase. The license holder shall request an application for increase in capacity from the department. The department shall provide the license holder with the application form, and the department shall notify the local fire marshal and the local health authority of the request. The license holder shall arrange for the inspection of the facility by the local fire marshal. Upon completion of the inspection, the license holder shall notify the local health authority and the department in writing if the facility meets local code requirements. The local health authority may provide recommendations to the department regarding the status of compliance with local codes, ordinances, or regulations. Local health authority comments and recommendations must be received within 10 days after the date of the facility's notice of the local fire marshal or building code authority approval. The local health authority may recommend that an increase in capacity be granted or denied; however, the final decision on the increase remains with the department. The department 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 the department prior to the issuance of the license covering the increased capacity after inspection by the department if standards are met. (3) Change of ownership. The applicant for a change of ownership license will provide to the department a copy of a letter to the local health authority of the request for a change of ownership under sec.145.16 of this title (relating to Change of Ownership). The local health authority may provide recommendations to the department regarding the status of compliance with local codes, ordinances, or regulations. Local authority recommendations must be received within 10 days of the dated notice from the new owner or date of change of ownership, whichever is later, if local health official recommendations are to be considered by the department. (4) Renewal. The local health authority having jurisdiction shall receive a copy of the department's license renewal notice specifying the expiration date of the facility's current license. The local health authority may provide recommendations to the department regarding the status of compliance with local codes, ordinances, or regulations. The local authority may also recommend that a state license be issued or denied; however, the final decision on licensure status remains with the department. Local health authority comments and recommendations must be received at least 30 days prior to expiration of the license for consideration by the department. (5) Inspection/Plan Review. Any existing building being considered for licensure must either submit plan for review and approval or request a feasibility inspection to be performed by a representative of the department to determine construction or renovation requirements. The fees for inspection/plan reviews shall be in accordance with sec.145.19 of this title (relating to Fees for Plan Reviews, Construction Inspection Services, and Feasibility Inspection Services). sec.145.13. Applicant Disclosure Requirements. (a) Scope of section. No person shall apply for a license, change of ownership, increase in capacity, or renewal of a license to operate or maintain a facility without making a disclosure of information as required in this section. The disclosure is required if the person is applying for a license for the first time or if the person owned, operated, or managed another facility in this or any other state, using the same or any other business name. (b) Disclosure form. All applications shall be made on forms prescribed by and available from the Texas Department of Health (department). Applications include initial applications, change of ownership, and renewal applications. Each application must be completed in accordance with department instructions, and signed and notarized. (c) General information required. An applicant shall file with the department an application which shall contain: (1) the name of the applicant and, if an individual, whether the applicant has attained the age of 18 years; (2) the type of facility; (3) the location of the facility; (4) the name of the administrator; (5) evidence of the right to possession of the facility at the time the application will be granted, which may be satisfied by the submission of applicable portions of a lease agreement, deed or trust, or appropriate legal document. If the applicant is not the owner of the real estate, the lease agreement must clearly state that the applicant/leasee has the right to renovate, repair, and maintain the real estate as may be required to meet the licensing standards. The names and addresses of any persons or organizations listed as owner of record in the real estate, including the buildings and grounds appurtenant to the buildings, shall be disclosed to the department; (6) a certificate of good standing issued by the Comptroller of Public Accounts; and (7) the certificate of incorporation issued by the Secretary of State for a corporation or a copy of the partnership agreement for a partnership. (d) Disclosure requirements. Applicants must disclose the following information for the two-year period preceding the application date, concerning the applicant, persons with a disclosable interest, facility lessor, officers, affiliates, and manager, without regard to whether the data required relates to current or previous events: (1) denial or revocation of a license to operate a nursing facility, facility serving persons with mental retardation or related conditions, maternity facility, personal care facility, or similar facility in any state; (2) federal or state Medicaid or Medicare sanctions or penalties; (3) state or federal criminal convictions for any offense that provides a penalty of incarceration; (4) federal or state liens; (5) unsatisfied final judgments; (6) operation of a facility that has been decertified in any state under Medicare or Medicaid; (7) debarment, exclusion, or contract cancellation in any state from Medicare or Medicaid; (8) eviction involving any property or space used as a facility in any state; (9) unresolved final state or federal Medicare or Medicaid audit exceptions; or (10) orders from any court restraining or enjoining the applicant, manager, or any person with a controlling interest from operating a facility in any state. (e) Ownership and management information required. (1) Each applicant for a license to operate a facility shall disclose to the department the name and business address of: (A) each limited partner and general partner if the applicant is a partnership; (B) of each director and officer if the applicant is a corporation; and (C) each person having a beneficial ownership interest of 5.0% or more in the applicant corporation, partnership, or other business entity. (2) If any person described in this section has served or currently serves as an administrator, general partner, limited partner, trustee or trust applicant, sole proprietor, or any applicant or licensee who is a sole proprietorship, executor, or corporate officer or director of or has held a beneficial ownership interest of 5.0% or more in any other long term care facility, the applicant shall disclose the relationship to the department, including the name and current or last address of the facility and the date such relationship commenced and, if applicable, the date it was terminated. (3) If the applicant or licensee is a subsidiary of another organization, the information shall include the names and addresses of the parent organization and the names and addresses of the officers and directors of the parent organization. (4) If the facility is operated by, or proposed to be operated under, a management contract, the names and addresses of any person or organization, or both, having an ownership interest of 5.0% or more in the management company shall be disclosed to the department. (5) The information required by this section shall be provided to the department upon initial application for licensure, and changes in the information shall be provided to the department on an annual basis, except that a licensee shall notify the department within 30 days of any change of the facility's manager or management services. (f) Exemptions. The provisions of this section shall not apply to a bank, trust company, financial institution, title insurer, escrow company, or underwriter title company to which a license is issued in a fiduciary capacity except for provisions that require disclosure relating to the manager of the facility. sec.145.15. Renewal Procedures and Qualifications. (a) Each license issued under this chapter must be renewed annually. Each license expires 12 months from the date issued. A license issued under this chapter is not automatically renewed. (b) Each license holder must, at least 45 days prior to the expiration of the current license, file an application for renewal with the Texas Department of Health (department). The application for renewal shall contain the same information required for an original application as well as payment of the annual licensing fees. (c) The renewal of a license may be denied for the same reasons an original application for a license may be denied. See sec.145.17 of this title (relating to Criteria for Denying a License or Renewal of a License.) sec.145.16. Change of Ownership. (a) During the license term, a license holder may not transfer the license as a part of the sale of the facility. Prior to the sale of the facility, the license holder shall notify the Texas Department of Health (department) that a change of ownership is requested. The prospective purchaser shall submit to the department a complete application for a license under sec.145.11 of this title (relating to Criteria for Licensing) at least 30 days prior to the anticipated date of sale. The applicant shall meet all requirements for a license. (b) Pending the review of the prospective purchaser's application, the license holder shall continue to meet all requirements for operation of the facility. sec.145.17. Criteria for Denying a License or Renewal of a License. (a) The Texas Department of Health (department) may deny a license of a renewal or a license if an applicant, manager, or affiliate: (1) substantially fails to comply with the requirements described in sec.145.41 of this title (relating to Standards for Nursing Facilities); (2) fails to provide the required information, facts and/or references; (3) provides the following false or fraudulent information: (A) knowingly submits false or misleading statements in the application or any accompanying attachment; (B) uses subterfuge or other evasive means of filing; (C) engages in subterfuge or other evasive means of filing on behalf of another who is unqualified for licensure; (D) knowingly conceals a material fact; or (E) is responsible for fraud; (4) fails to pay the following fees, taxes and assessments when due: (A) licensing fees as described in sec.145.18 of this title (relating to License Fees); (B) reimbursement of emergency assistance funds within one year from the date on which the funds were received by the trustee in accordance with the provisions of sec.145.263(g) of this title (relating to Involuntary Appointment of a Trustee); (C) administrative penalties within 60 days of the order assessing the penalties in accordance with sec.145. 235 of this title (relating to Administrative Penalties); or (D) franchise taxes; (5) discloses any of the following actions within the two-year period preceding the application: (A) operation of a facility that has been decertified and/or had its contract cancelled under the Medicare or Medicaid program in any state; (B) federal or state Medicare or Medicaid sanctions or penalties; (C) state or federal criminal convictions for any offense that provides a penalty of incarceration; (D) federal or state liens; (E) unsatisfied final judgments; (F) eviction involving any property or space used as a facility in any state; (G) unresolved state or federal Medicare or Medicaid audit exceptions; or (H) suspension of a license to operate a health care facility, long term care facility, personal care facility, or a similar facility in any state; (b) Concerning subsection (a)(5) of this section, the department may consider exculpatory information provided by the applicant, manager, or affiliate and grant a license under subsection (a) (5) if the department finds the applicant, license holder, manager, or affiliate able to comply with the rules in this chapter. (c) The department shall not issue a license to an applicant to operate a new facility if the applicant discloses any of the following actions during the two- year period preceding the application: (1) revocation of a license to operate a health care facility, long term care facility personal care facility, or similar facility in any state; (2) debarment or exclusion from the Medicare or Medicaid programs in any state; or (3) a court injunction prohibiting the applicant or manager from operating a facility. (d) The department shall not approve as meeting licensing standards new beds or the expansion of a facility serving persons with mental retardation or related conditions that participates in the medical assistance program under Title XIX of the Social Security Act, as provided by the Health and Safety Code, sec.222.042, unless: (1) the new beds or the expansion was included in the plan approved by the Interagency Council on Intermediate Care Facilities for the Mentally Retarded (ICF/MR) in accordance with Health and Safety Code, sec.533.061; and (2) the Texas Department of Mental Health and Mental Retardation has approved the beds or the expansion for certification in accordance with Health and Safety Code, sec.533.065. (e) If the department denies a license or refuses to issue a renewal of a license, the applicant or licensee may request an administrative hearing in accordance with sec.145.238 of this title (relating to Administrative Hearings). sec.145.18. License Fees. (a) Basic fees. (1) Initial and renewal license. The license fee shall be $50 plus $2 for each unit of capacity or bed space for which a license is sought. The fee must be paid with each initial application and annually with each application for renewal of the license. (2) Increase in bed space. An approved increase in bed space is subject to an additional fee of $2.00 for each unit of capacity or bed space. (3) Change of administrator or director. A new facility administrator or director shall submit an application and a $20 fee to the Texas Department of Health (department). (b) Trust fund fee. (1) In addition to the basic license fee described in subsection (a) of this section, the department has established a trust fund for the use of a court- appointed trustee as described in the Health and Safety Code, Chapter 242, Subchapter D. (2) The trust fund will be established by charging and collecting an annual fee from each facility licensed under Health and Safety Code, Chapters 242 and 247. All facilities licensed as of May 1 of each year will be charged with a fee established by the department. The fee will be based on a monetary amount specified for each unit of capacity or bed space licensed. The initial amount will be calculated so as to establish a fund of $100,000; each subsequent May 1, an annual amount will be determined by the department that will cause the unencumbered balance of the fund to equal $100,000 based on the licensed facilities as of that May 1. In calculating the fee, the amount will be rounded to the next whole cent. (c) Alzheimer's certification. In addition to the basic license fee described in subsection (a) of this section, a facility that applies for certification to provide specialized services to persons with Alzheimer's disease or related conditions under Subchapter K of this chapter (relating to Certification of Facilities for Care of Persons with Alzheimer's Disease and Related Disorders) shall pay an annual fee of $100. sec.145.21. Method of Payment. Payment of fees shall be by check or money order made payable to the Texas Department of Health. All fees are non- refundable except as provided by Texas Civil Statutes, Article 6252-13(b)(1). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321480 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 834-6770 Subchapter C. Standards for Licensure 25 TAC sec.sec.145.41-145.43 The new sections are adopted under the Health and Safety Code, Chapter 242, which provides the Texas Board of Health (board) with the authority to adopt rules concerning nursing facilities and related institutions; and sec.12. 001, which provides the Board with authority to adopt rules to implement every duty imposed on the board, the department, and the commissioner of health. sec.145.41. Standards for Nursing Facilities. (a) Definitions. The Texas Board of Health (board) adopts by reference 40 Texas Administrative Code (TAC) sec.19.101 (relating to Definitions), as amended October 1, 1992. These definitions shall be applicable only to this subchapter. If these definitions are in conflict with the definitions in sec.145.3 of this title (relating to Definitions), the definitions in this section shall control. (b) Resident rights. (1) Introduction. The Texas Board of Health (board) adopts by reference 40 TAC sec.19.201 (relating to Introduction), as amended October 1, 1992. (2) Exercise of rights. The board adopts by reference 40 TAC sec.19.202 (relating to Exercise of Rights), as amended October 1, 1992. (3) Notice of rights and services. (A) The facility must inform the resident, both orally and in writing, in a language that the resident understands, of his/her rights and all rules and regulations governing resident conduct and responsibilities during the stay in the facility. Such notification must be made prior to or upon admission and during the resident's stay if changed. (B) The facility must also inform the resident, upon admission and during the stay, in a language the resident understands, of the following: (i) facility admission policies; (ii) a description of the protection of personal funds as described in 40 TAC sec.19.204 (relating to Protection of Resident Funds); and (iii) the Human Resources Code, Title 6, Chapter 102; or (iv) a written list of the rights and responsibilities contained in the Human Resources Code, Title 6, Chapter 102. (C) Receipt of information in subparagraphs (A)-(B) of this paragraph, and any amendments to it, must be acknowledged in writing. See subparagraph (H) of this paragraph concerning furnishing written description of legal rights. (D) The facility must post a copy of each document specified in subparagraphs (A)-(B) of this paragraph in a conspicuous location. Additional posting responsibilities are identified in 40 TAC sec.19.1921(j) (relating to General Requirements for a Nursing Facility) concerning additional items that must be posted, and 40 TAC sec.19.208 (relating to Examination of Survey Results). (E) The resident or his/her legal representative has the following rights: (i) upon an oral or written request, to access all records pertaining to himself/herself, including current clinical records, within 24 hours, excluding weekends and holidays; and (ii) after receipt of his/her records for inspection, to purchase photocopies of all or any portion of the records, at a cost not to exceed the community standard, upon request and two workdays advance notice to the facility. (F) The resident has the right to be fully informed in language that he/she can understand of his/her total health status, including, but not limited to, his/her medical condition. (G) The resident has the right to refuse treatment, to formulate an advance directive (as specified in 40 TAC sec.19.217 (relating to Directives and Durable Powers of Attorney for Health Care), as amended October 1, 1992), and to refuse to participate in experimental research. (i) If the resident refuses treatment, he/she must be informed of the possible consequences. (ii) If the resident chooses to participate in experimental research, he/she must be fully notified of the research and possible effects of the research. The research may be carried on only with the full written consent of the resident's physician, and the resident. (iii) Experimental research must comply with Federal Drug Administration regulations on human research as found in 45 Code of Federal Regulations, Part 4b, Subpart A. (H) The facility must furnish a written description of legal rights which includes: (i) a description of the manner of protecting personal funds, described in 40 TAC sec.19.204 (relating to Protection of Resident Funds); and (ii) a statement that the resident may file a complaint with the Texas Department of Health concerning resident abuse, neglect, and misappropriation of resident property in the facility. (I) The facility must inform each resident of the name, specialty, and way of contacting the physician responsible for his or her care. (J) A facility must immediately inform the resident; consult with the resident's physician; and if known, notify the resident's legal representative or an interested family member when there is: (i) an accident involving the resident which results in injury and has the potential for requiring physician intervention; (ii) a significant change in the resident's physical, mental, or psychosocial status (that is, a deterioration in health, mental, or psychosocial status in either life-threatening conditions or clinical complications); (iii) a need to alter treatment significantly (that is, a need to discontinue an existing form of treatment due to adverse consequences, or to commence a new form of treatment); or (iv) a decision to transfer or discharge the residents from the facility. (K) The facility must also promptly notify the resident and, if known, the resident's legal representative or interested family member when there is a change in room or roommate assignment as described in 40 TAC sec.19.501(e) (relating to Quality of Life). (L) The facility must record and periodically update the address and phone number of the resident's family or legal representative, or a responsible party. (4) Protection of resident funds. (A) Management of financial affairs. The resident has the right to manage his or her financial affairs and the facility may not require residents to deposit their personal funds with the facility. The resident may designate another person to manage his/her financial affairs. (B) Management of personal funds. Upon written authorization of a resident, the facility may hold, safeguard, manage, and account for the personal funds of the resident deposited with the facility, as specified in subparagraph (3) of this subsection. The facility will act as a fiduciary agent if the facility holds, safeguards, and accounts for the resident's personal funds. (C) Statement of resident rights/responsibilities. The facility must provide each resident and responsible party with a written statement at the time of admission that meets the following requirements. (i) The statement must describe the resident's rights to select how personal funds will be handled. The following alternatives must be included. (I) The resident has the right to manage his/her financial affairs. (II) The facility may not require residents to deposit their personal funds with the facility. (III) The facility has an obligation, upon written authorization of a resident, to hold, safeguard, manage, and account for the personal funds of the resident deposited with the facility. (IV) The resident has a right to apply to the Social Security Administration to have a representative payee designated for federal or state benefits to which he\she may be entitled. (V) Except when subclause (IV) of this clause applies, the resident has a right to designate in writing another person to manage personal funds. (ii) The statement advises the resident that the facility must have written permission from the resident, responsible party, or legal representative to handle his/her personal funds. (5) Free choice. (A) The resident has the right to: (i) choose and retain a personal attending physician, subject to that physician's compliance with the facility's standard operating procedures for physician practices in the facility; (ii) be fully informed in advance about care and treatment and of any changes in that care or treatment that may affect the resident's well-being; and (iii) unless adjudged incompetent or otherwise found to be incapacitated under the laws of the State of Texas, participate in planning care and treatment or changes in care and treatment. See 40 TAC sec.19.217 (relating to Directives and Durable Powers of Attorney), as amended October 1, 1992. (B) Residents are free to exercise their will in making written or unwritten directives to reject life-sustaining procedures. The resident's attending physician must comply with a previously issued directive of a resident who becomes comatose or otherwise unable to communicate unless the physician believes the directive no longer reflects the resident's present desire. If the attending physician refuses to comply with a directive or treatment decision, he must make a reasonable effort to transfer the resident to another physician. The desire of a terminally ill resident, who is under 18 years old and who is competent, is to supersede the effects of a directive executed on his behalf by persons specified in the Texas Natural Death Act. See 40 TAC sec.19.217 (relating to Directives and Durable Powers of Attorney), as amended October 1, 1992. (C) The resident must be allowed complete freedom of choice to obtain pharmacy services from any pharmacy that is qualified to perform the services. A facility must not require residents to purchase pharmaceutical supplies or services from the facility itself or from any particular vendor. The resident has the right to be informed of prices before purchasing any pharmaceutical item or services from the facility, except in an emergency. (6) Privacy and confidentiality. The resident has the right to personal privacy and confidentiality of his/her personal and clinical records. See also 40 TAC sec.19.1910(e) (relating to Clinical Records) and paragraph (3)(E) of this subsection. (A) Personal privacy includes accommodations, medical treatment, written and telephone communications, personal care, visits, and meetings of family and resident groups; but this does not require the facility to provide a private room for each resident. (B) Except as provided in subparagraph (C)(ii) of this paragraph, the resident may approve or refuse the release of personal and clinical records to any individual outside of the facility. (C) The resident's right to refuse release of personal and clinical records does not apply when: (i) the resident is transferred to another health care institution; (ii) record release is required by law; or (iii) during licensure surveys. (D) The facility must ensure the resident's right to privacy in the following areas: (i) accommodations as described in 40 TAC sec.19.1501(d) (relating to General Requirements); (ii) medical treatment (The facility must provide privacy to each resident during examinations, treatment, case discussions, and consultations. Staff must treat these matters confidentially.) ; (iii) personal care; (iv) access and visitation, as follows: (I) The resident has the right and the facility must provide immediate access to any resident by the following: (-a-) any representative of the Texas Department of Health (department) or any other agency with authority; (-b-) the resident's individual physician; (-c-) the state long-term care ombudsman as established under the Older Americans Act of 1965, sec.307(a)(12); (-d-) any representative of Advocacy Incorporated; (-e-) subject to the residents' right to deny or withdraw consent at any time, immediate family, or other relatives of the resident; and (-f-) subject to reasonable restrictions and the resident's right to deny or withdraw consent at any time, others who are visiting with the consent of the resident. (II) The facility must provide reasonable access to any resident by any entity or individual that provides health, social, legal, or other services to the resident, subject to the resident's right to deny or withdraw consent at any time. (III) The facility must allow representatives of the state ombudsman cited in subclause (I)(-c-) of this clause to examine a resident's clinical records with the permission of the resident or the resident's legal representative, and consistent with state law. (v) governmental searches as follows. (I) Governmental searches are permitted only if there exists probable cause to believe an illegal substance or activity is being concealed. (II) Administrative searches by the appropriate entity, such as the fire inspector, are allowed only for limited purposes, but such searches would not ordinarily extend to the resident's personal belongings. (III) The department and the nursing facility must provide for and allow residents their individual freedoms. State statutes authorize inspections of the nursing facility but do not authorize inspection of those areas in which an individual has a reasonable expectation of privacy. Any direct participation by the department personnel in an inspection of "the contents of residents' personal drawers and possessions," is in violation of federal and state law. (vi) privacy for meetings with family and resident groups. (E) All information that contains personal identification or descriptions which would uniquely identify an individual resident or a provider of health care is considered to be personal and private and will be kept confidential. Personal identifying information (except for PCN numbers) will be deleted from all records, reports, and/or minutes from formal studies which are forwarded to the Texas Department of Human Services (TDHS), or anyone else. These records, reports, and/or minutes, which have been de-identified, will still be treated as confidential. All such material mailed to TDHS or anyone else must be in a sealed envelope marked "Confidential." (7) Grievances. A resident has the right to: (A) voice grievances without discrimination or reprisal. Such grievances include those with respect to treatment which has been furnished as well as that which has not been furnished; (B) prompt efforts by the facility to resolve grievances the resident may have, including those with respect to the behavior of other residents; and (C) notify state agencies of complaints against a facility. Complaints will be acknowledged by the staff of the agency that receives the complaint. All complaints will be investigated, whether oral or written. (8) Examination of survey results. The board adopts by reference 40 TAC sec.19. 208 (relating to Examination of Survey Results), as amended October 1, 1992. (9) Work. The resident has the right to: (A) refuse to perform services for the facility; and (B) perform services for the facility, if he chooses, when: (i) the facility has documented the need or desire for work in the plan of care; (ii) the plan specifies the nature of the services performed and whether the services are voluntary or paid; (iii) compensation for paid services is at or above prevailing rates; and (iv) the resident agrees to the work arrangement described in the plan of care. (10) Mail. The board adopts by reference 40 TAC sec.19.211 (relating to Mail), as amended October 1, 1992. (11) Telephone. The board adopts by reference 40 TAC sec.19.213 (relating to Telephone), as amended October 1, 1992. (12) Self-administration of drugs. The board adopts by reference 40 TAC sec.19. 216 (relating to Self-administration of Drugs), as amended October 1, 1992. (13) Directives and durable powers of attorney for health care. The board adopts by reference 40 TAC sec.19.217 (relating to Directives and Durable Powers of Attorney for Health Care), as amended October 1, 1992. (14) Personal property. The resident has the right to retain and use personal possessions, including some furnishings, and appropriate clothing as space permits, unless to do so would infringe upon the rights or health and safety of other residents. Reasons for any limitations are documented in the resident's clinical record. (A) If the resident dies, personal property must be transferred to the estate or the person designated by the resident. (B) If it is donated or sold to the facility by the resident or estate, the transaction must be documented. (C) If the resident dies and there is no responsible party, family, or legal guardian and no arrangements have been made for the disposition of property, the facility must dispose of property according to the Texas Property Code, Title 6, Chapter 71 (relating to Escheat of Property) and according to the Texas Probate Code, Chapter 10 (relating to Payment of Estates into State Treasury). (15) Married couples. The resident must be ensured privacy for visits with his or her spouse. The resident has the right to share a room with his or her spouse when married residents live in the same facility and both spouses consent to the arrangement. (16) Incompetency. If a resident has been adjudicated incompetent or has been found by the attending physician to be, for medical reasons, incapable of understanding these rights, the resident's rights are to be exercised as outlined in this subchapter. Documentation to support delegation of rights must be according to the provisions of paragraph (17) of this subsection. (17) Documentation for the delegation of rights. (A) The delegation of the individual, resident and citizen rights may occur in any one of the following three cases: (i) when a competent individual chooses to allow another to act for him/her; (ii) when the resident has been adjudicated to be incompetent by a court of law; or (iii) when the physician has determined that, for medical reasons, the resident is incapable of understanding and exercising such rights. (B) In order to assure preservation of rights, the physician and the facility must be aware of, must address, and must document specific information concerning the incapability of the resident to understand and exercise his/her rights even if the resident has been fully adjudicated incompetent and a guardian has been appointed or if there is an extant durable power of attorney. (C) To ensure that the protection of a resident adjudicated incompetent or determined to be incapable or exercising his/her rights and responsibilities for medical reasons, the administrator, the physician, and the resident care staff have specific responsibilities. (D) Administrative documentation must exist covering: (i) the relationship of the resident to the person assuming his rights and responsibilities; (ii) evidence that the responsible person can act for the resident; and (iii) the extent of a guardianship or power of attorney. (E) Physician documentation must exist covering: (i) a statement that the resident is or not capable of understanding and exercising his/her rights; (ii) specific causative and/or contributive medical diagnosis(es); (iii) medical observation and test(s) which support the diagnosis; (examples include, but are not limited to, Alzheimer's Disease, Organic Brain Syndrome, confusion, short-term memory loss, inability to attend to verbal input, disorientation as to time, place, or person, incoherent speech, inability to attend or converse or to answer questions); (iv) periodic assurance that there has been no essential change in the resident's mental function; (v) reevaluation whenever a significant change in resident status occurs or for orders that impact on resident rights (e.g. "No CPR"). (F) Facility staff documentation must exist covering: (i) resident assessments, care plans and progress notes that address the resident's inability to exercise his/her rights and responsibilities and demonstrate that the facility encourages the resident to exercise his/her rights and responsibilities to his/her fullest capability; (ii) assurances that the resident who is mentally capable of understanding and exercising his/her rights, but physically incapable of doing so, receives interventions which facilitate the exercise of his/her rights. (G) The presence of documentation in this paragraph does not guarantee the protection of a resident's rights and responsibilities, but forms the basis for compliance with the federal requirements for the delegation of a resident's rights. It is important because it increases the likelihood that the resident's care-givers and family will understand and be accountable for the resident's rights and responsibilities. (c) Resident behavior and facility practice. The board adopts by reference 40 TAC sec.19.401 (relating to Resident Behavior and Facility Practice), as amended October 1, 1992. (d) Quality of life. The board adopts by reference 40 TAC sec.sec.19.501- 19.504 (relating to Quality of Life), as amended October 1, 1992. (e) Resident assessment. (1) The facility must conduct initially and periodically a comprehensive accurate, standardized, reproducible assessment of each resident's functional capacity. (A) Admission orders. At the time each resident is admitted, the facility must have physician orders for the resident's immediate care. (B) Comprehensive assessments. (i) The facility must make a comprehensive assessment of all residents' needs, utilizing the Health Care Financing Administration's (HCFA) approved Resident Assessment Instrument (RAI). (ii) The comprehensive assessment must include at least the following information: (I) medically defined conditions and prior medical history; (II) medical status measurement; (III) physical and mental functional status; (IV) sensory and physical impairments; (V) nutritional status and requirements; (VI) special treatments or procedures; (VII) mental and psychosocial status; (VIII) discharge potential; (IX) dental condition; (X) activities potential; (XI) rehabilitation potential; (XII) cognitive status; and (XIII) drug therapy. (iii) Assessments must be conducted: (I) no later than 14 days after the date of admission; (II) for current nursing facility residents, not later than one year from the effective date of this rule; (III) promptly after a significant change in the resident's physical or mental condition (as soon as the resident stabilizes at a new functional or cognitive level, or within two weeks, whichever is earlier); and (IV) in no case, less often than once every 12 months. (iv) The nursing facility must examine each resident, and review the minimum data set core elements specified in HCFA's RAI no less than once every three months and as appropriate. Results must be recorded to assure continued accuracy of the assessment. (v) The results of the assessment are used to develop, review, and revise the resident's comprehensive plan of care as specified in 40 TAC sec.19.602 (relating to Comprehensive Care Plans). (C) Accuracy of assessments. (i) Coordination. (I) Each assessment must be conducted or coordinated with the appropriate participation of health professionals. (II) Each assessment must be conducted or coordinated by a registered nurse who signs and certifies the completion of the assessment. (ii) Certification. Each individual who completes a portion of the assessment must sign and certify the accuracy of that portion of the assessment. (2) The board adopts by reference 40 TAC sec.19.602 and sec.19.603 (relating to Resident Assessment), as amended October 1, 1992. (f) Quality of care. The board adopts by reference 40 TAC sec.19.701 (relating to Quality of Care), as amended October 1, 1992. (g) Nursing services. (1) The facility must have sufficient staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care. Care and services are to be as specified in 40 TAC sec.19.701 (relating to Quality of Care). (A) Sufficient staff. (i) The facility must provide services by sufficient numbers of each of the following types of personnel on a 24-hour basis to provide nursing care to all residents in accordance with resident care plans: (I) licensed nurses (except when waived under paragraph (3) of this subsection); and (II) other nursing personnel. (ii) Except when waived under subparagraph (C) of this paragraph, the facility must designate a licensed nurse to serve as a charge nurse on each tour of duty. (B) Registered nurse. (i) Except when waived under subparagraphs (C) or (D) of this paragraph, the facility must use the services of a registered nurse for at least eight consecutive hours a day, seven days a week. (ii) Except when waived under subparagraphs (C) or (D) of this paragraph, the facility must designate a registered nurse to serve as the director of nursing on a full-time basis, 40 hours per week. (iii) The director of nursing may serve as a charge nurse only when the facility has an average daily occupancy of 60 or fewer residents. (C) Waiver of requirement to provide licensed nurses on a 24-hour basis. To the extent that a facility is unable to meet the requirements of subparagraphs (A)(ii) and (B)(i) of this paragraph, the state may waive such requirements with respect to the facility, if: (i) the facility demonstrates to the satisfaction of the Texas Department of Health (department) that the facility has been unable, despite diligent efforts (including offering wages at the community prevailing rate for nursing facilities), to recruit appropriate personnel; (ii) the state determines that a waiver of the requirement will not endanger the health or safety of individuals staying in the facility; (iii) the state finds that, for any periods in which licensed nursing services are not available, a registered nurse or a physician is obligated to respond immediately to telephone calls from the facility; (iv) a waiver granted under the conditions listed in this subparagraph is subject to annual state review; (v) in granting or renewing a waiver, a facility may be required by the state to use other qualified, licensed personnel; (vi) the state agency granting a waiver of such requirements provides notice of the waiver to the state long-term care ombudsman (established under the Older Americans Act of 1965, sec.307(a)(12)) and the protection and advocacy system in the state for the mentally ill and mentally retarded; and (vii) the nursing facility that is granted such a waiver by the state notifies residents of the facility (or, where appropriate, the guardians or legal representatives of such residents) and members of their immediate families of the waiver. (D) Request of waiver. The facility must request a waiver through the local the department's long-term care unit, in writing, at any time the administrator determines that staffing will fall, or has fallen, below that required in subparagraphs (A) and (B) of this paragraph for a period of 30 days or more out of any 45 days. (i) Information to be included in the request/notification: (I) date beginning when facility was/is unable to meet staffing requirements; (II) type waiver requested-24-hour licensed nurse and/or seven day/per week registered nurse; (III) projected number of hours per month staffing reduced for 24-hour licensed nurse waiver or seven day/per week registered nurse waiver; and (IV) staffing adjustments made due to inability to meet staffing requirements. (ii) Waivers will be granted by department. (iii) If a facility, after requesting a waiver, is later able to meet the staffing requirements of subparagraphs (A) and (B) of this paragraph, the department must be notified, in writing, on the effective date that staffing meets requirements. (iv) Verification that the facility appropriately made a request and notification will be done at the time of survey. (E) Effectiveness of waivers. Approved waivers are valid throughout the facility licensure period unless approval is withdrawn. During the relicensure survey, the determination is made for approval or denial for the next facility licensure period should a waiver continue to be necessary. The facility requests a redetermination for a waiver from the department long-term care unit at the time the relicensure survey is scheduled. At other times if a request is made, the long-term care unit may schedule a visit for waiver determination. Recommendation for approval or denial of a waiver is initially made by the surveyor. (F) Approval of waiver. To be approved for a waiver, the nursing facility must meet all of the requirements stated in this subsection and the requirements specified throughout this section. In some instances, the survey agency may require additional conditions or arrangements such as: (i) an additional licensed vocational nurse on day-shift duty when the registered nurse is absent; (ii) modification of nursing services operations; and (iii) modification of the physical environment relating to nursing services. (G) Denial/withdrawal of waiver. Denial or withdrawal of a waiver may be made at any time if any of the following conditions exist: (i) the quality of resident care is not acceptable; or (ii) justified complaints are found in areas affecting resident care. (2) Additional nursing services staffing requirements are as follows. (A) The ratio of licensed nurses to residents must be sufficient to meet the needs of the residents. (i) At a minimum, the facility must maintain a ratio (for every 24-hour period) of one licensed nursing staff person for each 20 residents. This equates to a minimum of .04 licensed-care hours per resident day. (ii) There shall be at least one licensed nurse on each shift. (iii) Licensed nurses who may be counted in the ratio include, but are not limited to, director of nursing, assistant directors of nursing, staff development coordinators, charge nurses, and medication/treatment nurses. These licensed nurses may be counted subject to the limitations of clause (iv) of this subparagraph. (iv) Staff, who also have administrative duties not related to nursing, may be counted in the ratio only to the degree of hours spent in nursing related duties. (B) The facility must have sufficient total direct-care staff to meet the needs of the residents. (C) A registered nurse must have a current license from the Board of Nurse Examiners for the State of Texas and must practice in compliance with the Nurse Practice Act and rules and regulations of the Board of Nurse Examiners. (D) A licensed vocational nurse must have a current license from the Board of Vocational Nurse Examiners of Texas and must practice in compliance with the Vocational Nurse Act and rules and regulations of the Board of Vocational Nurse Examiners. (E) The administrator is responsible for always maintaining as many nurse aides as necessary to meet the needs of residents. Nursing time devoted solely to resident care is included in computing nursing requirements. There must be enough nursing personnel to provide 24-hour nursing services. Personnel are increased if necessary to ensure that each resident receives protection of his rights and quality care as specified by these requirements. (F) Nursing personnel must be assigned duties consistent with their education and experience and based on the characteristics of the resident load and the nursing skills needed to provide care to residents. (G) The facility must maintain continuous time schedules showing the number and classification of nursing personnel, including relief personnel, who are scheduled or who worked in each unit during each tour of duty. The time schedules must be maintained for the period of time specified by facility policy or for at least two years following the last day in the schedule. (H) A graduate vocational nurse who has a temporary work permit must work under the direction of a licensed vocational nurse, registered nurse, or licensed physician who is physically present in the facility. The graduate (registered) nurse who has a temporary work permit must work under the direction of a registered nurse until registration has been achieved. (I) If the facility uses licensed temporary nursing personnel, the temporary personnel must have the same qualifications that permanent facility employees do. Temporary personnel may not serve as the director of nursing. If temporary personnel are used for afternoon or night shifts, a full-time, currently licensed nurse must be on call and immediately available by telephone. The on- call nurse must be a registered nurse unless the facility has a current waiver from the department and is not required to provide daily registered nurse coverage. (J) The charge nurse on the afternoon shift must be at least a licensed vocational nurse. (K) The licensed charge nurse working on the 7-3 and 3-11 shift and charge individual working on the 11-7 shift (if because of waiver granted a licensed nurse is not required on the 11-7 shift) will conduct rounds to see all residents on their shift. (L) It is not a deficiency if the facility has documentation that a nurse has a current temporary work permit from the Board of Vocational Nurse Examiners of Texas or the Board of Nurse Examiners of Texas. See 40 TAC sec.19.804(a)(3) (relating to Nursing Facility Director of Nursing Services). (M) Licensed nurses must enter, or approve and sign, nurses' notes at least monthly. Routine charting for residents must reflect the resident's ability as assessed on the basis of the way he/her performs his/her activities of daily living at least 60% of the time. See 40 TAC sec.19.804(7)(A) (relating to Director of Nursing services). (3) The board adopts by reference 40 TAC sec.sec.19.803-19.806 and sec.sec.19.808-19.811 (relating to Nursing Services), as amended October 1, 1992. (h) Dietary Services. The board adopts by reference 40 TAC sec.sec.19.901- 19.911 (relating to Dietary Services), as amended October 1, 1992. (i) Physician services. (1) The board adopts by reference 40 TAC sec.sec.19.1001, 19.1002., 19.1004, 19.1009, and 19. 1010 (relating to Physicians Services), as amended October 1, 1992. (2) Physician visits must conform to the following schedule. (A) The resident must be seen by a physician at least once every year and as necessary to meet the needs of the resident. Physician orders shall be reviewed and revised as necessary at least once every 60 days, unless the resident's physician specifies, in writing in the resident's clinical record, a different schedule for such review and revision. (B) Each resident shall have a physical examination at least annually by his or her physician. See also 40 TAC sec.19.1401(2)(E) (relating to Infection Control). (j) Provision of specialized rehabilitative services. The board adopts by reference 40 TAC sec.19.1101 and sec.19.1102 (relating to Provision of Specialized Rehabilitative Services), as amended October 1, 1992. (k) Dental and other professional services. (1) Dental services. (A) The facility must assist residents in obtaining routine and 24-hour emergency dental services. (B) At the time of admission, the facility shall obtain the name of the resident's preferred dentist and record this in the medical record. (C) The facility shall maintain a list of local dentists for residents who do not have a private dentist. (D) At least once each year, the facility shall ask each resident or the resident's custodian if the resident desires a dental examination and treatment. (E) Each facility shall use all reasonable efforts to arrange for a dental examination for each resident who desires one. (F) The facility shall not be liable for the costs of the resident's dental care. (2) Other professional services. (A) The facility shall maintain a list of podiatrists in the area as assistance to the resident in arranging for podiatric care. (B) The facility shall maintain a list of optometrists in the area as assistance to the resident in arranging for optometric services. (l) Pharmacy services. (1) The board adopts by reference 40 TAC sec.sec.19.1304 and 19.1306-19.1310 (relating to Pharmacy Services), as amended October 1, 1992. (2) The facility shall assist the resident in obtaining routine drugs and biologicals and make readily available emergency drugs or obtain them under an agreement described in 40 TAC sec.19.1906 (relating to Use of Outside Resources). See also 40 TAC sec.19.701(12) and (13) (relating to Quality of Care) for information concerning drug therapy and medication errors. (A) Methods and procedures. The facility may permit unlicensed personnel to administer drugs, but only under the general supervision of a licensed nurse. The unlicensed individual must have a current medication aide permit issued by the department, or be a nursing or medication aide student. (B) Accuracy in service delivery. A facility must provide pharmaceutical services (including procedures that assure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of each resident. (C) Monitoring. The facility's quality assessment and assurance committee will monitor the pharmaceutical services of the facility as described in subsection (o)(6)(D) of this section. (D) Service consultation. The facility must employ or obtain the services of a licensed pharmacist who: (i) provides consultation on all aspects of the provision of pharmacy services in the facility; (ii) establishes a system of records of receipt and disposition of all controlled drugs in sufficient detail to enable an accurate reconciliation; and (iii) determines that drug records are in order and that an account of all controlled drugs is maintained and periodically reconciled. (iv) adheres to the additional supervision and consultation requirements in paragraph (3) of this subsection. (E) Drug regimen review. (i) The drug regimen of each resident must be reviewed at least once a month by a licensed pharmacist. (ii) The pharmacist must report any irregularities to the attending physician and the director of nursing, and these reports must be acted upon. (iii) The physician must review the resident's drug regimen in accordance with subsection (i)(2) of this section. (F) Labeling of drugs and biological. Drugs and biological used in the facility must be labeled in accordance with currently accepted professional principles and in compliance with the Texas State Board of Pharmacy Laws and Regulations, including the appropriate accessory and cautionary instructions and the expiration date when applicable. (G) Storage of drugs and biological. (i) In accordance with state and federal laws, the facility must store all drugs and biologicals in locked compartments under proper temperature controls, and permit only authorized personnel to have access to the keys. (ii) The facility must provide separately locked, permanently affixed compartments for storage of controlled drugs listed in Schedule II of the Comprehensive Drug Abuse Prevention and Control Act of 1976 and other drugs subject to abuse, except when the facility uses single unit package drug distribution systems in which the quantity stored is minimal and a missing dose can be readily detected (see 40 TAC sec.19.1309, (relating to Controlled Substances)). (3) The resident's choice of pharmacy provider must be in accordance with the provisions concerning free choice in subsection (b)(5)(C) of this section. The resident's freedom of choice of pharmacy services is not considered abridged when the facility's policies require: (A) a written agreement that the resident's pharmacy services be provided by a pharmacy on a 24-hour basis for emergency medications; and/or (B) a written agreement that the resident's medication be delivered to the facility on a timely and reasonable basis; (C) a written agreement specifying that the facility may choose a pharmacy and/or particular unit dose and related distribution equipment system when the facility is paying for the medications, and does not subsequently pass the charge on to the resident or family representative. (m) Infection control. The board adopts by reference 40 TAC sec.19. 1401- sec.19.1402 (relating to Infection Control), as amended October 1, 1992. (n) Physical plant and environment. The board adopts by reference 40 TAC, sec.sec.19.1501-19.1521 (relating to Physical Plant and the Environment), as amended October 1, 1992. (o) Administration. (1) Generally. The board of adopts by reference 40 TAC sec.sec.19.1903- 19.1911, 19.1913, 19.1914, 19.1920-19.1922, 19.1928, and 19.1930 (relating to Administration), as amended October 1, 1992. (2) Administration. A nursing facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident. (A) Licensure. A nursing facility (NF) must be licensed by the department as described in 40 TAC sec.19.2001 (relating to Licensure) as amended. (B) Compliance with federal, state, and local laws and professional standards. The facility must operate and provide services in compliance with all applicable federal, state, and local laws, regulations, and codes, and with accepted professional standards and principles that apply to professionals providing services in such a facility. All facility personnel and consultants must be licensed, registered, or certified as required by state and local laws and the rules adopted under those laws. (3) Governing body. (A) The facility must have a governing body, or designated persons functioning as a governing body that is legally responsible for establishing and implementing policies regarding the management and operation of the facility. (i) The governing body must have periodically updated written policies and procedures specifying and governing all services that are formally adopted and dated. The policies and procedures must be available to all of the facility's governing body's members, staff, residents, family or legal representatives of residents, and the public. (ii) The governing body full-time nursing home administrator as its official representative, and designate the administrator's responsibilities and authority. (B) The facility must operate under the supervision of a full-time nursing home administrator, who is appointed by the governing body and who is licensed by the Texas Board of Licensure for Nursing Home Administrators. The administrator, as a professional, must work at least 40 hours per week on administrative duties. The administrator must be accountable to the governing body for overall management of the nursing facility. The administrator's authority and responsibilities must be clearly outlined to include, but not be limited to: (i) maintaining liaison with the governing body, medical and nursing staff, and other professional and supervisor staff, through regular meetings and periodic reporting; (ii) adopting and enforcing rules and regulations for the health care and safety of residents and others, and for the protection of their personal property and civil rights; (iii) establishing standard operating procedures for physician practices in a nursing facility, in coordination with the director of nursing; (iv) evaluating, implementing, and documenting disposition of recommendations from the facility's committees and consultants; (v) managing the facility through employment of professional and ancillary personnel and through proper delegation of duties; (vi) naming a responsible employee to act in the administrator's absence so the facility has continuous administrative direction; (vii) ensuring that all volunteer programs are planned and supervised by a designated employee; (viii) designating a person in authority if the facility does not have an administrator. The facility must secure a licensed nursing home administrator within 30 days; and (ix) ensuring that a person designated as in authority must notify the department immediately if the facility does not have an administrator. (4) Additional clinical record service requirements. (A) The facility must maintain a permanent, master index of all residents admitted to and discharged from the facility. This index must contain at least the following information concerning each resident: (i) name of resident (first, middle, and last); (ii) date of birth; (iii) date of admission; (iv) date of discharge; and (v) social security, Medicare, or Medicaid number. (B) In the event of closure of a facility, change of ownership or change of administrative authority, the new management shall maintain documented proof of the medical information required for the continuity of care of all residents. This documentation may be in the form of copies of the resident's clinical record or the original clinical record. In a change of ownership, the two parties will agree and designate in writing who will be responsible for the retention and protection of the inactive and closed clinical records. (C) Recording information in ink. All resident care information must be recorded in ink. (i) Erasures are not allowed on any part of the clinical record, with the exception of the medication/treatment/diet section of the resident care plan. (ii) Erasures and obliterations may create curiosity and suspicion as to the reasons for the change. The correct procedure is to line out the incorrect data with a single line in ink. Record the date of the lining out, the signature of the person doing it, and the correct information. (iii) Alterations on physician's orders, after they are cosigned by the physician, are unacceptable. (D) Periodic thinning of active clinical records is necessary to reduce bulkiness. The following items must remain in the active clinical record for the sake of completeness: (i) current history and physical; (ii) current physician's orders and progress notes; (iii) current resident assessment instrument (RAI) and subsequent quarterly reviews; (iv) current care plan; (v) most recent hospital discharge summary and transfer summary; (vi) current nursing and therapy notes; (vii) current medication and treatment records; (viii) current lab and x-ray reports; and (ix) the admission record. (E) Clinical records shall be maintained as follows for readmitting patients. (i) If a resident is discharged for 30 days or less and readmitted to the same facility, it is not necessary to develop a completely new clinical record upon the resident's readmission. Upon readmission, it is necessary to: (I) obtain current, signed physician's orders; (II) record a descriptive nurse note, giving a complete assessment of the resident's condition; (III) start a new medication sheet to document medications ordered by the physician; (IV) update the admission sheet and include any changes in diagnoses, etc.; (V) obtain the transfer summary, which could update the history and physical and authenticate the hospital diagnosis, and could constitute new orders, provided physical examination findings and orders are contained in the document and it is signed by a physician. If incomplete, the facility must obtain signed copies of the hospital history and physical and discharge summary; and (VI) complete a new resident assessment instrument (RAI) and update the comprehensive care plan if evaluation of the resident indicates a significant change which appears to be permanent. If no such change has occurred, then update only the resident comprehensive care plan. (ii) A new clinical record must be initiated if the resident is a new admission or has been gone over 30 days. (F) Pro re nata (PRN) medications/treatments must be recorded in the clinical record as specified by 40 TAC sec.19.809(c) (relating to Administration of Drugs in Nursing Facilities). (G) All required signatures must comply with the following criteria. (i) The use of electronic data transmission of facsimiles (faxing) is acceptable for sending and receiving health care documents, including the transmission of physicians' orders. Long-term care facilities may utilize electronic transmission if they adhere to the following requirements. (I) The sending station or originator of the document maintains an original signed by the author, or immediately forwards the original to the facility. (II) All faxed documents must be signed by the author before transmission. (III) The person wanting to use faxing to send documents to the facility must send the facility a letter stating his/her intent and sign it using the official signature which he/she will use to sign the faxed reports. (IV) The facility must implement safeguards to assure that faxed documents sent and received are directed to the correct location to protect confidential health information from unauthorized access. (V) Facilities should be advised to take extra precaution when "thermal paper" is used to ensure that a legible copy of the order is retained as long as the medical record is maintained. (ii) Stamped signatures are acceptable for all health care documents requiring a physician's signature, if the person using the stamp sends a letter of intent which specifies that they will be the only one using the stamp, and then signs the letter with the same signature as the stamp. (iii) The facility must maintain all letters of intent on file and make them available to representatives of the state Medicaid and survey agencies upon request. (iv) All orders must originate with a physician, dentist or podiatrist (see 40 TAC sec.19.804 (relating to Nursing Facility Director of Nursing Facilities). (v) Use of a master signature legend in lieu of the legend on each form for nursing staff signatures of medication, treatment, or flow sheet entries is acceptable if the following exist. (I) Each nursing employee documenting on medication, treatment, or flow sheets will sign his/her full name, title, and initials on the legend. (II) The original master legend will be kept in the clinical records office or director of nurses' record. (III) A current copy of the legend will be filed at each nurses' station available to state agency representatives. (IV) Once a nursing employee leaves employment with the facility, his/her name will be deleted from the list by lining through it and writing the current date by the name. (V) If the master legend is not maintained in alphabetical order, facility staff will provide assistance to state agency representatives in locating appropriate nursing employees' signatures. (VI) The facility will update the master legend as needed for newly hired and terminated employees. (VII) The master signature legend must be retained permanently as a reference to entries made in clinical records. (H) When resident records are destroyed after the retention period is complete, the facility must shred or incinerate the records in a manner which protects confidentiality. At the time of destruction, the facility must document the following for each record destroyed: (i) resident name; (ii) medical record number, if used; (iii) social security number, Medicare/Medicaid number, or the date of birth; and (iv) date and signature of person carrying out disposal. (I) The facility must develop and implement policies and procedures to safeguard the confidentiality of medical record information from unauthorized access. The facility must allow access and/or release confidential medical information under court order or by written authorization of the resident or his or her legal guardian or designated representative (see subsection (b)(6) of this section). (5) Transfer agreement. (A) The facility must have in effect a transfer agreement with one or more hospitals that reasonably assures that: (i) residents will be transferred from the facility to the hospital and ensured of timely admission to the hospital when transfer is medically appropriate as determined by the attending physician; and (ii) medical and other information needed for care and treatment of residents, and when the transferring facility deems it appropriate, for determining whether such residents can be adequately cared for in a less expensive setting than either the facility or the hospital, will be exchanged between the institutions. (B) To ensure continuity of care, the transfer agreement should: (i) provide for prompt diagnostic and other medical services; (ii) ensure accountability for a resident's personal effects at the time of transfer; (iii) specify the steps needed to transfer a resident in a prompt, safe and efficient manner; (iv) provide for supplying, at the time of transfer, a summary of administrative, social, medical, and nursing information to the facility to which the resident is transferred. The summary must either be a transcript of the resident's medical record, an interagency referral form, or a copy of the admission sheet and discharge summary; and (v) ensure that provisions of the Civil Rights Act of 1964, Title VI, are met. (C) If the board and/or governing body for a long-term care facility and a hospital are the same, the controlling entity must have written procedures outlining how transfers will occur. This is regardless of whether there are different administrators. (D) The facility is considered to have a transfer agreement in effect if the state survey agency determines that the facility tried to enter into an agreement but could not, and if it is the public interest not to enforce this requirement. The facility must document in writing its good faith effort to enter into an agreement. (6) Quality assessment and assurance. (A) The facility must maintain a Quality Assessment and Assurance Committee consisting of: (i) the director of nursing services; (ii) a physician designated by the facility; and (iii) at least three other members of the facility's staff. (B) The Quality Assessment and Assurance Committee shall: (i) meet at least quarterly to identify issues with respect to which quality assessment and assurance activities are necessary; and (ii) develop and implement appropriate plans of action to correct identified quality deficiencies. (C) The department may not require disclosure of the records of the Quality Assessment and Assurance Committee except insofar as such disclosure is related to the compliance of the committee with the requirements of subparagraph (B) of this paragraph. (D) The Quality Assessment and Assurance Committee, or a subcommittee thereof, will establish and monitor an infection control program according to 40 TAC sec.19.1401 (relating to Infection Control), and will monitor the pharmaceutical services of the facility. (E) See 40 TAC sec.19.701(12) and (13) (relating to Quality of Care) and paragraph (7) of this subsection for additional items that should be monitored by the Quality Assessment and Assurance Committee. (7) Incident or accident reporting. (A) The facility must detail in the clinical record every accident or incident, including allegations of mistreatment of residents by facility staff, medication errors, and drug reactions. (B) Accidents, whether or not resulting in injury, and any unusual incidents or abnormal events including allegations of mistreatment of residents by staff or personnel or visitors, shall be described in a separate administrative record and reported by the facility in accordance with the licensure Act and this section. (i) If the incident appears to be of a serious nature, it shall be investigated by or under the direction of the director of nurses, the facility administrator, or a committee charged with this responsibility. (ii) If the incident involves a resident and is serious or is one requiring special reporting to the department, the resident's responsible party and attending physician shall be immediately notified. (iii) Certain types of incidents shall be specially and specifically reported to the central office of the department in accordance with guidelines established by the department. (C) Accident or incident reports shall be retained for the period of time specified by facility policy, but at least for two years following the occurrence, and shall contain the following information: (i) For incidents involving residents, the name of the resident; witnesses (if witnesses were present); date, time, and description of the incident; circumstances under which it occurred; action taken including documentation of notification of the responsible party and attending physician if appropriate; and final disposition that indicates the resident's condition has stabilized and/or is resolved. The final disposition shall include the date and time of entry, resident's vital signs and description of the resident's present health condition. The incident report shall be completed under the direction of the director of nurses or individual in charge of the shift of duty at the time the accident or incident occurred. (ii) For incident reports describing incidents not involving residents, names of individuals involved; date; time; witnesses (if witnesses were present); description of the event or occurrence, including the circumstances under which it occurred; action taken; and final disposition that indicates resolution of the event or occurrence. (D) The facility must investigate incidents/accidents and complaints for trends which may indicate resident abuse (see paragraph (6) of this subsection). Trends that might be identified include, but are not limited to: type of accident, type of injury, time of day, staff involved, staffing level, and relationship to past complaints. (E) The facility must make incident reports available for review, upon request and without prior notice, by representatives of the department. (8) Financial records. (A) Nursing facility staff must maintain current financial records in accordance with recognized fiscal and accounting procedures. The facility must ensure that records clearly identify each charge and payment made on behalf of each resident residing in the facility. The facility must clearly state in its records to whom charges were made and for whom payment was received. (B) The facility must make financial records and supporting documents available at any time within working hours and without prior notification for review by the department. (9) Staff development. Each facility shall implement and maintain programs of orientation, training, and continuing in-service education to develop the skills of its staff (see 40 TAC sec.19.1903 (relating to Required Training of Nurse Aides)). The programs shall meet the requirements described in this paragraph. (A) Orientation, training, and continuing in-service education programs. The following orientation, training, and continuing in-service education programs shall be provided by the facility for its employees. (i) Present employees shall demonstrate and/or submit evidence to the facility training coordinator that they have competency in the skills and have knowledge meeting the requirements of orientation and job-specific training, the same as required for new employees, or shall receive part or all orientation or training as necessary to have such required competency and knowledge. Documentation of attainment of competency and receipt of knowledge shall be on the same report forms as for new employees, those forms being derived from a standard training inventory list prepared by and supplied only in sample form by the department. The facility shall make all necessary copies. The form shall not be modified in any way. The standard training inventory list, referred to as the training inventory list, will be the document used to accomplish the following: (I) to serve as an inventory for determining if more training is needed for present employees, and if so, in what areas; (II) to determine the level of training success for each employee; and (III) to point out employees who fail to adequately complete training and who must receive all or part of the orientation or training again as necessary to gain required competency and knowledge. (ii) The orientation section of the training inventory list will be the same for all employees. Each job-specific area will be covered by the training inventory list. The inventory list will be administered by the facility training coordinator or by the appropriate and competent person named to carry out or assist in carrying out the training program. The administrator of the inventory list must be closely familiar with the actual training each individual taking the training inventory list has undergone. (iii) New employees shall receive orientation and job-specific training, of the content and scope as specified in this paragraph and as approved by the department. On completion of the training, the employees shall be tested by the required inventory list, except for those nurse aides enrolled in an approved training course or who are on the required nurse aide registry. (iv) Both new and present employees must receive continuing in-service education of content and scope, as it relates to the job category involved and as approved by the training coordinator. (v) Employees involved include the following. (I) Employees included are those having responsibility for any part of the care given to residents and who have any contact with residents. Licensed and degreed personnel will not be required to meet the job-specific requirements of this paragraph for these training programs, but will be included in training required for all employees under the orientation provisions in this subparagraph. (II) Orientation is required for all employees, except the administrator. The employee categories requiring job-specific training and continuing in-service education to their respective jobs are nursing, dietary, janitor/housekeeper, activity-social service, and clinical records. (-a-) For the purpose of this subparagraph, a medication aide is considered a nurse aide and must receive the same training as the nurse aides in orientation, job-specific training, and continuing in-service education. The continuing in- service education requirement for nurse aides in this subparagraph may not be used for renewal as a medication aide. (-b-) Administrators licensed by the Texas Board of Licensure for Nursing Home Administrators and administrators-in-training under the auspices of that board are not included. Consultants and subcontract personnel who are not employees of the facility are not included. (-c-) A person who is employed as a food service supervisor and enrolls in an approved food service supervisor course within 90 calendar days after the date of employment, is not required to receive the dietary job-specific training. (-d-) Activity directors who meet the requirements for activity directors under 40 TAC sec.19.502 (relating to Activities), are excluded from the job- specific training. (-e-) Job-specific training is not required of nurse aides enrolled in an approved training course or who are on the nurse aide registry. (III) The administrator shall be responsible for determining that employees who come from outside placement resources have been adequately trained to perform the job which they will occupy in the facility. Outside placement resources would include contract personnel, registry personnel, agency pools, and temporary help placement agencies. Orientation programs for such individuals may be conducted at the discretion of each facility. Facility administrators shall request outside placement resources to provide documented evidence that their personnel have successfully completed the required training. (vi) As part of orientation, each employee must receive instruction regarding the Human Immunodeficiency Virus (HIV) as outlined in the educational information provided by sec.98.70 of this title (relating to Model HIV/AIDS Workplace Guidelines). At a minimum the HIV curriculum must include: (I) modes of transmission; (II) methods of prevention; (III) behaviors related to substance abuse; (IV) occupational precautions; (V) current laws and regulations concerning the rights of an AIDS/HIV-infected individual; and (VI) behaviors associated with HIV transmission which are in violation of Texas law. (B) Facility training coordinator. (i) The administrator of the facility shall designate in writing a facility training coordinator to organize, oversee, and coordinate the facility's program of orientation, job-specific training and continuing in-service education. The training coordinator shall engage the services of appropriate and competent persons to carry out or assist in carrying out the programs. The coordinator, based on his own instruction, or by recommendation of the instructors or trainers involved, shall determine the status of all employees, new and present, with respect to training programs, training needs, and competencies. The coordinator will be held responsible for checking or causing to be checked the credentials of persons being trained. (ii) A training coordinator may serve more than one facility as long as the training program requirements are met. As the training coordinator will be responsible for the training of all employee categories, that person shall be a professionally or vocationally licensed person in health care or shall hold a Bachelor's Degree from an accredited college or university. Ideally, the training coordinator will have had training or experience in adult education and in the general area of health care. (iii) To assure that the overall quality of service provided by the facility is not lessened, the facility administrator and director of nurses are not to serve as the training coordinator. (C) Methods acceptable. (i) It is the intent of the department to accept various methods by which a facility may accomplish its training and in-service education programs as long as the employees receive the training and education necessary to achieve the competencies and proficiencies outlined in the training inventory list within the required total timeframes. Programs may be conducted in the facility, in a school or college, or elsewhere. Instructors may be consultants, qualified facility employees including the training coordinator, persons from outside the facility or representatives of schools or other organizations, as engaged or approved by the training coordinator. Facility employees with other duties may be used in training programs as long as their other required duties are not adversely affected. (ii) A facility consultant may teach the continuing in-service education required by this program and count that as part of the time spent in consultation. The time a consultant may use teaching in orientation or job- specific training may not be counted as time spent in consultation. (iii) Any generally recognized training technique may be used, including, when appropriate, demonstration and learning-by-doing while actually on the job. In teaching technical and nursing care of the elderly and other residents of the facilities, consideration shall be given in all such subjects to the psychological and social needs of the residents. (iv) If the facility chooses to purchase training from a college, school or other institution, to meet these requirements, the course must be approved. For a college, school or other institution to acquire approval, it must submit a letter of intent or training outline it will use to the department for approval. If the college, school or other institution uses the material suggested by the department, it may submit a letter of intent to the department. In either case, it is the facility's responsibility to determine that the college, school or other institution has a current approval from the department. The department will maintain a current list of approved training institutions. Health care facilities shall have open access to that list. (D) Program teaching outline. (i) New employee training requirements are as follows. (I) New employee orientation and job-specific training shall meet the requirements specified in subparagraph (A) of this paragraph, concerning general description of orientation, training, and continuing in-service education programs. The training for an employee shall include information not less than that specified for the category or subcategory applicable to the employee in the basic teaching outlines included as part of these sections. (II) If a facility has a policy prohibiting a skill to be performed, that facility may exclude the training for that skill. Similarly, if a facility has no residents requiring a certain skill, that facility may exclude the training for that skill. In both cases, documentation to this effect shall be made on the individual's training inventory list. (III) Each facility shall submit a letter of intent which shall include an outline of the subject matter (if different from the one suggested by the department), and the date of implementation of the training. The substituted teaching outline is subject to approval by the department. A copy of the department's basic teaching outline and suggested plan for implementing the training program will be furnished to each facility; additional copies may be reproduced by the facility. The minimum subject requirements of training for each category are shown in the department's basic teaching outline, and it is expected that each individual subject in each category will receive an appropriate amount of time. Appropriate learning-by-doing, when supervised by the training coordinator, or the person designated by the training coordinator, may count toward job-specific training. Such training may be subject to monitoring and approval by the department. (ii) Continuing in-service education subjects shall relate to the job category involved and be as approved by the training coordinator. (E) Schedule of training and continuing in-service education. (i) The facility must provide all new employees with a full orientation within 10 working days of employment. The remainder of the training required on the outline for each of the respective job categories shall be completed within 120 calendar days following the 10 working day orientation. (ii) Continuing in-service education requirements are as follows. (I) Each new and present employee shall secure or receive the numbers of hours of continuing in-service education per year as appropriate to his or her specific job, but not less than the following: (-a-) licensed nursing personnel and nurse aides-two hours per quarter; (-b-) food service supervisors, cooks and helpers, dietary aides-two hours per quarter; (-c-) housekeepers, janitors, laundry workers-one hour per quarter; (-d-) activity staff-one hour per quarter; (-e-) social services staff-one hour per quarter; and (-f-) medical record clerks-one hour per quarter. (II) Annual in-service training on rehabilitation nursing procedures, the use of restraints, and the promotion of a restraint-free environment must be given to all nursing personnel. (III) In addition, all facility employees shall receive annual in-service on the following: (-a-) the proper technique for prevention and control of infections; (-b-) fire prevention and safety; (-c-) accident prevention; (-d-) confidentiality of resident information; (-e-) preservation of resident dignity, including protection of privacy and personal and property rights; (-f-) HIV as outlined in subparagraph (A)(vi) of this paragraph; and (-g-) services to residents with cognitive impairments. (IV) The Quality Assessment and Assurance Committee as described in paragraph (6) of this subsection shall assist in identifying additional topics for continuing in-service education. (V) When related to the employee's respective job, attendance at outside meetings or seminars may be used to satisfy the continuing in-service education requirement for a maximum of four quarters. The facility shall keep records of the total number of hours of in-service education for all employees in the facility as well as records of attendance of each individual employee. (iii) If present employees have to meet the same requirements as new employees, documentation covering these requirements shall be recorded on the same training inventory list and other report forms, as are used for new employees. (iv) Job interruption for any reason, including leave of absence, will cause a suspension of the minimum training time. The training time restarts immediately upon the renewal of active employment. (v) Part-time employee requirements are as follows. (I) Part-time employees shall be included in orientation and their respective job-specific training and continuing in-service education. (II) Additional time may be allowed for the completion of both the orientation and job-specific training for part-time employees. The number of hours worked will determine the time allowed for completion of training. Orientation must be completed within 10 working days of employment, and job-specific training must be completed within 120 calendar days following the 10-working day orientation. (F) Employees already trained or partly trained when employed. New employee requirements are as follows. (i) Any new employee who has already met all the training requirements or has had similar training, or six months previous employment in a health care facility, and presents verification of previous experience need undergo only that part of training which would relate to orientation and/or specific training peculiar to the facility. To receive credit for all or any completed portion of past training, the employee must be able to offer documented evidence in the form of copies of records of subjects completed in the facility of former employment or demonstrate skill competency to the training coordinator. In either instance, the training inventory will be used as the record for documenting credit. (ii) Any new employee that has had at least six months previous experience in a health care facility may demonstrate competency to the training coordinator. The required training inventory list will be administered by the facility training coordinator or by the appropriate and competent person to determine if more training is needed, and if so, in what areas. The employee's previous service dates are to be verified by the former employer, and this documentation included in the employee's training record. (G) Assurance of training effectiveness. The training coordinator is to assure himself/herself that the employee being trained is in fact receiving the knowledge and attaining the skills in accordance with the intent of the program. The department will provide samples of the required standardized training inventory list. The training coordinator may develop examinations or other tests of skills or knowledge; but such tests shall not be used in lieu of the required standardized training inventory list. (H) Records. (i) Each facility shall keep appropriate records on each employee who must be involved in training and education programs. The records shall show the status and progress of each employee with reference to his or her required training and shall denote completion and show the date of completion of the appropriate training. An employee is not eligible to receive a record of completion of job- specific training until the required course work is completed and the training coordinator is satisfied appropriate skill levels are attained. Thus, the awarding of a completion record may take as long as 120 calendar days for an employee. (ii) Copies of all records and training inventory lists will be maintained in employee files. However, when the training is provided by a school, college, or other educational institution approved by the department, those records and training inventory lists need only be maintained by the training institution. Training inventory lists and records pertaining to orientation will in all cases be maintained by the facility. A record or report from an educational institution attesting that a student has successfully completed a training course will be acceptable to the department, but such record or report must be available in the facility involved for review by the department. Records of a student or graduate of an educational institution will be made available to the student or graduate on his or her request in accordance with policies of the institution. When an employee terminates employment in a facility, on that employee's request, the facility shall provide that employee with a copy of his or her training inventory list and/or other documentation showing his or her status with respect to required training. Such records shall be shared with another facility on request of the employee. All records shall be made available to representatives of the department. The facility shall also have a record showing the designation of the training coordinator by the administrator and a resume or curriculum vitae of the coordinator. (I) Employees changing positions within the facility. An employee changing position within a facility will be considered as a new employee with respect to the new position, and will be subject to being provided with any additional training that would be required for the category or sub-category of the new position within the total minimum training time for that job category or sub- category. (J) Monitoring and assistance by the department. Each facility shall maintain not less than a 30-day advance schedule of training classes. This shall not apply for classes being taught by a college, school, or other institution, where the advance scheduling becomes the responsibility of that institution. The department will offer assistance in organizing and maintaining training programs, or in orienting training coordinators, to the extent department staff and funds permit. (10) Services provided by order of physician. Nursing facility administrators are responsible for assuring that all medical or medical support services provided to a resident in the nursing facility are ordered by the treating physician. (p) Availability of adoption by reference material. (1) Copies of all of the documents adopted by reference in this section may be reviewed during regular business hours in the Bureau of Long-Term Care, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756. (2) Copies of all the documents adopted by reference in this section can be reviewed in state libraries. sec.145.42. Standards for Facilities Serving Persons with Mental Retardation or Related Conditions. (a) Purpose. The purpose of this section is to promote the public health, safety, and welfare by providing for the development, establishment, and enforcement of standards: (1) for the habilitation of persons based on an active treatment program in institutions defined and covered in this section; and (2) for the establishment, construction, maintenance, and operation of such institutions which view mental retardation and other developmental disabilities within the context of a developmental model in accordance with the principle of normalization. (b) Philosophy. Facilities regulated by the standards in this section are known as facilities serving persons with mental retardation and related conditions in Texas (MR facilities). Persons in these facilities have the same civil rights, equal liberties, and due process of law as other individuals, plus the right to receive active treatment and habilitation. Facilities shall provide and promote services that enhance the development of such individuals, maximize their achievement through an interdisciplinary approach based on developmental principles, and create an environment, to the extent possible, that is normalized and normalizing. (c) Standards. Each facility serving persons with mental retardation or related conditions shall comply with regulations promulgated by the United States Department of Health and Human Services in Title 42, Code of Federal Regulations, Part 483, Subpart D, sec.sec.483.400-483.480, titled, "Conditions of Participation for Intermediate Care Facilities for the Mentally Retarded." (d) Precertification training conference for new providers of service. Each new provider must attend the precertification/prelicensure training conference prior to licensing by the Texas Department of Health (department). The purpose of the training is to assure that providers of services are familiar with the licensing requirements and to facilitate the delivery of quality services to residents in facilities serving persons with mental retardation or related conditions. (1) A new provider is an entity which has not had at least one year of administering services in a facility serving persons with mental retardation or related conditions in Texas. All new providers must attend a precertification training conference prior to the life safety code survey. (2) Each new provider must designate at least one individual who will be involved with the direct management of the facility to attend the training conference prior to a health survey being scheduled. (3) Each new provider will be given a training schedule. The department will schedule training sessions, and the date, time, and location of the training will be indicated on the schedule. (e) Additional requirements. (1) The facility must develop and implement policies and procedures regarding injuries, accidents, and unusual incidents which involve or affect residents. These policies and procedures shall include the following provisions. (A) An investigation and report shall be completed which describes the circumstances of the injury, accident, or incident and its cause, the results of the investigation, and recommended actions. Serious injuries, accidents, or unusual incidents shall be reported to the resident's responsible parties and to the department. (B) Allegations of abuse, neglect, or other mistreatment of residents shall be reported in accordance with Subchapter G of this chapter (relating to Abuse, Neglect, and Exploitation; Complaint and Incident Reports and Investigations). (2) In the area of behavior management, seclusion of residents shall not be used. Seclusion is defined as placement of a resident in a room without staff present from which egress is prevented by a locked door. (3) In the area of physical restraints, the following applies. (A) When physical restraints (mechanical and/or manual) are used as an integral part of an individual program plan that is intended to lead to less restrictive means of managing and eliminating the behavior for which the restraint is applied, a physician must participate on the interdisciplinary team that authorizes the use of restraint and must concur with the team's decision concerning its use. (B) When physical restraints are used as an emergency measure to protect the resident or others from injury, a physician must authorize its use or the extension of its use. (4) In the area of pharmacy services, the following applies. (A) All pharmacy services shall be in compliance with the Texas State Board of Pharmacy requirements, the Texas Pharmacy Act, and rules adopted thereunder, the Texas Controlled Substances Act, and Health and Safety Code, Chapter 483 (relating to Dangerous Drugs). (B) All medications must be ordered in writing by a physician, dentist, or podiatrist. Verbal orders may be taken only by a licensed nurse, pharmacist, or another physician, and must be immediately transcribed and signed by the individual taking the order. Verbal orders must be signed by the physician, dentist, or podiatrist within seven working days. (C) The facility, with input from the consultant pharmacist and physician, must develop and implement policies and procedures regarding automatic stop orders for medications. These procedures must be utilized when the order for a medication does not specify the number of doses to be given or the time for discontinuance or re-order. (5) Specialized nutrition support (delivery of parental nutrients and enteral feedings by nasogastric, gastrostomy, or jejunostomy tubes, etc.) must be given in accordance with physician's orders by a registered or licensed nurse. (6) In the area of administration of medication, the following applies. (A) Medications may be administered only by physicians, licensed nursing personnel, permitted medication aides, or persons who are exempt from licensure or permit requirements pursuant to the Health and Safety Code, sec.242.1511. These persons must function in accordance with the memorandum of understanding (MOU) between the Texas Department of Health and the Board of Nurse Examiners and/or Board of Vocational Nurse Examiners. The department adopts the MOU by reference and copies are available for review at the department's Bureau of Long-Term Care, 1100 West 49th Street, Austin, Texas 78756. (i) The individual who removes the medication dose from the container in which it was dispensed must administer the dose. (ii) The individual who administers the medication must record the dose after it is administered and during the shift in which it was given. (B) Residents who have demonstrated the competency for self-administration of medications shall have access to and maintain their own medications. They shall have an individual storage space that permits them to store their medications under lock and key. (C) Residents may participate in a self-administration of medication habilitation training program if the interdisciplinary team determines that self-administration of medications is an appropriate objective. Residents participating in a self-administration of medication habilitation training program shall have training in coordination with and as part of the resident's total active treatment program. The resident's training plan shall be evaluated as necessary by a licensed nurse. The supervision and implementation of a self- administration of medication habilitation program may be conducted by nonlicensed personnel and is not limited to personnel who have completed an approved training program in medication administration. (7) In the area of communicable diseases, the facility shall have written policies and procedures for the control of communicable diseases in employees and residents. When any reportable communicable disease becomes evident, the facility shall report in accordance with Communicable Disease and Prevention Act, Health and Safety Code, Chapter 81, or as specified in sec.sec.97.1-97.13 of this title (relating to Control of Communicable Diseases) and sec.sec.97.131- 97.136 of this title (relating to Sexually Transmitted Diseases) and in the publication titled, "Reportable Diseases in Texas," Publication 6-101a (Revised 1987). The local health authority should be contacted to assist the facility in determining the transmissibility of the disease and, in the case of employees, the ability of the employee to continue performing his/her duties. The facility shall have written policies and procedures for infection control, which include implementation of universal precautions as recommended by the Centers for Disease Control (CDC). (8) The facility must develop and implement written procedures pertaining to recreational water activities for all sites accessed by the facility. These procedures must minimally include the following provisions. (A) A minimum of one individual with demonstrable proficiency in water safety skills must be on duty at all times when residents are utilizing a swimming pool, lake, or other aquatic environment which could pose a risk of drowning. The individual must be familiar with basic water survival skills, and must maintain supervision of the water activity for the duration of the activity. (B) A description of each aquatic environment must be accessed by the facility that includes identification of those aquatic environments which could pose a risk of drowning. The determination of risk for each aquatic environment identified must be based on a documented functional assessment of each resident's knowledge of basic water safety survival skills and ability to swim, and a documented review for each resident who chooses or may choose to attend recreational water activities must be available in the resident record. The review must identify any medical conditions or physical disabilities which could increase the risk of drowning in the identified aquatic environments. (C) Based on individual resident characteristics and the aquatic environment to be utilized, the facility must determine the minimum staff to resident ratio necessary to assure the safety and supervision of all residents in circumstances which pose a risk of drowning. (Parents and volunteers may be counted in the staff ratios if they have been trained in the facility's water activity procedures.) Staff to resident ratios must be sufficient to assure constant visual supervision of all residents who are not independent swimmers and/or who have a history of seizures within the previous 12 months. The individual with a demonstratable proficiency in water skills required in subparagraph (A) of this paragraph may not be counted in staff to resident ratios. (D) All personal flotation devices utilized must be approved by the United States Coast Guard or be a specialized therapy flotation device utilized for a resident's individual therapy program. (E) Each resident's individual program plan must include information with regards to the resident's water safety skills, the staff to resident ratio needed to provide adequate supervision in circumstances which pose a risk of drowning and designate when a personal or specialized therapy flotation device is to be utilized. sec.145.43. Standards for Maternity Facilities. (a) Purpose and scope. The purpose of this section is to promote the public health, safety, and welfare and provide for the development, establishment, and enforcement of standards in maternity facilities (facilities); for the care of individuals in the facilities; and for the establishment, construction, maintenance and operation of the facilities which will promote safe and adequate care of individuals in the facilities. (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Client-A pregnant woman; or a woman regardless of age, who has within two weeks had a child born to her and who is registered with a licensed maternity facility; and who may or may not be considering the placement of her child for adoption. (2) Facility-A maternity facility as defined in this section. (3) License-An annual license issued by the Texas Department of Health (department). (4) Maternity facility-Any place, agency, or establishment providing any or all of the following: residential (domiciliary or private) care; health care; and counseling services to the client, as provided in the Health and Safety Code, Chapter 242. (5) Physician-A physician licensed by the Texas Board of Medical Examiners. (6) Shall-Required and essential for the client's welfare and having the force of law. (7) Should-The desirable standard of performance. (c) General requirements. (1) A facility shall be restricted to the care of maternity clients. Persons having or suspected of having any physical or mental disease or disability endangering the health and welfare of other clients may be admitted to residential care upon both medical advice and facility evaluation. (2) Each licensed facility shall specify the maximum allowable number of clients to be cared for at any one time. No greater number of clients shall be kept than is authorized by the license. (3) The facility license shall be conspicuously posted in the area where clients are admitted. (4) Copies of this section shall be on file in the facility and shall be available to facility personnel. They shall be instructed in the requirements of the law and the rules pertaining to their respective duties. (5) Each facility shall have a working arrangement with a licensed hospital for obstetric and pediatric care for the client. It is desirable that each facility have a working arrangement with an accredited hospital. (6) The purpose of a facility shall be to meet the individual needs of the client, the father of her child, and their families. (7) Facility services shall include the following: (A) casework, which shall include: (i) casework services which shall be provided according to case load standards of the National Association of Social Workers and should be offered as long as advisable; and (ii) evidence of a working affiliation with a state licensed child placing agency; (B) educational, vocational, and recreational activities which should be planned according to the individual needs of the clients and should include: (i) formal academic instruction; and (ii) vocational guidance and social opportunities; (C) the opportunity for religious activities and spiritual counseling which shall be offered to the client; (D) health care services which shall be provided to each client in accordance with these sections and the current manual of standards in obstetric-gynecologic practice of the American College of Obstetricians and Gynecologists; and (E) legal services in that the facility shall have available an arrangement with the legal profession to assure legal counsel to the client as needed. (d) Eligibility for licensure. (1) Each applicant for a license to operate a facility shall furnish upon a suitable form made available by the department certain information, facts and references that will attest to the moral character, stability, financial responsibility, and physical and mental capability of said applicant to conduct the operations of a facility pursuant to the standards in this section. Such attestation shall be given in the form of a affidavit and shall be a prerequisite to licensing. (2) The submission, knowingly, of false information by any applicant to said affidavit shall constitute grounds for the denial or revocation of state license to operate. (3) The use of subterfuge or other evasive means such as filing for license through a second party when an individual is disqualified for licensing shall constitute grounds for the refusal or revocation of a state license to operate a facility. (4) Habitual drunkenness, addiction to narcotics, disorderly conduct, or the violation of any law involving moral turpitude on the party of the owner, manager, operator or employee engaged in the operations and functions of a facility shall constitute grounds for withholding or revoking State license to operate. (5) Consuming alcoholic beverages on the premises or while on duty in a licensed facility by the owner, manager, operator, or employee of a licensed facility shall constitute grounds for revoking the state license issued for the operation of the facility. (e) Personnel. (1) Each facility shall provide at all times at least one responsible adult who is immediately available to the clients. (2) At all times there shall be enough personnel to provide the standards of care and maintenance in the facility for the well-being of the clients. A record shall be kept of the period of service of each employee, as well as daily shift records, and such records shall be subject to inspection by the Texas Department of Health (department). (3) At the discretion of the department, any owner, manager, operator or employee of a facility may be required to secure an adequate examination of themselves by a physician and secure in evidence thereof, a statement signed by such physician to the effect that such an examination had been made and that to the best of his or her knowledge, the person examined was found on that date to be free of any transmissible condition of any disease and any physical or mental debility which would preclude the person examined from discharging his or her duties proficiently in the home. Such examination shall be actual and thorough and conducted within the framework of practical scientific procedures for the determination of the existence of communicable disease or gross physical or mental debility. A pre-employment physical examination and interim examination as may be necessary of all personnel should be required and should include a tuberculin test or chest x-ray for tuberculosis and tests for syphilis and gonorrhea. (4) Personnel shall include such professional staff as necessary to assure adequate care of the clients accepted by the facility. Medical, dental, nursing, nutrition, and social work services are necessary components of maternity care and shall be a direct or consultation service of each facility. (5) Personnel required to maintain standards of care for clients shall be employed directly or made available through cooperation of other agencies in the community. (6) The executive director of a facility shall have completed 120 semester hours in a recognized college or university and have two years of experience in the field of public administration. Additional experience may be substituted for training year for year with a maximum substitution of four years. (7) The director of social services in a facility shall have social work education with a masters degree (MSW) and at least three years professional experience in casework and/or supervision. (8) Each facility should have a professionally trained social worker with a MSW degree to provide supervision of workers with less educational background and/or experience but with a bachelor's degree. (9) There should be one caseworker to every 30 clients. (10) There should be a group worker on the staff of the facility and each facility should strive to achieve a professionally trained group worker with an MSW degree. (11) The junior caseworker should have one year of formal education in a school of social work. The second year may be supplemented by experience which consists of 300 hours of actual practice under supervision of an accredited social worker. On-going supervision in the facility should be performed by an accredited social worker with an MSW degree. (12) A graduate registered nurse (R.N.) licensed to practice by the Texas Board of Nurse Examiners shall be available to give nursing supervision and consultation to each licensed facility. (13) There should be housemother(s), housekeeper, food service staff and maintenance staff to carry the responsibility of housekeeping, food service and maintenance. (14) There shall be a qualified medical staff for health care depending upon the type service offered by the facility. (15) There should be a qualified dietitian to direct and supervise the food service, plan menus to meet nutritional needs of the clients, plan therapeutic diets for clients under physician direction when necessary. A qualified dietitian has a college degree and advanced education or experience in foods and nutrition and is a member of the American Dietetic Association. (f) Sanitation. (1) The water supply shall be of safe, sanitary quality, suitable for use, and shall be obtained from a water supply system, the location, construction, and operation of which are acceptable to the department. Hot water of a temperature safe to use for handwashing shall be available at sinks and lavatories at all times. (2) Sewage shall be discharged into a municipal sewerage system where such a system is available; otherwise, the sewage shall be collected, treated, and disposed of in a sewage disposal system which is acceptable to the department. (3) The plumbing and drainage, or other arrangements for the disposal of excreta and wastes shall be acceptable to the department and comply with the provisions of the local plumbing codes where available. (4) When flies, mosquitoes, and other insects are prevalent, all outside doors, windows, and other outside openings shall be screened with wire screen or its equal with not less than 16 meshes to the inch. (5) Toilets shall be provided in number ample for use according to number of clients and personnel of the facility. A minimum requirement is one water closet and one handwashing lavatory for every six clients, preferably for every four clients, or fraction thereof, and additional water closets and lavatories when deemed necessary by the department. Hand grips should be added to toilets. (6) A shower shall be provided in the ratio of at least one shower for each 10 clients, or fraction thereof. Hand grips shall be provided for the bathtubs and all existing bathtub-shower combinations shall be provided with nonskid devices. (7) All accumulated soiled dressings and other waste materials shall be stored in adequate clean covered containers and disposed of in a manner acceptable to the department. (8) The outside grounds and surroundings of the buildings shall be maintained in a clean and sanitary condition at all times. The premises and buildings shall be kept free from rodent and insect infestations at all times. (9) The facility shall comply with departmental rules regarding special waste in sec.sec.1.131-1.137 of this title (relating to Definition, Treatment, and Disposition of Special Waste from Health Care Related Facilities). (g) Furnishings and Equipment for Care. (1) The facility shall provide the following items to each client: (A) a comfortable and suitable individual bed at least 36 inches in width with springs and a clean firm mattress. Clean bedding and bed linen shall be kept on hand for use at all times. Bed linens should be changed at least weekly. Clean blankets and a mattress pad should be provided each new occupant. Waterproof protection should be provided for all pillows and mattresses; (B) at least one comfortable easy chair. Easy cleanable waterproof covering of chair is recommended; (C) a locker, closet, or other suitable enclosed space for storage of clothing. If a common closet is used for two or more persons, there shall be separation of clothing for each person; (D) available drawer space for clients' personal possessions in each living area; and (E) individual towels and washcloths in sufficient quantity. (2) The facility shall maintain first aid supplies in a place known to and readily available to all personnel responsible for the health or well-being of clients and include a sterile emergency delivery pack. (3) The facility shall provide handwashing facilities with approvable controls as indicated by the department and readily available to physicians, nurses, and other personnel attending clients. Fresh linen or paper towels shall be available at all times. Use of a common towel is prohibited. (h) Laundry. (1) Linen and other washable goods shall be stored and cleaned in a manner acceptable to the department. (2) If linen and other washable goods are laundered in the facility a separate suitably located laundry room shall be provided in the facility and it may be used only for the cleaning of linens and other washable goods used by the facility. Personal laundry facilities are essential for use of clients in the facility. (3) The laundry room shall be adequately screened and protected to prevent access of flies and vermin. (4) All waste water resulting from operation of laundry machines shall be discharged into the public sewerage system and if a public sewerage system is not available, such waste water shall be disposed of in accordance with department recommendations. (i) Provisions for recreation. Facilities for recreational, visiting, occupational therapy, and other such purposes of sufficient area should be provided and should be freely available at reasonable times to clients and visitors. (j) Food service and food sanitation. (1) Food shall be provided to all clients in an amount and kind to meet individual needs and to conform to the daily dietary allowances of nutrients recommended by the National Research Council for Pregnant and Lactating Women. Such food shall be provided in three substantial meals at regularly scheduled meal hours and/or between meal feedings. Modified diets prescribed by the physician shall be provided to the individuals for whom such diets are prescribed. (2) All food services and food sanitation should comply with the current food service sanitation manual of the United States Department of Health, Education, and Welfare. (3) No drugs and other nonfood items such as sprays, waxes, cleaning compounds shall be stored where food is also stored in refrigerator, cabinets, shelves, or pantry. (4) Invoices covering all food purchases and copies of menus served shall be kept on file in the facility and shall be available to representatives of the department. (5) All fluid milk for use shall be in conformity with the requirements prescribed by the State Milk Grading and Labeling Law and department rules adopted thereunder. (6) Ice used in contact with food or drink shall be obtained from a source acceptable to the department and handled and dispensed in a sanitary manner. (7) A kitchen for the proper preparation and serving of food shall be maintained in a room or rooms separate from the dining room and other rooms. It shall be used for no other purpose than activities connected with the dietary service and the washing and storage of dishes and utensils. (8) Handwashing facilities with hot and cold water, soap, and single service towels or other hand drying facilities approved by the department shall be accessible for use of all food handlers. (9) Perishable food shall be stored in clean refrigerators of adequate capacity at temperatures less than 50 degrees Fahrenheit. Each refrigerator shall be equipped with a thermometer. Nonperishable food shall be stored off the floor in clean well ventilated rooms free of insects and rodents. (10) Garbage shall be disposed of in a manner acceptable to the department. When stored, it shall be retained in water tight metal cans equipped with tightly fitting metal covers. All containers for the collection of garbage and refuse shall be kept securely covered in a sanitary manner. (11) The following procedures shall be employed in the cleaning and sanitizing of dishes and utensils used in food services. (A) No client shall be furnished with any dish, receptacle, or utensil used in eating, drinking, or conveying food unless such dish, receptacle, or utensil has been washed after each service until clean to the sight and touch in warm water containing soap or alkali cleaner. (B) After washing, all glasses, dishes, silverware, and other receptacles and utensils shall be: (i) immersed in clear water heated to a minimum temperature of 170 degrees Fahrenheit for at least three minutes or two minutes at 180 degrees Fahrenheit; (ii) immersed for at least two minutes in a lukewarm chlorine bath containing at least 50 ppm of available chlorine if hypochorites are used, or a concentration of equal bactericidal strength if chloramines are used; or (iii) sterilized by any other chemical method approved by the department. (C) In order to protect the clean dishes and the utensils from contamination, proper storage space shall be provided. (k) Reports and records. (1) Because of the confidential nature of facility care, the admission, medical, and social work records shall be maintained and used only by those responsible for the care of the clients and shall not be open for inspection by others except under special conditions. (2) Admission, medical, labor, delivery, newborn (especially identification) and social work records shall be kept. Such records shall be preserved. When a facility is closed or ownership is being transferred, the licensee shall apply to the department for instructions as to disposition of such records. (3) Physician's orders shall be preserved with the permanent record of the client. (4) There should be a dated, signed list, made in duplicate, of all personal belongings and valuables upon the admission of each client. Corrections should be made to the list as necessary. The original list and all corrections made should be given to the client, her guardian, or the agency responsible for her care and a copy kept on file in the facility. (5) Each licensed facility shall prepare in written form and make available for distribution a general statement of policies governing the operation of the home, and the guardian or person placing the client in the facility shall be furnished a copy of said policy. The statement of policy shall cover such matters as type of clients accepted in the facility, responsibility for medical care and medications, rules and regulations related to client management, charges for services and refund policy. A copy of the policy statement shall be placed on file with the department and shall also include: (A) legal status constitution and by-laws; (B) organizational structure; (C) income, including fees; (D) current facility program budget; (E) staffing and personnel policies; (F) type of facilities and size; (G) future plans; (H) recordkeeping system; (I) staff development; (J) affiliations; and (K) program, philosophy, and procedures. (l) Health care services. (1) The client or the client's parents or guardian shall designate a physician licensed by the Texas State Board of Medical Examiners or sign a statement to permit the physician(s) designated by the facility to provide medical care. (2) Each facility shall provide the following: (A) a physical examination for each client within 48 hours unless the facility has received from a licensed physician a statement of the client's physical examination and diagnosis dated not earlier than 30 days prior to the client's admission to the facility. The client's record shall include the history, a physical examination, and laboratory tests recommended by the current manual of standards of the American College of Obstetricians and Gynecologists; (B) subsequent prenatal supervision for clients in accordance with the standards of the American College of Obstetricians and Gynecologists; (C) hospitalization for delivery and immediate postpartum care; (D) diagnosis and treatment of medical problems related to pregnancy including medical and surgical emergencies; (E) dental examination and emergency treatment; and (F) postpartum, convalescent care for the client shall be provided by the facility for a minimum of eight days. It shall be the responsibility of each facility to refer each client for a postpartum examination unless such examination has been given prior to her dismissal from the facility. (3) No medication or treatment shall be given to a client in a facility except on written order signed by a physician. If an emergency arises and instructions are given verbally, such instructions shall be followed by written order, signed by the physician and filed with the director of the facility within 24 hours. (4) Every facility shall designate one or more physicians to be called for emergencies. (m) Control of communicable diseases. (1) Each licensed maternity home shall exercise maximum protective practices in handling communicable diseases. Proper isolation techniques must be observed in order to protect other clients in the facility. (2) In facilities with nursing service, isolation should consist of private rooms, individual supplies and equipment, supervision and on the job training of personnel, and limitation of contacts. (n) Humane treatment of clients. (1) Restrictive rules shall be kept to a minimum. While some are necessary in group living to maintain a balance between individual wishes and group welfare, they shall not infringe upon the client's right to self-determination, privacy of personal thought, and personal dignity. General rules affecting all clients shall be based on the premise that clients have the capacity to function as individuals commensurate with their age level. (2) Abuse or punishment of clients in the home will not be tolerated. Substantiated evidence of the owner, operator, or any staff member willfully inflicting injury, physical suffering, or undue mental anguish on any client in the home shall constitute grounds for revocation of license. (3) Each client shall have unlimited freedom to leave the facility upon proper discharge at any time. However, a facility may establish reasonable rules whereby the clients are limited in their leaving the facility so long as they remain resident subject to the facility's jurisdiction. (4) Each client shall be allowed to manage her own money and the licensee or any member of the staff of the facility may not serve as guardian. (5) Each client shall have the right to participate in, or abstain from religious observances as she chooses. If dietary abstinences are a part of her religious observance, she shall be provided with religiously acceptable substitutes, provided the forbidden is on the regular menu and constitutes an essential portion of her dietary needs. (6) Each client shall have freedom to receive and send mail unopened and without undue delay. Exception may be made for specific and valid reasons, provided such decision to withhold or censor incoming or outgoing mail is concurred in by the person responsible for placement of that individual in the facility, or the client's physician. (7) Each licensed facility shall establish policies which will permit the individual client to receive visitors. (8) Clients shall have reasonable freedom in choice of clothing when provisions are available for laundry and dry cleaning at the individual client's expense. Beautician services should be made available to the facility for use by those desiring such outside service at the individual client's expense. (9) It is recommended that facility operators provide opportunities for meaningful activities and social relationships. These may include holiday celebrations, parties, indoor or outdoor games, or personal hobbies. Educational or recreational sessions, sponsored by groups within the community should be encouraged and planned for with such community groups or agencies. (o) Narcotics and sedation. Standards in this subsection apply only to facilities providing 24-hour nursing service. (1) When a physician orders narcotics for a client of the home, special safeguards concerning their use are needed. Narcotics shall be kept in a separate locked medicine closet and the key held by the director of the facility or the supervising nurse. (2) Each time a narcotic is given, a notation shall be made on the nursing record including the date, time, dosage and method of administration, the name of the physician who prescribed the drug, and the name of the person administering the narcotic. (3) In any facility holding a narcotics license there shall be a reported and signed narcotic stock count made daily. Unused portions of prescribed narcotics, because of discharge or removal of the client, shall be accounted for in the narcotics records of the facility. (4) Sedation shall be used only upon written order of a physician licensed by the Texas State Board of Medical Examiners and in accordance with the medicinal plan for the individual. However, when an emergency arises and instructions are given over the telephone, such instructions shall be followed up by a written order signed by the practitioner and filed with the director of the facility within 24 hours. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321481 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 834-6770 Subchapter S. Minimum Licensing Standards for Personal Care Facilities 25 TAC sec.sec.145.321-145.335 The repeals are adopted under the Health and Safety Code, Chapter 242, which provides the Board of Health (board) with authority to adopt standards concerning nursing facilities and related institutions; and sec.12.001 which provides the board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321478 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: September 1, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 458-7236 Chapter 146. Personal Care Facilities Subchapter A. Introduction The Texas Department of Health (department) adopts the repeal of existing sections in 25 TAC Chapter 145 concerning personal care facilities and adopts new sec.sec.146.1-146.4, 146.11-146.19, 146.21, 146.41, 146.61-146.63, 146.81- 146. 82, 146.101-146.107, 146.121-146.129, and 146.151-146.156 concerning personal care homes. Sections 146.2-146.3, 146.11- 146.13, 146.16-146.19, 146.41, 146. 61-146.63, 146.81-146.82, 146.105-146.107, 146.123-146.125, 146.151-146.153 are adopted with changes to the proposed text as published in the October 20, 1992 issue of the Texas Register (17 TexReg 7397). Sections 146.1, 146. 4, 146.14-146.15, 146.21, 146.101-146.104, 146.121-146.122, 146.126- 146.129, 146.155-146.156 are adopted without changes and will not be republished. The only section proposed but not adopted is sec.146.20, concerning financial assurances, which the department has withdrawn. The new sections will replace the existing sections on personal care facilities in Chapter 145 that are being repealed in this issue. The department received numerous comments from individuals, groups, agencies and associations concerning the proposed rules. A summary of the comments and the department's responses are as follows. COMMENT: Chapter 146 preamble. Paragraphs 4 and 5 concerning fiscal implications and financial burdens seem to be inconsistent. RESPONSE: The department agrees that clarification is necessary and has modified the rules appropriately. This issue is addressed further in comments to specific sections and the department's responses to those comments. COMMENT: Chapter 146 preamble. Clarify how the department arrived at the $2, 000-$5,000 figure concerning financial assurance and how this requirement can be fair to both large and small businesses. RESPONSE: The department agrees that this issue needs to be clarified and has done so in comments to specific sections and the department's responses to the comments. COMMENT: Chapter 146 generally. Modify the chapter to allow a personal care facility to receive voluntary certification for early-stage Alzheimer's disease and related disorders care. RESPONSE: The department disagrees because the Health and Safety Code, Chapter 247, does not authorize certification for Alzheimer's disease. COMMENT: sec.146.1(a). The purpose states that the rules are intended to promote public health and to provide for the safe care of personal care facility residents; yet, the rules themselves seem to interfere more in business operations rather than be actual "care" rules. The rules should focus more on enforcement or closing those unlicensed homes which truly are a threat and danger to those they purport to serve. RESPONSE: The department's response is that it believes that the rules as written do promote public health and provide for the adequate care of the residents; however, the department has modified and clarified the final rules throughout Chapter 146, as appropriate, in order to strengthen the stated purpose. COMMENT: sec.146.2(a). The scope of the rules indicates that they apply only to facilities that house 4 or more residents. Accordingly, facilities with less than four residents are not covered and anything goes. Such facilities also should be regulated by the department so that the caregivers cannot be allowed to operate without proper knowledge, skill, and supervision. RESPONSE: The department's response is that the Health and Safety Code, Chapter 247, only authorizes the department to regulate only those facilities that house 4 or more residents. As such, the department has no authority to adopt rules regulating facilities with three or less residents. COMMENT: sec.146.2(b)(3)(B)(i). Specify more what types of assistance the facility will provide to the residents. RESPONSE: The department disagrees because the rule covers assistance with meals, dressing, movement, bathing, or other personal needs or maintenance. COMMENT: sec.146.2(b)(3)(C). This rule indicates that if the attending physician does not concur that services beyond facility assistance are needed, the resident or responsible party may make the decision to provide such services. If this is true, then any resident, regardless of condition, may remain in the facility. RESPONSE: The department agrees but emphasizes that the rule still requires the resident to meet the physical characteristics of a personal care resident. No change has been made. COMMENT: sec.146.2(b)(3)(D)(iv). The rule allows a resident to contract for professional medical, nursing, or other care as found in specialized facilities such as hospitals and nursing homes. To what extent may facility staff assist a resident between such contracted professional care? RESPONSE: The department's response is that facility staff can provide personal care services but not medical care. COMMENT: sec.146.2(c)(2). Clarify provision by changing it to read: "A resident may exhibit symptoms of mental or emotional disturbance, but is not considered at risk of imminent harm to self or others". RESPONSE: The department agrees and has made the change. COMMENT: sec.146.2(c)(5). Delete word "occasional" because it adds nothing to rule and could lead to misunderstanding and confusion. RESPONSE: The department disagrees because the word is appropriate to the provision. COMMENT: sec.146.2(c)(9). Clarify requirement by deleting phrase "brief periods of time" because it is not defined. RESPONSE: The department agrees and has deleted the phrase. COMMENT: sec.146.2(c)(11). Clarify provision by changing it to read: A resident may be incontinent without pressure sores. RESPONSE: The department agrees and has made the change. COMMENT: sec.146.3. Concerning the definition of "Controlling person", a commenter recommends deleting the word "not" from the second sentence because all types of ownership should be covered by the rule. Another commenter questions whether anyone owning 5.0% of a business should be considered a controlling person because such a person does not have anything approaching control. RESPONSE: The department's response is that it has decided to replace the definition of "controlling person" with the more appropriate definition of "person with a disclosable interest". Corresponding changes have been made to the definition of "affiliate" and to applicable provisions in the rules. Also, the department has retained the 5.0% ownership requirement in the rules for disclosure purposes. COMMENT: sec.146.3. Delete definition of "Licensing Agency" because it is unnecessary. RESPONSE: The department agrees because the term was changed throughout the rules to the Texas Department of Health for consistency. COMMENT: sec.146.3. Add definition of "Personal Care Administrator" as being the person responsible for the overall operation of a facility. RESPONSE: The department agrees and has made the change. COMMENT: sec.146.3. Concerning the definition of "Service plan," change the term "A written description" to "A documented description." The change will clarify that the service plan does not require an essay type written description. RESPONSE: The department disagrees because the term is clear as written. COMMENT: sec.146.3. Concerning the definition of "Service plan", delete the term "medical care" because it is inappropriate to include medical care in the service plan. RESPONSE: The department disagrees because the service plan should include a written description of the medical care or the supervision and nonmedical care needed by a resident, and this is how the rule is written. COMMENT: sec.146.4. One commenter suggested dividing Type A small facilities into classes 1 and 2 and modifying architectural requirements in Class 1 (10 or fewer beds) to make them slightly more liberal and affordable for providers. This change would not compromise resident safety. Another commenter suggested dividing the facilities into six different types in order to provide a wider range of options for housing that will accommodate the needs of residents with differing functional capacities and be more cost effective. RESPONSE: The department disagrees with both suggestions because this would be a major rule change and the rules primarily are a recodification of existing rules. Also, such changes might conflict with Americans with Disabilities Act requirements. sec.146.4(1). Clients that ambulate and are able to walk out of a facility in case of emergency should be in a Type A, Level I facility. The department disagrees because such a requirement would be inappropriate for a Type A facility. COMMENT: sec.146.11(c). What will constitute "affirmative" action by the applicant to demonstrate compliance with the provisions of this subsection? RESPONSE: The department's response is that an affidavit will suffice; however, the department has clarified the subsection by deleting "change of ownership" in (b) and (c) because the requirement is inappropriate; deleting the requirement in paragraphs (2), (3), and (7) of subsection (c) because it is inappropriate; and changing "controlling" to "disclosable" in paragraph (1) for clarity. COMMENT: sec.146.11(c)(1). One commenter suggests deleting the provisions in sec.146.11(c)(1) concerning convictions because it is unenforceable, does not relate to resident care, and funds are not currently available for the department to investigate the criminal history of the named applicants. Another commenter suggests rephrasing the provision to read, "All employees working on the premises have had no conviction of felony or crime involving moral turpitude in this state or any other state". This commenter believes that funds are not currently available to investigate criminal history of named applicants; that when funds do become available, criminal history checks should be limited to the past five years; and the rule should concentrate on employees and not applicants in order to allow individuals to outlive past mistakes. RESPONSE: The department disagrees with both comments because the rule on convictions is enforceable, it does relate to resident care, and the department will only be asking for an affidavit from the applicant. COMMENT: sec.146.11(c)(2). The financial assurance requirement is unacceptable because it will be very costly, will discourage small homes since they receive no financial support from state or federal contracts, will not adequately describe the financial stability of a facility since this is not a static condition, and does not address outside forces which affect the financial stability of a facility. RESPONSE: The department agrees and has deleted sec.146.11(c)(2). The department has made related changes elsewhere in the rules by deleting sec.146. 13(c)(5) and withdrawing sec.146.20 in its entirety. COMMENT: sec.146.12(4). A problem exists with this provision in that the facility has no jurisdiction over local authorities and thus cannot be assured when they will perform their duties. Remove this problem by adding this sentence at the end of the paragraph: "The facility will not be held responsible for the failure of the local health or fire authority to act within the time specified". RESPONSE: The department disagrees because it does not believe that the suggested addition is appropriate for the rule. COMMENT: sec.146.13(c)(5). The financial resources requirement is unacceptable for the same reasons that sec.146.11(c)(2) is unacceptable. RESPONSE: The department agrees and has deleted sec.146.13(c)(5). The department also has strengthened subsection (c) by adding new paragraph (6) and (7) concerning a certificate of good standing and a certificate of incorporation. COMMENT: sec.146.13(d). What is the general purpose of this requirement? Is this simply to protect the department in case they fail to act on the disclosure in the original application? Does this mean that they are concerned that they may not be able to adequately enforce requirements in processing the original application for license? RESPONSE: The department's response is that the purpose is to examine the track record of applicants to assist the department in determining if an application for a license should be approved. This information is reasonable and relevant; however, the department has made changes to individual paragraphs in subsection (d), as discussed in the following comments. COMMENT/RESPONSE: sec.146.13(d). A number of comments were received about individual paragraphs in subsection (d), as follows: Delete all requirements in paragraphs (1)-(10), as they do not necessarily relate to resident care and are inappropriate. The department disagrees because this information is reasonable and relevant to the operation of a facility. Substitute "Texas" for "in any state" in paragraph (1) because rules differ from state to state and it is unrealistic to compare performance in programs in different states. The department disagrees because performance in other states does relate to ability to perform in Texas. Delete provision on disclosure of federal or state liens and unsatisfied final judgements in paragraphs (4)-(5) because they are a violation of a providers civil rights and a negative intrusion into each and everyone's operation. The department disagrees because this information is relevant, is not a violation of civil rights, and is not a negative intrusion into facility operations. COMMENT/RESPONSE: sec.146.13(d). Additional comments received about this section are as follows. Change five-year period to two-year period in paragraph (5) for consistency with other proposed rules. The department agrees and has made the change. What type of judgments does sec.146.13(d)(5) refer to, and what will be the department's position if a judgment exists but is not yet payable? The department response is that the paragraph covers all types of legal judgments and the conditions of a judgment may be to allow payment over a period of time; such is acceptable to the department. Change "unresolved" to "resolved" in paragraph (9) because a facility should not be penalized until action is final. The department agrees that this paragraph needs clarification but that it is more appropriate to remove the word "final" from the paragraph. Change "facility" to "health care facility" in paragraph (10) for clarity; The department disagrees because "facility" is defined in sec.146.3. Change "facility" to "health care or related facility in Texas" in paragraph (10) because utilizing performance of facilities in other states is unreasonable. The department disagrees because track records in other states are important and relevant; however, the department has clarified the term "facility". The department also has changed "controlling" to "disclosable". COMMENT: sec.146.13(e)(5). The requirement that a provider may not sell 5.0% or more interest in a home or make anyone an officer, director, or general partner without "prior written approval of the department" is an unwarranted invasion of a provider's personal business. Additionally, the rule will cost the state and facility time and money, preclude a publicly held corporation from freeing trading on listed stock exchanges, and could block a privately held corporation from issuing stock to raise needed capital. RESPONSE: The department agrees and has deleted all of proposed paragraph (5). COMMENT: sec.146.13(e)(6). Delete provision that managers must be approved by department because provision authorizes department to screen ownership and the owners should make this decision. Also, the department is not in a position to make such business judgments. Ownership should make this decision and facility performance should be ownership's criteria for making judgment. RESPONSE: The department agrees and has deleted the approval requirements; however, the department has added a provision in adopted sec.146.13(e)(5) about notice of change in a facility manager. COMMENT: sec.146.13(f). The fiduciary exemptions are unreasonable because all ownership should have to comply with the rules, including fiduciaries. RESPONSE: The department disagrees and has retained the exemption; however, the department has added a provision concerning disclosure relating to the manager of a facility. COMMENT: sec.146.16. One commenter suggested deleting the entire section. Another commenter suggested deleting the 60 day requirement because in the real world the seller may not have 60 days in which to notify the department of a sale. Another commenter requested a method to expedite a sale in an emergency, such as when the owner or owners of a business meet an untimely death or become otherwise incapacitated, they would need to be able turn the business over to a prospective purchaser as soon as possible. RESPONSE: The department's response is that the provisions are necessary and that a provision for expeditious sale is necessary; accordingly, the department has reduced the 60 days to 30 days to expedite sales. COMMENT: sec.146.17(b)(2). Clarify the term "evasive". RESPONSE: The department disagrees because the term is self explanatory. COMMENT: sec.146.17(e)(2). A commenter questions the necessity for the entire provision. Is it to protect the department in case it fails to act on the disclosure in the original application? Is the department concerned that it may not be able to adequately enforce requirements in processing the original application for licensure? RESPONSE: The department's response is that the track record is important and relevant in enabling the department in determining whether to issue a license. The department does believe that the structure of the section as proposed needs to be modified for clarity and has done so in the final version. COMMENT: sec.146.17(e)(2). A commenter wants to substitute "Texas" for "any state" in subparagraph (A) and add "in Texas" at the end of subparagraphs (B) and (C). The commenter believes that these changes should be made because there is no uniformity in the regulation of personal care facilities in the United States. Even the definitions are not uniform. So, it is unreasonable to use information about what happens in other states. RESPONSE: The department disagrees because it believes that such information is relevant and important. A commenter wants to delete subparagraphs (D), (E), and (F), as they do not relate to provision of patient care. The department disagrees because such information does directly relate to patient care. A commenter requests clarification of "final judgement" in subparagraph (E). The department disagrees because the term is self-explanatory. A commenter wants to delete the word "unresolved" from subparagraph (F). The department agrees that clarification is needed but has deleted the word "final" to accomplish this purpose. COMMENT/RESPONSE: sec.146.18(a)(1). A commenter says that fees are excessive for small providers. The department disagrees because the number of beds decision is taken from the Life Safety Code. A commenter says the phrase "minimum of $400" should be "maximum of $400". The department agrees and has made the change. A commenter said that the requirement that a manager be a high- school graduate or have a GED should be deleted because no evidence exists that this education requirement is relevant to operating a facility. At least, all of the present facilities should be grandfathered from this requirement. The department disagrees because it is important that facility managers have a least a high-school degree or a GED. COMMENT/RESPONSE: sec.146.18(b). A commenter said that the amount of the fee to be charged to facilities is unclear and should be stated in the rule. The department disagrees because the trust fund has a cap of $100,000 and assessments are set based on what is needed to meet the $100,000. A commenter asked if the $100,000 amount for the trust fund is to be used for nursing homes as well as for personal care homes, and is this why the department uses the word "institution" in the rule? The department's response is the trust fund is used by personal care facilities and nursing facilities. The word "institution" is taken from the wording in the Health & Safety Code, Chapter 242, regarding trust fund. COMMENT/RESPONSE: sec.146.19(j). Several commenters said that the fees generally are exorbitant, the $1,000 minimum is unfair, the $5,000 a bed is too high, and it is not fair that a five-bed facility should have to pay as much as a 30-bed facility. The department disagrees because it believes that the fees are reasonable. A commenter suggested changing the title in Section II of the fee schedule to read: "II. Facility Plan Review: Personal Care Facilities (based on other than health care occupancy, Chapter 21 of the Life Safety Code). This change will make the wording consistent with the current rules. The department agrees and has made the change. COMMENT: sec.146.20. A number of commenters requested that the financial assurance provision be deleted for the following reasons: it is too expensive, an invasion of privacy, a violation of civil rights, a burden on small homes, and the requirements are too vague; an audited financial statement is too expensive, is not indicative of a facility's financial stability, and confidentiality of facility financial records will be endangered if such statements are public records; and auditing expenses are monies that could be used for resident care. RESPONSE: Upon review of all of the comments received, the department has decided not to adopt the financial assurance requirements in sec.146.20 and has withdrawn the section in its entirety. COMMENT/RESPONSE: sec.146.41(a). A commenter asked if provision in paragraph (1)(D) means that the manager on duty must be physically present, on call, or available. The department refers the commenter to the provisions in sec.146. 62(k)(1)(H). A commenter said that the staffing requirements in paragraph (2) (B) are too stringent, the ratio of attendant-to-resident is cost prohibitive, and the requirement for an attendant 24 hours a day is excessive. Another commenter said that the staff-to-resident ratio is inadequate and that one staff member to 15 residents cannot be conducive to the health, well-being, or comfort of any but the most stable, independent resident. The department believes that the staff-resident ratio is not too restrictive, but is a reasonable minimum and the facility may increase it. COMMENT: sec.146.41(b). A weekly social event is not adequate for most residents. RESPONSE: The department's response is that the rule is a minimum requirement. COMMENT: sec.146.41(d)(2)(A). Because a physical examination is required of new clients to a facility, the department should accept physicals completed by the hospital if the client is transferring from a hospital to a facility rather than to require a new physical examination. Also, if a client is transferring from one facility to another, the same medical information should be acceptable to the department if there is evidence of a physical exam in the medical records. RESPONSE: The department agrees with comment because the provision is in the existing rules and has made the change. COMMENT: sec.146.41(e)(1)(D). Change provision to read: "The recorded information shall include, but is not limited to, the medication name, strength, dosage, amount received, directions for use, route of administration, prescription number, pharmacy name, and the date each medication was issued by the pharmacy". This change will make the provision comply with established medical records procedures. RESPONSE: The department agrees and has made the change. COMMENT: sec.146.41(i). Delete "tuberculosis (TB) screening" in paragraph (4) because screenings are no longer required by local health authorities and there is no public funding for TB screenings, delete paragraph (4)(C) because it will be too expensive for small facilities, and delete requirements in paragraph (6)(B)(iv)-(v) because facilities are already required to give HIV training. RESPONSE: The department disagrees with each comment because the department believes that each provision is a reasonable one and needs to be retained. COMMENT: sec.146.61(a)(1) and (2). A residence with 5-25 residents should be considered small, 25-50 resident beds should be considered intermediate, and over 50 beds should be considered a large facility. RESPONSE: The department disagrees because the bed division is taken from the Life Safety Code. COMMENT: sec.146.61(b)(4)(C)-(D). Delete postpartum care provisions because such care does not apply to personal care facilities. RESPONSE: The department agrees and has deleted the provisions. COMMENT: sec.146.61(c). Clarify the criteria on which these numbers are based because they appear to be arbitrary. RESPONSE: The department disagrees that the numbers are arbitrary because they are based on giving a facility reasonable time to achieve compliance. COMMENT: sec.146.61(c). Define "Facilities" as "Existing facilities, i.e. facilities with residents at the time of the initial inspection" to improve clarity without changing meaning. RESPONSE: The department agrees and has made the change. COMMENT: sec.146.62(a). Clarify National Fire Protection Association 101, Chapter 21, by adding phrase, "titled Residential Board and Care Occupancies". RESPONSE: The department agrees and has made the change. COMMENT: sec.146.62(c)(2). Clarify last sentence by rephrasing it to read, "All fire drills shall be documented on a form furnished by the department. RESPONSE: The department agrees and has made the change. COMMENT: sec.146.62(d)(1). Clarify provision on partition by modifying it to read: (The partition shall be as defined by the National Fire Protection Association Standards). RESPONSE: The department agrees and has made the change. COMMENT: sec.146.62(d)(5). Correct the meaning of the exception provision by modifying it to read: "An exception is that for existing 16 beds or less, at least one main stair may be Class B." RESPONSE: The department agrees and has made the change. COMMENT: sec.146.62(e)(1). Add the following statement to provide a wider range of options for housing that will accommodate the needs of residents with differing functional capacities and be more cost effective: "An exception is that a Type A, Small, Class I, facility need not have a manual fire alarm provided smoke detectors are installed in all areas as listed in subsection (e) (1)(A). These detectors shall be powered by the facility electrical system, provide an audible signal of 85 decibels at 10 feet from the unit and every detector shall alarm upon activation of any one detector. Additionally, there must be at least one manual fire alarm pull per floor arranged to continuously sound the smoke detector alarms". RESPONSE: The department disagrees because rules are primarily recodifications of existing rules and are not intended to add substantive changes. COMMENT: sec.146.62(g)(11). It is unreasonable to call a 17-bed facility a large facility and require the same physical standards as for large facilities. RESPONSE: The department's response is that the bed division is taken from the Life Safety Code. COMMENT: sec.146.62(g)(6). Clarify provision by replacing "stated" with "is that". RESPONSE: The department agrees and has made the change. COMMENT: sec.146.62(h)(1). Combine this rule with the one in proposed sec.146. 62(h)(11) since both rules address the same subject. RESPONSE: The department agrees, has transferred the provisions in proposed (h)(11) to (h)(1), and has modified the combination for clarity. COMMENT: sec.146.62(h)(6). Revise provision to allow facility maintenance personnel to make the annual inspection of the gas heating system prior to its use each year. RESPONSE: The department disagrees because there is no assurance that facility personnel are qualified. COMMENT: sec.146.62(h)(6). Gas pressure tests should be conducted annually because they are neither expensive, time consuming, nor detrimental to the public good or safety. RESPONSE: The department disagrees because it is unnecessary to conduct such tests on a yearly basis. COMMENT/RESPONSE: sec.146.62(h)(11). Eliminate the use of extension cords altogether. The department disagrees because no basis exists for eliminating extension cords altogether. As previously mentioned in the comments concerning sec.146.62(h)(1), the department has combined subsections (h)(1) and proposed (h)(11). COMMENT: sec.146.62(h)(12). Delete the provision on floor, ceiling, and wall finish materials because it is unnecessary. RESPONSE: The department disagrees because the provision is reasonable and necessary. COMMENT: sec.146.62(i). Insert language to cover storage and waste containers. These provisions are in existing rules and need to be retained. RESPONSE: The department agrees but has placed language in adopted sec.146. 62(j). COMMENT: sec.146.62(i)(1). The department and a municipality should not require different types of fire extinguishers. RESPONSE: The department's position is that it has no legal jurisdiction over the types of fire extinguishers required by local ordinances. COMMENT: sec.146.62(k)(1)(B). Add language to clarify that 10 feet is the smallest allowed dimension in a bedroom. RESPONSE: The department agrees and has added appropriate language in adopted subsection (l)(2)(B). COMMENT: sec.146.62(k)(2)(B). The ratio of bathrooms to residents is too stringent and nursing facilities are only required to have one tub or shower for each 20 occupants. RESPONSE: The department disagrees because the ratio is reasonable and appropriate and nursing facility resident needs differ from personal care resident needs. COMMENT: sec.146.62(k)(2)(B). Clarify "fraction thereof". RESPONSE: The department's response is that a fraction is a portion less than six and has added this clarifying language to the rule. COMMENT: sec.146.62(k)(3)(A). The total space required for social diversion should be larger. RESPONSE: The department disagrees because the rule only addresses the minimum square footage required. COMMENT: sec.146.62(k)(6)(A). A commenter stated that it will cost a facility $50,000 to completely commercialize an adequate, sanitary, and efficient kitchen. RESPONSE: The department's response is that the rules do not address expenditures but that the rules are necessary and minimum requirements for kitchens. Another commenter wants to know what requirements an outside kitchen has to meet. The department's response is that all kitchens must meet local codes. COMMENT: sec.146.62(k)(6)(B)(i). Clarify rule by adding at end of provision the phrase, "and compliance with the requirements of sec.146.41(h)(18)". RESPONSE: The department agrees and has made the change in adopted sec.146. 62(l)(6)(B)(i). COMMENT: sec.146.62(k)(6)(B)(xii). In an existing building, it would be extremely disruptive, difficult, and expensive to add a floor drain. RESPONSE: The department disagrees as the rule provides for an exception for existing facilities. COMMENT: sec.146.62(k)(7)(A)(ii)(II)-(IV). It may not be feasible in an existing building (especially a home type structure housing more than 16 but fewer than 25 residents). The cost for such changes is indeed prohibitive. RESPONSE: The department disagrees because it does not believe that the requirement will be unreasonably expensive. COMMENT: sec.146.63(a)(1). Change subsection (b)(4) to subsection (c)(4) because more appropriate. RESPONSE: The department agrees and has made the change. COMMENT: sec.146.63(a)(4) and (d)(2)(C). If written approval of the local authorities is necessary, why have approval by the department in Austin? RESPONSE: The department response is that local authorities enforce local ordinances and not state standards. COMMENT: sec.146.63(c)(3). The numbering of resident rooms in a small, homelike facility is not necessary or desirable. RESPONSE: The department's response is that room numbers are only required when submitting floor plans. COMMENT: sec.146.63(d)(2)(A). Since the local health department makes recommendations to the department regarding licensure, the approval of the local health department should not be required. RESPONSE: The department disagrees because the requirement assures that local ordinances are met. COMMENT: sec.146.63(d)(2)(B). Modify provision to allow a facility to accept three residents between the time it receives initial approval from architectural section and the time the license is issued. This is allowed in the existing rules and should be retained. RESPONSE: The department agrees and has made the change. COMMENT: sec.146.63(e). Clarify what the fees will be. RESPONSE: The department's response is that sec.146.19 contains the fee schedule. COMMENT: sec.146.81(c). Delete provision on night inspections in a facility with 50 residents or less because this will awaken and terrify residents. RESPONSE: The department disagrees because it has not found this to be true. COMMENT: sec.146.81(d)(5)(B). Delete this provision concerning inspections for purchased care systems because this procedure is not performed in personal care facilities. RESPONSE: The department agrees and has deleted the provision. COMMENT: sec.146.81(d)(5)(A)-(C). Delete these requirements because announced inspections are not necessary in personal care facilities. RESPONSE: The department agrees to delete subparagraph (B) concerning inspection of purchased care systems but has retained subparagraph (A) and subparagraph (C) because the department believes that announced inspections in these areas are appropriate. Subparagraph (C) has been redesignated as subparagraph (B). COMMENT: sec.146.81(e). Clarify that the books, records, and documents are those belonging to residents and employees. RESPONSE: The department agrees and has made the change. COMMENT: sec.146.81(e)(3). Using a staff member to accompany a state official to copy records could leave the facility "short staffed". RESPONSE: The department disagrees because it believes that this requirement is reasonable and will not short staff the facility. COMMENT: sec.146.82(c). Specify time limit in which department must notify facility of an additional violation and allow more time than three days for the facility to communicate a reply regarding a possible violation. RESPONSE: The department agrees with both suggestions and has made appropriate changes. COMMENT: sec.146.101(D). Clarify "involuntary seclusion". RESPONSE: The department's position is that the term is clear as written and does not need further clarification. COMMENT: sec.146.104(b). Investigations of neglect or abuse should not be ruled out because a specific individual is named. If an individual is named, it is a more accurate report. RESPONSE: The department disagrees because it believes that it is fair and appropriate not to conduct an investigation under these circumstances. COMMENT: sec.146.105(b). Clarify language by changing "reports" to "complaints" and "Texas Department of Human Services" to Texas Department of Protective and Regulatory Services". RESPONSE: The department agrees and has made the changes. COMMENT: sec.146.105(d). Clarify language by inserting "complaint" before "investigations" in first sentence. RESPONSE: The department agrees and has made the changes. COMMENT: sec.146.105(f). Change to read "If the initial phase of an incident or complaint investigation concludes, no further investigation will be undertaken". RESPONSE: The department agrees and has made the change. COMMENT: sec.146.105(g). Change first sentence to read, "In cases concluded to be abuse, neglect, or exploitation, the written report of the investigation, along with its recommendations, shall upon request". RESPONSE: The department agrees and has made the change. COMMENT: sec.146.106(a). Clarify paragraphs (1) and (2) by deleting "The department's" at the beginning of each paragraph, and clarify (2) by deleting phrase "on cases concluded". RESPONSE: The department agrees and has made the changes. COMMENT: sec.146.106(b). Who determines if such reports are malicious or were made in bad faith? RESPONSE: The department's response is that it is responsible for making this determination. COMMENT: sec.146.107. Modify resident death-reporting requirements so that the language will follow the language in sec.145.217, relating to resident death reporting. RESPONSE: The department agrees that the two sections should contain similar reporting requirements and, accordingly, has modified sec.146.107 appropriately. COMMENT: sec.146.107. In considering a hospital a licensed facility, this rule would encourage a disreputable facility to discharge a resident who is close to death to his or her home and family at a time when such a resident should not be moved. RESPONSE: The department's response is that it does not believe that the rule would produce the result feared by the commenter. COMMENT: sec.146.123(a)(b). It would serve the public's best interest to clearly spell-out rules to begin with instead of later issuing interpretive memoranda to explain them. RESPONSE: The department disagrees because it should be able to interpret the rules on an ongoing basis through the use of interpretive memoranda, as appropriate. COMMENT: sec.146.124(c)(4). Are public records listed by specific headings or names and what is the procedure for obtaining a copy of a facility's record under the Open Records Act? RESPONSE: The department's response is that records are kept by the department by facility and the procedure for obtaining the records is described in sec.146.124. COMMENT: sec.146.124(f). What is an appropriate charge to inspect records and could such a charge be used to discourage people from inspecting records? RESPONSE: The department's response is that it charges according to rates established for all department records in accordance with rates set by the department in coordination with the State Board of Purchasing. The rates established are required by law to be limited to the department being reimbursed for its costs in producing copies and is not intended to discourage applications for records. COMMENT: sec.146.125(a)(3)(X). Add the phrase as "documented in the medical record by the attending physician or his designee, for each of the four items under subparagraph (X). RESPONSE: The department disagrees because such language is not necessary and (Y) relates to notification of physician and responsible party. COMMENT: sec.146.125(a)(3). Add to resident rights a provision that a resident shall have access to the State Long Term Care Ombudsman in the Department of Aging. RESPONSE: The department agrees and has added new (3)(BB) concerning access to the ombudsman. COMMENT: sec.146.126(a)(1). Replace "within 60 days" with "between 1 and 60 days" for clarity. RESPONSE: The department disagrees because it does not believe that the change would clarify the provision. COMMENT: sec.146.126(a)(2)(C). The criteria for issuing a license within certain time periods is too subjective. RESPONSE: The department disagrees because it believes that the time periods are explicit. COMMENT: sec.146.151(a). Clarify provision in paragraph (3) by requiring that notices be sent by certified mail. RESPONSE: The department agrees and has made the appropriate change. The department has made similar changes to sec.sec.146.152, 146.153, and 146.155. The department also has clarified subsection (a) concerning department personnel and has changed "recommend" to "authorized". COMMENT: sec.146.152 and sec.146.153. Clarify "serious violation" in both sections. The department agrees that the more serious action of revocation in sec.146.153 requires criteria and has added such criteria in subsection (b) of this section. RESPONSE: The department also has changed "recommend" to "revoke". COMMENT: sec.146.153 and sec.146.154. Include a provision for notification of the State Ombudsman regarding these actions. This would facilitate coordination of efforts between department regional offices and regional ombudsman programs. RESPONSE: The department's response is that it is more appropriate to have such an arrangement by interagency agreement rather than by rule. COMMENT: sec.146.155(b). Delete provision because a majority of facilities do not have a telecopier. RESPONSE: The department disagrees because use of a telecopier is not required. COMMENT: sec.146.155(d)(1). The right of choice will be lost if the department continues to issue stringent, expensive rules on a yearly basis. RESPONSE: The department disagrees because it is necessary to issue rules to protect resident health and safety, as appropriate, and the department does not believe that these rules are too stringent or expensive. COMMENT: sec.146.156(a). Add provision about hearings being requested under sec.146.20 concerning financial assurances. RESPONSE: The department disagrees because the department has withdrawn sec.146.20. The following agencies, associations, and organizations commented on proposed Chapter 146: Villa Residential Care Homes, Inc.; Texas Organization of Residential Care Homes; Texas Association of Retirement Communities; Mental Health Association of Texas; Alamo Residential Care Homes; Retirement Management, Inc.; Community Residential Program, Department of Veteran's Affairs; Evergreen Hill of Euless; Texas Department of Aging; Guzman's Personal Care Home of San Antonio; Sunshine Home of El Paso; Sisters Care of Dallas; Antique Oaks Personal Care Home; Silver Creek Home of Azle; and Meadow View of Arlington. In addition, numerous individuals commented on the proposed rules. The commenters ranged from those who opposed various sections and provisions in the proposal to those who supported various sections and provisions. Also, commenters expressed numerous concerns and made numerous suggestions for change throughout the proposed rules. 25 TAC sec.sec.146.1-146.4 The new sections are adopted under the Personal Care Facility Licensing Act, Health and Safety Code, Chapter 247, which provides the Texas Board of Health (board) with the authority to adopt rules concerning personal care homes; and sec.12.001, which provides the Board with authority to adopt rules to implement every duty imposed on the board, the department, and the commissioner of health. sec.146.3. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Act-The Personal Care Facility Licensing Act, Health and Safety Code, Chapter 247. Affiliate-With respect to a: (A) partnership, each partner thereof; (B) corporation, each officer, director, principal stockholder, subsidiary, and each person with a disclosable interest, as the term is defined in this section. (C) natural person: (i) each person's spouse; (ii) each partnership and each partner thereof of which said person or any affiliate of said person is a partner; and (iii) each corporation in which said person is an officer, director, principal stockholder, or person with a disclosable interest. Applicant-A person required to be licensed under Health and Safety Code, Chapter 247. Attendants-Any individual who is providing service to residents, and can include, but is not limited to, aides, cooks, janitors, porters, maids, laundry workers, security personnel, bookkeepers, managers, etc., as they also are of service. Authority having jurisdiction (AHJ)-Texas Department of Health. Co-mingles-The laundering of wearing apparel and/or linens of two or more individuals together. Dietitian-A dietitian is as follows. (A) A registered dietitian is a dietitian who is currently registered by the Commission on Dietetic Registration. (B) A licensed dietitian is a dietitian who is currently licensed by the Texas State Board of Examiners of Dietitians and who has 15 hours of dietetic continuing education annually. Facility-An institution coming under the scope of Personal Care Facility Licensing Act, the Health and Safety Code, Chapter 247, and furnishes room, board, and one or more services of a personal care or protective nature. 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. Immediately available -The capacity of facility staff to immediately respond to an emergency situation after being notified through a communication and/or alarm system. The staff is to be no more than 600 feet from the farthest resident. Impractical resident -An impractical resident is: (A) a resident with a physical disability of a nature that he/she is not capable of maneuvering in a wheelchair, walker, etc., unaided; (B) a resident who will not take or cannot understand instructions from a staff member; or (C) a resident who is taking medication which will make it difficult for a staff member to rouse the person quickly. Long-term care facility-A personal care facility, a nursing facility, a facility serving persons with mental retardation or related conditions, maternity facility, personal care facility, or similar facility. Manager-A person having a contractual relationship to provide management services to a facility. 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 shall not include contracts solely for maintenance, laundry, or food services. Medication-Medication is: (A) any substance 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) any substance intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease; (C) any substance (other than food) intended to affect the structure or any function of the body; (D) any substance intended for use as a component of any substance specified in this definition. It does not include devices or their components, parts, or accessories. Medication administration -The direct application of a medication or drug to the body of a resident by an individual licensed to administer medication in the State of Texas. Medication assistance or supervision-The assistance or supervision of the medication regimen by facility staff. Refer to sec.146.41 of this title (relating to Standards for Personal Care Facilities). Medication (self-administration) -The capability of resident's to administer their own medication/treatments without assistance from the facility staff. NFPA 101-The 1988 publication titled "NFPA 101 Life Safety Code" published by the National Fire Protection Association, Inc., Batterymarch Park, Quincy, Massachusetts 02269. Person-Any individual, firm, partnership, corporation, association, or joint stock association, and the legal successor thereof. Person with a disclosable interest-A person with a disclosable interest is any person who owns five percent 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. Personal care-Acts of a protective nature. Personal care is understood to mean adult and responsible supervision of or assistance with routine living functions in instances of a resident's condition necessitating such supervision or assistance. Personal care includes a wide variety of services which would require or result in the presence of an intermediary for the protection and care of the resident. Refer to sec.146.2 of this title (relating to Scope). Personal care administrator-The person responsible for the overall care of a personal care facility. Physician-A practitioner licensed by the Texas State Board of Medical Examiners. Resident-Anyone accepted for care in the personal care facility. 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 institution. Safety-Action taken to protect 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. Sanitation-Action taken to protect from illness, the transmission of disease, or loss of life due to unclean surroundings, the presence of disease- transmitting insects, or rodents, unhealthful conditions or practices in the preparation of food and beverage, or the care of personal laundry. Service plan-A written description of the medical care or the supervision and nonmedical care needed by a person. 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. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 16, 1993. TRD-9321767 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1993 For further information, please call: (512) 834-6770 Subchapter B. Application Procedures 25 TAC sec.sec.146.11-146.19, 146.21 The new sections are adopted under the Personal Care Facility Licensing Act, Health and Safety Code, Chapter 247, which provides the Texas Board of Health (board) with the authority to adopt rules concerning personal care homes; and sec.12.001 which provides the Board with authority to adopt rules to implement every duty imposed on the board, the department, and the commissioner of health. sec.146.11. Criteria for Licensing. (a) A person or governmental unit, acting jointly or severally, must be licensed to establish, conduct, or maintain a facility in this state. (b) An applicant for a license must submit a complete application form and license fee to the Texas Department of Health (department). (c) An applicant for a license must affirmatively show that: (1) the applicant, person with a disclosable interest, affiliate, and manager has had no conviction of a felony or crime involving moral turpitude in this state or any other state; (2) the facility meets the standards of the Life Safety Code; (3) the facility meets the construction standards in Subchapter D of this chapter (relating to Facility Construction); and (4) the facility meets the standards for operation based upon an on-site survey. (d) The applicant must provide all information requested on the application form and submit the appropriate fees as a prerequisite for the department to conduct a feasibility inspection or plan review, as requested or required. (e) A license shall be issued to a facility meeting all requirements of this chapter and shall be valid for one year. Each license shall specify the maximum allowable number of residents to be cared for at any one time. No greater number of residents shall be kept at any one time than is authorized by the license. sec.146.12. Building Approval. All applications for license shall include written approval of the local fire authority having jurisdiction based on the facility and operation meeting local applicable fire ordinances; such approval shall be on forms or in a manner as determined by the Texas Department of Health (department). The local health authority may provide recommendations regarding licensure utilizing the following procedure and process. (1) New facility. The sponsor of a new facility under construction or a previously unlicensed facility will provide to the department a copy of a dated notice to the local health authority that construction or modification has been or will be completed by a specific date. The sponsor will also provide a copy of a dated notice of the approval for occupancy by the local fire marshal or local building code authority, if applicable. The local health authority may provide recommendations to the department regarding the status of compliance with local codes, ordinances, or regulations. Local health authority comments and recommendations must be received by the department within 10 days after the date of the sponsor's notice of the fire marshal or building code authority approval for occupancy. The local health authority may recommend that a state license be issued or denied; however, the final decision on licensure status remains with the department. (2) Resident increase. The license holder shall request an application for increase in capacity from the department. The department shall provide the license holder with the application form, and the department shall notify the local fire marshal and the local health authority of the request. The license holder shall arrange for the inspection of the facility by the local fire marshal. Upon completion of the inspection, the license holder shall notify the local health authority and the department in writing if the facility meets local code requirements. The local health authority may provide recommendations to the department regarding the status of compliance with local codes, ordinances, or regulations. Local health authority comments and recommendations must be received within 10 days after the date of the facility's notice of the local fire marshal or building code authority approval. The local health authority may recommend that an increase in capacity be granted or denied; however, the final decision on the increase remains with the department. The department will approve the application only if the facility if found to be in compliance with the standards. Approval to occupy the increased capacity may be granted by the department prior to the issuance of the license covering the increased capacity after inspection by the department if standards are met. (3) Change of ownership. The applicant for a change of ownership license will provide to the department a copy of a letter to the local health authority of the request for a change of ownership under sec.145.16 of this title (relating to Change of Ownership). The local health authority may provide recommendations to the department regarding the status of compliance with local codes, ordinances, or regulations. Local authority recommendations must be received within 10 days of the dated notice from the new owner or date of change of ownership, whichever is later, if local health official recommendations are to be considered by the department. (4) Renewal. The local health authority having jurisdiction shall receive a copy of the license renewal notice specifying the expiration date of the facility's current license. The local health authority may provide recommendations to the department regarding the status of compliance with local codes, ordinances, or regulations. The local authority may also recommend that a state license be issued or denied; however, the final decision on licensure status remains with the department. Local health authority comments and recommendations must be received at least 30 days prior to expiration of the license for consideration by the department. (5) Inspection plan review. Any existing building being considered for licensure must either submit plans for review and approval or request a feasibility inspection to be performed by a representative of the department to determine construction or renovation requirements. sec.146.13. Applicant Disclosure Requirements. (a) Scope of section. No person shall apply for a license, change of ownership, increase in capacity, or renewal of a license to operate or maintain a facility without making a disclosure of information as required in this section. The disclosure is required if the person is applying for a license for the first time or if the person owned, operated, or managed another facility in this or any other state, using the same or any other business name. (b) Disclosure form. All applications shall be made on forms prescribed by and available from the Texas Department of Health (department). Applications include initial applications, change of ownership and renewal applications. Each application must be completed in accordance with department instructions, and signed and notarized. (c) General information required. An applicant shall file with the department an application which shall contain: (1) the name of the applicant and, if an individual, whether the applicant has attained the age of 18 years; (2) the type of facility; (3) the location of the facility; (4) the name of the administrator; (5) evidence of the right to possession of the facility at the time the application will be granted, which may be satisfied by the submission of applicable portions of a lease agreement, deed or trust, or appropriate legal document. If the applicant is not the owner of the real estate, the lease agreement must clearly state that the applicant/lessee has the right to renovate, repair, and maintain the real estate as may be required to meet the licensing standards. The names and addresses of any persons or organizations listed as owner of record in the real estate, including the buildings and grounds appurtenant to the buildings, shall be disclosed to the department. (6) certificate of good standing as issued by the Comptroller of Public Accounts; and (7) the certificate of incorporation as issued by the Secretary of State for a corporation or a copy of the partnership agreement for a partnership. (d) Disclosure requirements. Applicants must disclose the following information for the two-year period preceding the application date, concerning the applicant, persons with a disclosable interest, facility lessor, officers, affiliates, and manager, without regard to whether the data required relates to current or previous events: (1) denial or revocation of a license to operate a nursing facility, facility serving persons with mental retardation or related conditions, maternity facility, personal care facility, or similar facility in any state; (2) federal or state Medicaid or Medicare sanctions or penalties; (3) state or federal criminal convictions for any offense that provides a penalty of incarceration; (4) federal or state liens; (5) unsatisfied final judgments; (6) operation of a facility that has been decertified in any state under Medicare or Medicaid; (7) debarment, exclusion, or contract cancellation in any state from Medicare or Medicaid; (8) eviction involving any property or space used as a facility in any state; (9) unresolved state or federal Medicare or Medicaid audit exceptions; and (10) orders from any court restraining or enjoining the applicant, manager, or any person with a disclosable interest from operating a health care, long-term care, or personal care facility in any state. (e) Ownership and management information required. (1) Each applicant for a license to operate a facility shall disclose to the department the name and business address of: (A) each limited partner and general partner if the applicant is a partnership; (B) each director and officer if the applicant is a corporation; and (C) each person having a beneficial ownership interest of 5.0% or more in the applicant corporation, partnership, or other business entity. (2) If any person described in this section has served or currently serves as an administrator, general partner, limited partner, trustee or trust applicant, sole proprietor, or any applicant or licensee who is a sole proprietorship, executor, or corporate officer or director of or has held a beneficial ownership interest of 5.0% or more in any other long-term care facility, the applicant shall disclose the relationship to the department, including the name and current or last address of the facility and the date such relationship commenced and, if applicable, the date it was terminated. (3) If the applicant or licensee is a subsidiary of another organization, the information shall include the names and addresses of the parent organization and the names and addresses of the officers and directors of the parent organization. (4) If the facility is operated by, or proposed to be operated under, a management contract, the names and addresses of any person or organization, or both, having an ownership interest of 5.0% or more in the management company shall be disclosed to the department. (5) The information required by this section shall be provided to the department upon initial application for licensure, and changes in the information shall be provided to the department on an annual basis, except that a licensee shall notify the department within 30 days of any change of the facility's manager. (f) Exemptions. The provisions of this section shall not apply to a bank, trust company, financial institution, title insurer, escrow company, or underwriter title company to which a license is issued in a fiduciary capacity except for provisions that require disclosure relating to the manager of the facility. sec.146.16. Change of Ownership. (a) During the license term, a license holder may not transfer the license as a part of the sale of the facility. Prior to the sale of the facility, the license holder shall notify the Texas Department of Health (department) that a change of ownership is requested. The prospective purchaser shall submit to the department a complete application for a license under sec.146.11 of this title (relating to Criteria for Licensing) at least 30 days prior to the anticipated date of sale. The applicant shall meet all requirements for a license. (b) Pending the review of the prospective purchaser's application, the license holder shall continue to meet all requirements for operation of the facility. sec.146.17. Criteria for Denying a License or Renewal of a License. (a) The Texas Department of Health (department) may deny a license or a renewal of a license if an applicant, license holder, manager, or affiliate: (1) substantially fails to comply with the requirements described in sec.146.41 of this title (relating to Standards for Personal Care Facilities); (2) provides the following false or fraudulent information: (A) knowingly submits false or misleading statements in the application or any accompanying attachment; (B) uses subterfuge or other evasive means of filing; (C) engages in subterfuge or other evasive means of filing on behalf of another who is unqualified for licensure; (D) knowingly conceals a material fact; or (E) is responsible for fraud. (3) fails to provide the required information, facts, and/or references; (4) fails to pay the following fees, taxes, and assessments when due: (A) licensing fees as described in sec.146.18 of this title (relating to License Fees); or (B) franchise taxes, if applicable; (5) discloses any of the following actions within the two-year period preceding the application: (A) operation of a facility that has been decertified and/or had its contract cancelled under the Medicare or Medicaid program in any state; (B) federal or state Medicare or Medicaid sanctions or penalties; (C) state or federal criminal convictions for any offense that provides a penalty of incarceration; (D) federal or state liens; (E) unsatisfied final judgements; (F) eviction involving any property or space used as a facility in any state; (G) unresolved state or federal Medicare or Medicaid audit exceptions; or (H) suspension of a license to operate a health care facility, long-term care facility, personal care facility, or a similar facility in any state; (b) Concerning subsection (a)(5) of this section, the department may consider exculpatory information provided by the applicant, license holder, manager, or affiliate to grant a license under subsection (a) (5) of this section if the department finds the applicant, license holder, manager or affiliate able to comply with the rules of this chapter. (c) The department shall not issue a license to operate a new facility if the applicant discloses any of the following actions during the two-year period preceding the application: (1) revocation of a license to operate a health care facility, long term care facility, personal care facility, or similar facility in any state; (2) debarment or exclusion from the Medicare or Medicaid programs in any state; or (3) a court injunction prohibiting the applicant, manager, or affiliate from operating a facility. (d) If the department denies a license or refuses to issue a renewal of a license, the applicant or licensee may request an administrative hearing in accordance with sec.146.156 of this title (relating to Administrative Hearings). sec.146.18. License Fees. (a) Basic fees. (1) Initial and renewal license. The license fee shall be $100 plus $3.00 for each bed space, with a maximum of $400, for which a license is sought. The fee must be paid with each initial application and annually with each application for renewal of the license. (2) Increase in bed space. An approved increase in bed space is subject to an additional fee of $3.00 for each unit of capacity or bed space. (b) Trust fund fee. (1) In addition to the basic license fee described in subsection (a) of this section, the Texas Department of Health (department) has established as trust fund for the use of a court-appointed trustee as called for under the Health and Safety Code, Chapter 242, Subchapter D, and Chapter 247, sec.247.003(b). (2) The trust fund will be established by charging and collecting an annual fee from each institution licensed under Health and Safety Code, Chapters 242 and 247. All institutions licensed as of May 1 of each year will be charged with a fee established by the department. The fee will be based on a monetary amount specified for each unit of capacity or bed space licensed. The initial amount will be calculated so as to establish a fund of $100,000; each subsequent May 1, an annual amount will be determined by the department that will cause the unencumbered balance of the fund to equal $100,000 based on the licensed facilities as of that May 1. In calculating the fee, the amount will be rounded to the next whole cent. sec.146.19. Fees for Plan Reviews, Construction Inspection Services, and Feasibility Inspection Services. (a) The Health and Safety Code, sec.12.031 and sec.12.032, authorizes the Texas Department of Health (department) to charge fees for providing services mentioned in this section. Pursuant to this authority, the department establishes the fees, as shown in the fee schedule in subsection (j) of this section, to cover plan review services, construction inspection services, and feasibility inspection services. The fees are designed not to exceed the costs to the department to provide these services. (b) When the department finds in a licensed facility a violation of standards and when plans are submitted for the purpose of showing how the violation will be corrected, there will be no fee for such plan review. There will similarly be no fee for a construction visit made pursuant thereto. (c) The plan review fees shown in the schedule cover the review of plans in all the stages of development. (d) In determining the cost of additions or remodeling, only the direct construction costs need to be considered, i.e., construction contract amount plus any add-on costs by contractor or owner during construction. Costs do not include land acquisition, architectural/engineering fees, financing, legal fees, fund raising fees, furnishings, or movable equipment. (e) Remodeling is the construction, removal, or relocation of walls and partitions, or construction of foundations, floors, or ceiling-roof assemblies, including expanding of safety systems (i.e., sprinkler systems, fire alarm systems), that will change the existing plan and use areas of the facility. (f) General maintenance and repairs of existing material and equipment, repainting, applications of new floor, wall, or ceiling finishes, or similar projects are not included as remodeling, unless as a part of new construction. The department must be provided flame spread documentation for new materials applied as finishes. (g) Fees are due for payment as follows. (1) When plan development has reached the preliminary plan stage and preliminary plans are submitted for review, 30% of the plan review fee must accompany the plans. Before final plans are reviewed, the full fee, if preliminary plans were not submitted, or the balance of the plan review fee must be paid. (2) Construction inspection fees for new facilities and for additions or remodeling of existing licensed facilities are due for payment before the facility is licensed or otherwise accepted by the department under licensure. (3) Feasibility inspection fees are due for payment prior to the inspection being made. (h) Payment of fees shall be by check or money order made payable to the Texas Department of Health. (i) Should the facility or institution request construction inspections beyond those called for in the schedule, the appropriate additional fees shall be submitted. If the department elects to make additional construction inspections, there will be no charge for such inspections. (j) The fee schedule is as follows. [graphic] This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 16, 1993. TRD-9321774 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 458-7236 Subchapter C. Standards for Licensure 25 TAC sec.146.41 The new section is adopted under the Personal Care Facility Licensing Act, Health and Safety Code, Chapter 247, which provides the Texas Board of Health (board) with the authority to adopt rules concerning personal care homes; and sec.12.001 which provides the Board with authority to adopt rules to implement every duty imposed on the board, the department, and the commissioner of health. sec.146.41. Standards for Personal Care Facilities. (a) Staffing. (1) Manager. (A) Each facility shall designate, in writing, a manager to have authority over the operation. (B) The manager shall have proof of graduation from an accredited high school or certification of equivalency of graduation. (C) The manager of a licensed facility shall show evidence of six hours of annual continuing education that includes at least one of the following areas: (i) resident and provider rights and responsibilities, abuse/neglect, and confidentiality; (ii) basic principles of supervision; (iii) skills for working with residents, families, and other professional service providers; (iv) resident characteristics and needs; (v) community resources; (vi) accounting and budgeting; or (vii) basic emergency first aid (e.g., CPR, choking, etc.). (D) The manager shall be on duty 40 hours per week. (E) An individual competent and authorized to act in the absence of the manager shall be designated in writing. In a small facility if a resident is designated, he/she shall be competent and shall only work a maximum of three hours per day in the absence of the manager. (2) Attendants. (A) There shall be an attendant in the facility at all times when residents are in the facility. Additionally, there shall be other attendant personnel as needed to: (i) maintain order, safety, and cleanliness; (ii) assist with medication regimens; (iii) prepare and service meals; (iv) assist with laundry; and (v) assure that each resident receives the kind and amount of supervision and care required to meet his basic needs. (B) The following staff-resident ratio shall be maintained in a Type A or Type B facility. The shift time designations in this section are for illustration purposes only. The facility management has the authority to use other shift designations to define day, evening, and night shift start and end times. (i) 7 a.m.-3 p.m. = 1 to 15; (ii) 3 p.m.-11 p.m. = 1 to 20; and (iii) 11 p.m.-7 a.m. = 1 to 40; (I) Type A facility: 11 p.m.-7 a.m. staff in a 40 or less licensed bed capacity facility only needs to be immediately available. In a 41+ licensed bed capacity facility the staff must be awake; and (II) Type B facility: 11 p.m. -7 a.m. staff must be awake regardless of the number of licensed beds; and (iv) when the time schedules and staff-resident ratios as described in clauses (i)-(iii) of this subparagraph result in all residents being away from the facility, an attendant in the facility is not required. (C) The attendants shall have the following knowledge prior to assuming responsibilities: needs of the resident(s) and tasks to be provided, resident's health conditions and how it may affect provision of tasks, and conditions about which the attendant should notify the facility manager, and a job description. (b) Social services. The facility shall provide an activity and/or social program at least weekly for the residents. (c) Resident assessment. A facility that is licensed under these chapters shall care for a person according to a service plan that is filed at the facility and agreed upon between the facility and the person arranging the care before the facility admits the person for the care. (d) Operational policies, admission policies, and records. (1) Operational policies. (A) Each facility shall prepare and make available for distribution detailed written operational policies. Copies shall be furnished to staff personnel and to residents and/or residents' responsible parties at time of admission. (B) The statement of policies shall cover such details as residents accepted, services provided, charges, refunds, responsibilities of facility and residents, privileges of residents, and other rules and regulations. (2) Admission policies. (A) Each resident shall have a health examination by a physician performed within 30 days prior to admission or 14 days after admission, unless a transferring hospital or facility has a physical examination in the medical record. (B) The personal care facility shall secure at the time of admission of a resident the following identifying information: full name of resident; social security number; usual residence (where resident lived before admission) ; sex; color or race; marital status; date of birth; place of birth; usual occupation (during most of working life); family and physician for emergency notification; pharmacy preference; and Medicaid/Medicare number, if available. (3) Records. (A) There shall be a written admission agreement between facility and resident. The agreement shall specify such details as services to be provided and charges therefor, and shall be based on the operational policies. (B) Records pertaining to residents shall be treated as confidential and properly safeguarded, and shall be made available only to authorized persons and agencies. (e) Medications. (1) Administration. (A) Residents who choose not to or can not self-administer their medications must have their medications administered by a person who: (i) holds a current license under state law which authorizes the licensee to administer medication; or (ii) holds a current medication aide permit and acts under the authority of a person who holds a current license under state law which authorizes the licensee to administer medication. (B) All resident's prescribed medication shall be dispensed through a pharmacy or by the resident's treating physician or dentist. (C) Physician sample medications may be given to a resident by the facility provided the medication has specific dosage instructions for the individual resident. (D) Each resident's medications shall be listed on an individual resident's medication profile record. The recorded information obtained from the prescription label shall include, but is not limited to, the medication name, strength, dosage, amount received, directions for use, route of administration, prescription number, pharmacy name, and the date each medication was issued by the pharmacy. (2) Supervision. Supervision of a resident's medication regimen by facility staff may be provided to residents who are incapable of self-administering to include and limited to: (A) reminders to take their medications at the prescribed time; (B) opening containers or packages and replacing lids; (C) pouring prescribed dosage according to medication profile record; (D) returning medications to the proper locked areas; (E) obtaining medications from a pharmacy; and (F) listing on a individual resident's medication profile record the medication name, strength, dosage, amount received, directions for use, route of administration, prescription number, pharmacy name, and the date each medication was issued by the pharmacy. (3) Self-administration. (A) Residents who self-administer their own medications and keep them locked in their room shall be counseled at least once a month by facility staff to ascertain if the residents continue to be capable of self-administering their medications/treatments and if security of medications can continue to be maintained. A written record of counseling shall be kept by the facility. (B) Residents who choose to keep their medications locked in the central medication storage area may be permitted entrance or access to the area for the purpose of self-administering their own medication/treatment regimen. A facility staff member shall remain in or at the storage area the entire time any resident is present. (4) General. (A) Facility staff will immediately report to the resident's physician and responsible party any unusual reactions to medications or treatments. (B) When the facility supervises or administers the medications, a written record shall be kept when the resident does not receive or take his/her medications/treatments as prescribed. The documentation shall include the date and time the dose should have been taken, and the name and strength of medication missed; however, the recording of missed doses of medication does not apply when the resident is away from the personal care facility. (5) Storage. (A) The facility shall provide a locked area for all medications. Examples of areas, but not limited to, are: (i) central storage area; (ii) medication cart; and (iii) resident room. (B) Each resident's medication shall be stored separately from other resident's medications within the storage area. (C) A refrigerator shall have a designated and locked storage area for medications requiring refrigeration. (D) Poisonous substances and medications labeled for "external use only" must be stored separately within the locked medication area. (6) Disposal. (A) Medications no longer being used by the resident for the following reasons are to be kept separate from current medications and are to be disposed of by a registered pharmacist licensed in the State of Texas: (i) medications discontinued by order of the physician; (ii) medications which remain after a resident is deceased; or (iii) medications which have passed the expiration date. (B) Needles and hypodermic syringes with needles attached shall be disposed as required by sec.sec.1.131-1.137 of this title (relating to the Definition, Treatment, and Disposal of Special Waste from Health Care Related Facilities). (C) Medications kept in a central storage area are released to discharged residents when a receipt has been signed by the resident or responsible party. (f) Accident, injury, or acute illness. (1) In the event of accident or injury requiring emergency medical, dental or nursing care, or in the event of apparent death, the personal care facility will: (A) make arrangements for emergency care and/or transfer to an appropriate place for treatment (i.e., physician's office, clinic, hospital, etc.); (B) immediately notify the resident's physician and next of kin, responsible party, or agency who placed the resident in the facility; and (C) describe and document the injury, accident, or illness on a separate report. The report shall contain a statement of final disposition and be maintained of file. (2) The facility shall stock and maintain in a single location first aid supplies to treat burns, cuts, and poisoning. (3) Residents who need the services of professional nursing or medical personnel due to a temporary incapacitating illness or injury may have those services delivered by persons qualified to deliver the necessary service. (g) Personal belongings and finances. (1) Each individual shall have the right to keep and maintain any personal belongings in his possession except items which might be harmful to himself or others. The facility has no responsibility for such possessions. (2) Each individual shall have the right of keeping and maintaining his own finances. The personal care facility shall keep a simple financial record on all charges billed to the resident for care and these records shall be available to the department, while in the facility. If the resident entrusts the handling of any personal finances to the personal care facility, a simple financial record shall be maintained to document accountability for receipts and expenditures, and these records must be available to the department. (h) Dietary service. (1) A person designated by the facility is responsible for the total food service of the facility. (2) At least three meals or their equivalent shall be served daily, at regular times, with no more than a 16-hour span between a substantial evening meal and breakfast the following morning. All exceptions shall be specifically approved by the department. (3) Menus shall be planned one week in advance. Menus shall be prepared to provide a balanced and nutritious diet, such as that recommended by the National Food and Nutrition Board. Food shall be varied. Records of menus as served shall be filed and maintained for 30 days after the date of serving. (4) Therapeutic diets which can customarily be observed by a person in a family setting are permissible to be served by the personal care facility. Any individual in need of a therapeutic diet that requires professional calculation shall have the diet calculated by a qualified dietitian. (5) Supplies of staple foods for a minimum of a four-day period and perishable foods for a minimum of a one-day period shall be maintained on the premises. (6) Food shall be obtained from sources that comply with all laws relating to food and food labeling. If food, subject to spoilage, is removed from its original container, it shall be kept sealed, and labeled. Food subject to spoilage shall also be dated. (7) Plastic containers with tight fitting lids are acceptable for storage of staple foods in the pantry. (8) Potentially hazardous food, such as meat and milk products, shall be stored at 45 degrees Fahrenheit or below. Hot food shall be kept at 140 degrees Fahrenheit or above during preparation and serving. (9) Freezers shall be kept at a temperature of 0 degrees Fahrenheit or below and refrigerators shall be 45 degrees Fahrenheit or below. Thermometers shall be placed in the warmest area of the refrigerator and freezer to assure proper temperature. (10) Food shall be prepared and served with the least possible manual contact, with suitable utensils, and on surfaces that prior to use have been cleaned, rinsed, and sanitized to prevent cross-contamination. (11) Raw foods shall be washed with potable water before preparation. (12) Food service employees, while infected with a disease in a communicable form that can be transmitted by foods, or who is a carrier of organisms that cause such a disease or while afflicted with a boil, an infected wound, or an acute respiratory infection, shall not work in the food service area in any capacity in which there is a likelihood of such person contaminating food or food-contact surfaces with pathogenic organisms or transmitting disease to other persons. (13) Effective hair restraints shall be worn to prevent the contamination of food. (14) Tobacco products shall not be used in the food preparation and service areas. (15) Employees shall maintain a high degree of personal cleanliness and shall conform to good hygienic practice during all working periods in food service. (16) Dishwashing chemicals used in the kitchen may be stored in plastic containers if they are the original in which the manufacturer packaged the chemicals. (17) Sanitary dishwashing procedures and techniques shall be followed. (18) Facilities housing 17 or more residents shall comply with sec.sec.229. 161-229.173 of this title (relating to Food Service Sanitation) and local health ordinances or requirements shall 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. (i) Infection control. (1) Each facility must establish and maintain an infection control policy and procedure designated to provide a safe, sanitary, and comfortable environment and to help prevent the development and transmission of disease and infection. (2) The facility shall comply with departmental rules regarding special waste in sec.sec.1.131-1.137 of this title (relating to Definition, Treatment, and Disposition of Special Waste from Health Care Related Facilities). (3) The name of any resident of a facility with a reportable disease as specified in: sec.sec.97.1-97.23 of this title (relating to Control of Communicable Diseases) shall be reported immediately to the city health officer, county health officer, or health unit director having jurisdiction, and appropriate infection control procedures shall be implemented as directed by the local health authority. (4) The facility must have written policies for the control of communicable disease in employees and residents, which includes tuberculosis (TB) screening and provision of a safe and sanitary environment for residents and employees. (A) If employees contract a communicable disease that is transmissible to residents through food handling or direct resident care, the employee must be excluded from providing these services as long as a period of communicability is present. The decision to return to work must be made by the facility's executive director in conjunction with the employee's personal physician or the facility's medical director, the local or state health authority if the disease is reportable, and in accordance with generally accepted practices. (B) The facility must maintain evidence of compliance with local and/or state health codes or ordinances regarding employee and resident health status. (C) The facility must screen all employees within two weeks of employment and annually for tuberculosis. All persons providing services under an outside resource contract must, upon request of the facility, provide evidence of compliance with this requirement. (5) Personnel must handle, store, process, and transport linens so as to prevent the spread of infection. (6) Universal precautions shall be used in the care of all residents because a reliable source cannot identify all those persons infected with blood-born pathogens. (A) Universal precautions apply to blood and other body fluids containing visible blood. (B) General principles of universal precautions. (i) All health-care workers shall routinely use appropriate barrier precautions to prevent skin and mucous-membrane exposure when contact with blood or other body fluids of any resident is anticipated. (I) Gloves shall be worn for touching blood and blood contaminated body fluids, mucous membranes, or non-intact skin of all residents for handling items or surfaces soiled with blood or body fluids, and for performing venipuncture and other vascular access procedures. (II) Gloves shall be changed after contact with each resident. (III) Masks and protective eyewear of face shields shall be worn during procedures that are likely to generate droplets of blood or other body fluids to prevent exposure of mucous membranes of the mouth, nose, and eyes. (IV) Gowns or aprons shall be worn during procedures that are likely to generate splashes of blood or other body fluids. (ii) Hands and other skin surfaces shall be washed immediately and thoroughly if contaminated with blood or other body fluids. Hands shall be washed immediately after gloves are removed. (iii) All health-care workers shall take precautions to prevent injuries caused by needles, scalpels, and other sharp instruments after procedures. (iv) Although saliva has not been implicated in human immunodeficienty virus (HIV) transmission, to minimize the need for emergency mouth-to- mouth resuscitation, mouthpieces, resuscitation bags, or other ventilation devices shall be available for use in areas in which the need for resuscitation is predictable. (v) Pregnant health-care workers are not known to be at greater risk of contracting HIV infection than health-care workers who are not pregnant; however, if a health-care worker develops HIV infection during pregnancy, the infant is at risk of infection resulting from perinatal transmission. Because of this risk, pregnant health-care workers should be especially familiar with and strictly adhere to precautions to minimize the risk of HIV transmission. (C) The facility must have policies that provide for: (i) orientation and training at the time of employment and continuing education, at least annually, for health-care workers; (ii) provision of equipment and supplies necessary to minimize the risk of infection from blood-born pathogens; and (iii) monitoring adherence to recommended protective measures. (D) The facility shall implement infection control procedures, including, but not limited to, universal precautions. (E) Facility employees and residents shall be protected from direct exposure to blood and body fluids that are visibly contaminated with blood to prevent exposure to HIV and hepatitis B virus (HBV). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 16, 1993. TRD-9321776 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1993 For further information, please call: (512) 458-7236 Subchapter D. Facility Construction 25 TAC sec.sec.146.61-146.63 The new sections are adopted under the Personal Care Facility Licensing Act, Health and Safety Code, Chapter 247, which provides the Texas Board of Health (board) with the authority to adopt rules concerning personal care homes; and sec.12.001, which provides the Board with authority to adopt rules to implement every duty imposed on the board, the department, and the commissioner of health. sec.146.61. Introduction and Application. (a) Classification of facilities. (1) A small facility is a building(s) consisting of one or more floors providing sleeping accommodations for 16 or fewer residents, exclusive of "live- in" houseparents, family, or staff. (2) A large facility is a building(s) consisting of one or more floors providing sleeping accommodations for 17 or more residents, exclusive of "live- in" staff. (b) Applicability of requirements for construction and life safety. (1) All buildings or structures, new or existing, used as licensed personal care facilities shall be in accordance with these standards. Any exceptions are specifically mentioned. (2) For existing buildings and structures which are converted to personal care occupancy, no residents will be admitted until all standards are met and approval for occupancy is granted by the licensing officer of the department. (3) A licensed nursing facility or licensed hospital, meeting Chapter 12 or Chapter 13 of National Fire Protection Association 101 (NFPA 101), may be considered as a personal care occupancy without additional fire safety features as may be specified in this subchapter. (4) Buildings and structures shall conform to the 1988 edition, of NFPA 101, as published by the National Fire Protection Association, Inc., Batterymarch Park, Quincy, Massachusetts 02269, as follows. (A) Type A small facilities shall conform to Chapter 21. (B) Type A large facilities shall conform to Chapter 21. (C) Type B small ("Impractical") facilities shall conform to Chapter 21. (D) Type B large ("Impractical") shall conform to Chapters 21 and 12 (limited care requirements, as defined by the NFPA 101, may be used). (E) Other chapters, sections, subsections, or paragraphs of the NFPA 101 such as Chapters 1-7 and Chapter 31, shall apply as referenced or intended for their relation to Chapters 21, 12, and 18. (F) Buildings which contain living units with independent cooking and bathroom facilities shall conform with NFPA 101, Chapters 21 and 18, New Apartment Buildings, Option #2, "Buildings provided with a complete automatic fire detection and notification system," as a minimum. (5) New construction shall be subject to local codes. (The description of the occupancy may vary with local codes.) In the absence of local codes or their enforcement for new construction, the department will require conformance to the fundamentals of the following codes: (A) the Uniform Building Code, 1988 edition, by the International Conference of Building Officials, 5360 South Workman Mill Road, Whittier, California 90601, 'R' Occupancy, Divisions 1 and 3 for Type A facilities, and 'I' Occupancy for Large Type B facilities; (B) the Uniform Plumbing Code, 1988 edition, as published by the International Association of Plumbing and Mechanical Officials, 5032 Alhambra Avenue, Los Angeles, California 90032; (C) the National Electrical Code as specified under NFPA 101; (D) illumination systems shall be designed and installed in accordance with the Lighting Handbook of the Illuminatory Engineering Society (IES) of North America, except as may be modified in this subchapter. (6) An existing building either occupied as a personal care facility at the time of initial inspection by the department or converted to occupancy as a personal care facility shall meet all local requirements pertaining to that building for that occupancy. The department shall require the facility sponsor or licensee to submit evidence that local requirements are satisfied. When local laws, codes, or ordinances are more stringent than these standards for personal care, the more stringent requirements shall govern. (7) Buildings shall be structurally sound with regard to actual or expected dead, live, and wind loads according to applicable building codes. (8) The facility shall meet the provisions and requirements concerning accessibility for individuals with disabilities in the following laws: the Americans with Disabilities Act 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 shall be submitted to the Texas Department of Licensing and Regulation (Attn: Elimination of Architectural Barriers Program) for accessibility approval under Article 9102. (c) Existing facilities, i. e., facilities with residents at the time of the inspection, of eight beds or less that have residents but are not licensed as a personal care facility will be given 12 months, from the date of the initial architectural inspection, to meet the Life Safety Code and physical plant requirements of these standards. Facilities of nine beds or more that have residents but are not licensed as a personal care facility will be given six months, from the date of the initial architectural inspection, to meet the Life Safety Code and physical plant requirements of these standards. sec.146.62. General Requirements. (a) General. The concept of the National Fire Protection Association (NFPA) 101 Life Safety Code requirements for fire safety with regard to the residents is based on evacuation capability. These standards are written with the premise that the residents will be capable of self-evacuation without continuous staff assistance. Residents not normally capable of self-evacuation nor capable of negotiating stair's unassisted shall not be housed above or below the floor of exit discharge unless the facility meets the construction requirements of NFPA 101, Chapter 12, titled "Health Care Occupancies For Large Facilities" and the "impractical" requirements for small facilities, as found in NFPA 101, Chapter 21, titled "Residential Board and Care Occupancies". Examples of residents that may not be capable of self-evacuation are as follows: (1) a person with a physical disability of a nature that he is not capable of maneuvering in a wheelchair, walker, etc., unaided; (2) a person who will not take or cannot understand instructions from a staff member, or; (3) a person that is taking medication which will make it difficult for a staff member to rouse the person quickly. (b) Evacuation procedures. Residents that are housed in buildings that are licensed as small or large Type A facilities shall be able to demonstrate to the authority having jurisdiction (AHJ) that they can travel from their living unit to a centralized space, such as lobby, living, or dining room on the level of discharge within a 13-minute period without continuous staff assistance. Elevators cannot be used as an evacuation route. (c) Operational features. (1) All fires causing damage to the facility and/or equipment shall be reported to the department within 72 hours. Any fire causing injury or death to a resident shall be reported immediately. A telephone report shall be followed by a written report on a form which will be supplied by the department. (2) Fire drills shall be conducted at least four times a year on each shift. The drills may be announced in advance to the residents. The drills shall involve the participation of the staff in accordance with the emergency plan. Residents shall be informed of evacuation procedures and locations of exits. All fire drills shall be documented on a form provided by the department. (3) Smoking regulations shall be established, and smoking areas shall be designated for residents and staff. Ashtrays of noncombustible material and safe design shall be provided in smoking areas. (4) The facility shall post an emergency evacuation floor plan. An exception is that small, one-story facilities are not required to post such plans. (5) The administration shall have in effect and available to all supervisory personnel written copies of a plan for the protection of all persons in the event of fire and for their remaining in place, for their evacuation to areas of refuge, and from the building when necessary. The plan shall include special staff actions including fire protection procedures needed to ensure the safety of any resident and shall be amended or revised when needed. All employees shall be periodically instructed and kept informed with respect to their duties and responsibilities under the plan. A copy of the plan shall be readily available at all times within the facility. (d) Construction. (1) There shall be separation from other occupancies. A common wall between a personal care facility and another occupancy shall be not less than a two-hour fire-rated partition. (The partition shall be as defined by National Fire Protection Association Standards.) A licensed nursing facility or licensed hospital is not considered another occupancy for this purpose. An exception is where an unlicensed occupancy occurs in the same building or structure and is so intermingled that separate safeguards are impracticable. The means of egress, construction, protection, and other safeguards shall comply with the NFPA 101 requirements of the licensed occupancy. (2) Interior wall and ceiling surfaces shall have as the finished surface or as substrate or sheathing a fire resistance of not less than that provided by 3/8-inch gypsum board (20-minute fire rating), unless approved otherwise by the department. A sprinkler system will not substitute for the minimum construction requirements. An exception is Type B large facilities shall meet the construction requirements of NFPA 101, Chapter 12, sec.12-1.6. (3) Flame spread-rate requirements shall be as specified in NFPA 101. Flame spread is the rate of fire travel along the surface of a material. (This is different than 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). (4) Doors between resident rooms and corridors or public spaces shall be not less than 1-3/4-inch thick solid core wood construction or 20-minute fire-rated, self-closing or automatic-closing, and latch in their frames. Exceptions are as follows. (A) Small Type A facilities can have smoke resisting doors with automatic closures provided the interior finish is Class 'B' or better and there are two remote exit routes. (B) Small Type A facilities that have 20-minute fire-rated doors (or 1-3/4- inch solid core wood) , Class 'B' or better interior finish, and two remote exit routes are not required to be self-closing or automatic-closing. (C) In Small and Large Type A facilities protected throughout by an approved automatic sprinkler system, doors to resident bedrooms are not required to be self-closing or automatic-closing, except a three-story or larger building which does not meet construction requirements of NFPA 101, Chapter 12. (5) Upper floors shall have at least two separate approved stairs. Each stair shall be arranged and located so that it is not necessary to go through another room (such as bedroom or bath) to reach the stair. All stairs shall be provided with handrails and with normal lighting. Refer to NFPA 101 for Class 'A' stair details. An exception is that for existing 16 beds or less: at least one main stair may be Class 'B'. Such stairs may be constructed of wood. (6) All hazardous areas, as defined in the NFPA 101, Chapter 21 or 12, if considered severe shall be one-hour fire-separated or provided with sprinkler protection or both. Gasoline, volatile materials, oil base paint, or similar products shall not be stored in the building housing residents. (7) Exit signs, with emergency power, shall be provided in all large facilities and installed in accordance with NFPA 101, Section 5-10. (8) Emergency lighting shall be provided in all buildings with 25 or more bedrooms; in apartment buildings with 12 or more living units or which are 3 or more stories in height; and in all large facilities that are designed for Type B. The System shall be installed in accordance with NFPA 101, Section 5-9. (e) Fire alarm and sprinkler systems. (1) Fire alarm and smoke detection system. An Underwriter's Laboratory (UL) listed manual fire alarm initiating system, with an interconnected automatic smoke detection and alarm initiation system, shall be provided in accordance with the NFPA 101, Section 7-6. The operation of any alarm initiating device will sound an audible/visual alarm(s) at the site. (A) Smoke detectors shall be installed in resident bedrooms, corridors, hallways, living rooms, dining rooms, offices, and public or common areas. Service areas, such as kitchens, laundries and attached garages used for car parking may have heat detectors in lieu of smoke detectors. Exceptions are as follows. (i) Large facilities with apartment units may use listed smoke detectors with an alarm device and separate heat detector contacts in the living area. The smoke detectors must provide an audible signal within the apartment, and annunciate at the main staff station or location. The heat detector contacts shall be connected to the fire alarm system and provide a general alarm when activated. (ii) A facility constructed to meet NFPA 101, Chapter 12, need only meet Section 12-3.4.5.1. for smoke detector locations. (B) The fire alarm control panel shall be visible to staff at or near the staff area that is attended 24 hours a day. (C) The primary power source for the complete fire alarm system must be commercial electric and permanently wired for power on a dedicated circuit in accordance with the National Electrical Code. (D) Emergency power source shall be from approved storage batteries or on-site engine-driven generator set. (E) The facility shall have a written contract with a fire alarm company or person licensed by the State of Texas to maintain the alarm system semiannually. (F) In large facilities, the fire alarm panel shall indicate as a separate zone, each floor and/or smoke compartment. Each zone shall have an alarm and trouble indication. (G) In large Type B facilities the fire alarm shall automatically notify the fire department in accordance with NFPA 101, Section 7-6.4. (2) Sprinkler systems. When installed or required, sprinkler systems shall meet the following criteria. (A) Facilities housing 16 or fewer residents may have a system that meets NFPA 13D requirements. (B) Large Type B facilities must have a complete NFPA 13 system. (C) Large Type A facilities may have an NFPA 13R system (up to and including three stories). (f) Site and location. (1) The facility shall be serviced by a paid or volunteer fire fighting unit as approved by the department. Water supply for fire fighting purposes shall be as required and approved by the fire fighting unit. (2) Any site or building conditions that are a fire hazard, health hazard, or physical hazard shall have corrections made as determined by the department. (3) The facility shall provide or arrange for nearby parking spaces for private vehicles of residents and visitors. A minimum of one space shall be provided for each four beds or fraction thereof, or per local code, whichever is more stringent. (4) Ramps, walks, and steps shall be of slip-resistive texture and uniform, without irregularities. Ramps shall not exceed 1:12 slope, and shall meet handicap standards for width. Guardrails, fences, or handrails shall be provided where grades make an abrupt change in level. (5) All outside areas, grounds, adjacent buildings, etc., on the site shall be maintained in good condition and kept free of rubbish, garbage, untended growth, etc., that may constitute a fire or health hazard. Site grades shall provide for water drainage away from the structure to prevent ponding or standing water at or near the building. (g) Sanitation and housekeeping. (1) Waste water and sewage shall be discharged into a state-approved municipal sewerage system; any exception shall be as approved by the department. (2) The water supply shall be of safe, sanitary quality, suitable for use, and adequate in quantity and pressure, and shall be obtained from a water supply system, the location, construction, and operation of which are approved by the department. (3) Waste, trash, and garbage shall be disposed of from the premises at regular intervals in accordance with state and local practices. Excessive accumulations are not permitted. The facility shall comply with sec.sec.1.131- 1.137 of this title (relating to Definition, Treatment, and Disposal of Special Waste from Health Care Related Facilities). (4) Operable windows shall be insect screened. (5) An ongoing pest control program shall be provided by facility staff or by contract with a licensed pest control company. The least toxic and least flammable effective chemicals shall be used. (6) All bathrooms, toilet rooms, and other odor-producing rooms or areas for soiled and unsanitary operations shall be ventilated with operable windows or powered exhaust to the exterior for odor control. An exception is that existing small facilities may vent into an attic provided that the attic is vented. (7) In kitchens and in laundries, there shall be procedures utilized by facility staff to avoid cross-contamination between clean and soiled utensils and linens. (8) The facility shall be kept free of accumulations of dirt, rubbish, dust, and hazards. Floors shall be maintained in good condition and cleaned regularly; walls and ceilings shall be structurally maintained, repaired, and repainted or cleaned as needed. Storage areas and cellars shall be kept in an organized manner. No storage will be permitted in the attic spaces. (9) The facility shall be capable of being ventilated through the use of windows, mechanical ventilation, or a combination of both. Interior areas designated for smoking within the building shall have mechanical ventilation directed to the exterior to remove smoke at the rate of 10 air changes per hour. (10) In addition to janitor closet(s) called for in specific departments of large facilities, other janitor closet(s) shall be provided throughout the facility to maintain a clean and sanitary environment. Each janitor closet shall have a service sink and forced air ventilation ducted to the outside. (11) A public/staff toilet, i.e. commode and lavatory, complying with accessibility standards is required for every large facility up to and including 60 beds. Facilities over 60 beds shall have separate public and staff toilets in addition to the staff toilet(s) required for the dietary staff. (12) If the facility provides linens to the residents, the quantity of available linen shall meet the sanitary and cleanliness needs of the residents. Clean linens shall be stored in a clean area. (h) General safety features. (1) The building shall be kept in good repair; electrical, heating, and cooling shall be maintained in a safe manner. The department may require the facility sponsor or licensee to submit evidence to this effect, consisting of a report from the fire marshal, city/county building official having jurisdiction, licensed electrician, or a registered professional engineer. Use of electrical appliances, devices, and lamps shall be such as not to overload circuits or cause excessive lengths of extension cords. (2) All draperies and other window coverings in public or common areas, and in bedrooms and/or living units in which smoking is permitted shall be flame resistant. (3) All new floor carpet installed in public or common spaces after the initial inspection by the department shall be Class I or II based on the "Critical Radiant Flux" ratings. Proper documentation must be provided. (4) Open-flame heating devices are prohibited. All fuel-burning heating devices shall be vented. Working fireplaces are acceptable if of safe design and construction and if screened or otherwise enclosed. (5) There shall be at least one telephone in the facility available to both staff and residents for use in case of an emergency. Emergency telephone numbers, including at least fire, police, ambulance, EMS, and poison control center, shall be posted conspicuously at or near the telephone. (6) An initial pressure test of facility gas lines from the meter shall be provided. Additional pressure tests will be required when the facility has major renovations or additions where the gas service is interrupted. All gas heating systems shall be checked prior to the heating season for proper operation and safety by persons who are licensed or approved by the State of Texas to inspect such equipment. A record of this service shall be maintained by the facility. Any unsatisfactory conditions shall be corrected promptly. (7) Exterior and interior stairs shall have handrails that are firmly secured to prevent falls. (8) Cooling and heating shall be provided for occupant comfort. Conditioning systems shall be capable of maintaining the comfort ranges of 68 degrees Fahrenheit to 82 degrees Fahrenheit in resident-use areas. (9) The Illumination Engineering Society of North America recommendations shall be followed to achieve proper illumination characteristics and lighting levels throughout the facility. Minimum illumination shall be 10 footcandles in resident rooms during the day and 20 footcandles in corridors, staff stations, dining rooms, lobbies, toilets, bathing facilities, laundries, stairways, and elevators during the day. Illumination requirements for these areas apply to lighting throughout the space and should be measured at approximately 30 inches above the floor anywhere in the room. Minimum illumination for medication preparation or storage areas, kitchens, and staff station desks shall be 50 footcandles during the day. Illumination requirements for these areas apply to the task performed and should be measured on the tasks. (10) All buildings three floors or higher, and facilities that provide services, treatment, or social activities on floors above or below the level of discharge and which house mobility impaired residents, shall have a passenger elevator. The lowest level of discharge will be the first floor for determining floor level. (11) Floor, ceiling, and wall finish materials shall be complete and in place to provide a sanitary and structurally safe environment. (i) Portable fire extinguishers. (1) At least one portable Underwriters Laboratory (UL) or factory mutual (FM)- approved five-pound Class B:C dry-chemical fire extinguisher, rechargeable type, is required in each laundry, kitchen, and walk-in mechanical room. ABC-type extinguishers shall not be used in kitchens. An exception is that in small facilities, ABC-type extinguishers will be acceptable for these spaces. (2) Portable UL or FM-approved 2-1/2 gallon stored-pressure water-type fire extinguishers (Class A) must be provided in areas serving resident bedrooms. One such unit shall be located within 75 feet of any resident bedroom door. Acidic base (ABC) and dry-chemical types are not acceptable. (3) Extinguishers must be readily accessible. Units must be installed on hangers or brackets, mounted in special cabinets, or set on appropriate shelves. Operating instructions shall face outward. Mounting heights shall not exceed five feet above the floor for extinguishers weighing 40 pounds or more. Alternative locations and arrangements for fire extinguishers may be as approved by the department for small facilities, facilities consisting of separated small building units, or unusual building arrangements. (4) Regular monthly inspections or "quick checks" must be made by facility representatives to assure that extinguishers are in the proper location, condition, and working order. Annual maintenance or "thorough checks" must be accomplished in accordance with National Fire Protection Association Standard Number 10A (NFPA 10A) by competent personnel licensed or certified by the State Fire Marshal to perform servicing. Unserviceable extinguishers must be replaced. (j) Waste and storage containers. (1) Metal waste baskets of substantial gauge or any UL or FM approved containers must be provided in all areas where smoking is permitted. (2) 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 UL or FM approved material, and have a close fitting cover. Disposable plastic liners may be used in these containers for sanitation. (k) Accessibility provisions. (1) The physical plant of all large facilities and all other facilities housing residents with physical disabilities and/or mobility impairments must comply with applicable federal, state, and local requirements for persons with disabilities. (2) A minimum of 5.0% of the resident living units of large facilities shall meet the accessibility provisions. (l) Resident accommodations. (1) Resident bedrooms. (A) Bedroom usable floor space for Type A facilities shall not be less than 80 square feet for a one-bed room and not less than 60 square feet per bed for a multiple-bed room. A bedroom shall be not less than eight feet in the smallest dimension, unless specifically approved otherwise by the department. Bedrooms for persons with physical disabilities and/or mobility impairment shall meet accessibility standards for access around the bed or beds, i.e., a minimum of three feet clear-width for access aisles. (B) Bedroom usable square footage for Type B facilities shall be not less than 100 square feet per bed for a single-bed room and not less than 80 square feet per bed for a multiple-bed room. Bedrooms for persons with physical disabilities and/or mobility impairment shall meet accessibility standards for access around the bed or beds, i.e., a minimum of three feet clear-width for access aisles. A bedroom shall not be less than ten feet in the smallest dimension unless specifically approved otherwise by the department. (C) In facilities that have living units consisting of separate living/dining spaces and bedrooms, 10% of the required bedroom square-footage may be included as part of the living/dining space. (D) No more than four beds shall be in a bedroom, and not more than 50% of the beds shall be in bedrooms of three or more. (E) Each bedroom shall have at least one operable window with outside exposure. The window sill shall be no higher than 44 inches from the floor and shall be at or above grade level. The window will be operable from the inside, without the use of tools or special devices, and provide an operable section with a clear opening of not less than 5.7 square feet (minimum width of 20 inches by 41.2 inches high and minimum height of 24 inches by 34.2 inches wide). Windows required for evacuation will not be blocked by bars, shrubs, or any obstacle that would impede evacuation. Exceptions are as follows. (i) In large Type B facilities, the windowsill height from the floor shall be no more than 36 inches. (ii) In large Type B facilities, the bedroom window size shall not be less than 8.0% of the bedroom size. (iii) In small existing facilities, if the window is not required for the secondary means of escape, the window size and sill height requirements will not apply provided the primary means of escape for each sleeping room is not exposed to the common living spaces, such as the living room, dining room, and kitchen and the bedroom has an operable window for view and ventilation. (F) In the event the resident does not provide his or her own furnishings, the facility must provide for each resident a bed with mattress, chair, table or dresser, and enclosed closet space for clothing and personal belongings. Drawer space shall be provided. Furnishings provided by the facility must be maintained in good repair. (G) All resident rooms shall open upon an exit, corridor, living area, or public area and shall be arranged for convenient resident access to dining and recreation areas. (H) A staff or attendant area shall be provided on each floor or in each separate building. The area shall consist of a desk or writing surface and telephone. An exception is that Type A facilities of two stories or less in height, with separate buildings grouped together and connected by covered walks, need not have staff or attendant areas on each floor or in each building, provided that the areas are not more than 200 feet walking-distance from the furthest resident living unit. The areas must have a communication system and fire alarm annunciation indicating the units served. (I) Facilities which consist of two or more floors or separate buildings shall have a communication system from each resident living unit to a central staff location. This communication system may be a direct telephone, nurse call, or intercom. (2) Resident toilet and bathing facilities. (A) All bedrooms shall be served by separate private, connecting, or general toilet rooms for each sex (if facility houses both sexes). General toilet room or bathing room shall be accessible from a corridor or public space. A lavatory shall be readily accessible to each water closet. At least one water closet, lavatory, and bathing unit shall be provided on each sleeping floor accessible to residents of that floor. (B) One water closet and one lavatory for each six occupants or fraction thereof (portion less than six) is required. One tub or shower for each ten occupants or fraction thereof is required. (C) Privacy partitions and/or curtains shall be provided at water closets and bathing units in rooms for multi-resident use. (D) Tubs and showers shall have non-slip bottoms or floor surfaces, either built-in or applied to the surface. (E) Resident-use hot water for lavatories and bathing units will be maintained between 100 degrees Fahrenheit and 125 degrees Fahrenheit. (F) Towels, soap, and toilet tissue shall be available at all times for individual resident use. (3) Resident living areas. (A) Social-diversional spaces such as living rooms, day rooms, lounges, sun rooms, etc., shall be provided and have appropriate furniture. A minimum of 120 square feet shall be provided in at least one space regardless of number of residents. This space must have exterior windows providing a view of the outside. (B) The total space requirement for social/diversional areas shall be provided on a sliding scale as follows: [graphic] (C) Where a required way of exit (or a service way) is through such living or dining area, a pathway equal to the corridor width will normally be deducted for calculation purposes and discounted from that area. Such exit pathways must be kept clear of obstructions. (4) Resident dining areas. (A) A dining area shall be provided and have appropriate furnishings. A minimum of 120 square feet shall be provided in at least one space, regardless of number of residents. This space must have exterior windows providing a view of the outside. (B) Access to a dining area from the resident living units or bedrooms shall be covered. (C) The total space requirement for a dining area shall be provided on a sliding scale as follows: [graphic] (D) The total living/dining area(s) can be a single or interconnecting space with a minimum of 240 square feet of area. (5) Storage areas. The facility shall provide sufficient separate storage spaces or areas for the following: (A) administration for records and office supplies; (B) locked areas for medications and medical supplies. Poisons shall be stored in a locked area and separate from all medications and preparation; (C) equipment supplied by the facility for resident needs such as wheelchairs, walkers, beds, mattresses, etc.; (D) cleaning supplies (janitorial needs); (E) food storage; (F) clean linens and towels if furnished by the facility; (G) lawn and maintenance equipment, if needed; (H) janitor(s) closet with deep sink and hot and cold water (large facilities only); and (I) soiled linen storage or holding room(s), if the facility furnishes linen. (6) Kitchen. (A) The facility shall have a kitchen or dietary area to meet the general food service needs of the residents. It shall include provisions for the storage, refrigeration, preparation, and serving of food; for dish and utensil cleaning; and for refuse storage and removal. Exception: Food may be prepared off-site or in a separate building provided that the food is served at the proper temperature and transported in a sanitary manner. (B) Kitchens (main/dietary) for large facilities shall be as follows. (i) Kitchens will be evaluated on the basis of their performance in the sanitary and efficient preparation and serving of meals to residents and compliance with provisions covering dietary service in sec.146.41(h)(18) of this title (relating to Standards for Personal Care Facilities). (I) Consideration shall be given to planning for the type of meals served, the overall building design, the food service equipment, arrangement, and the work flow involved in the preparation and delivery of food. (II) Plans shall include a detailed kitchen layout designed by a registered or licensed dietitian or architect having knowledge in the design of food service operations. (ii) Kitchens shall be designed so that room temperature, at peak load (summertime), shall not exceed a temperature of 85 degrees Fahrenheit measured over the room at the five-foot level. The amount of supply air shall take into account the large quantities of air that may be exhausted at the range-hood and dishwashing area. (iii) Facilities for washing and sanitizing dishes and cooking utensils shall be provided. The kitchen shall contain a multi-compartment pot sink large enough to immerse pots and pans, and a mechanical dishwasher for washing and sanitizing dishes. Separation of soiled and clean dish areas shall be maintained, including air flow. (iv) A vegetable preparation sink shall be provided. It shall be separate from the pot sinks. (v) A supply of hot and cold water shall be provided. Hot water for sanitizing purposes shall be 180 degrees Fahrenheit or the manufacturer's suggested temperature for chemical sanitizers. (vi) The kitchen shall be provided with a hand-washing lavatory in the food preparation area with hot and cold water, soap, towel dispenser, and waste receptacle. The dish room area shall have ready access to a handwashing lavatory. (vii) Staff rest room facilities with lavatory shall be directly accessible to kitchen staff without traversing resident use areas. The rest room shall not open directly into the kitchen (i.e., provide a vestibule). An exception is that staff rest rooms in existing facilities must be provided, but may be located outside of the kitchen area. (viii) Janitorial facilities shall be provided exclusively for the kitchen and shall be located in the kitchen area. An exception is that Janitorial closets in existing facilities may be located outside of the kitchen area provided sanitary procedures are used to reduce the possibility of cross-contamination. (ix) Non-absorbent smooth finishes or surfaces shall be used on kitchen floors, walls, and ceilings. Such surfaces shall be capable of being routinely cleaned and sanitized to maintain a healthful environment. Counter and cabinet surfaces, inside and outside, shall also have smooth, cleanable, non-porous finishes. (x) Doors between kitchen and dining or serving areas shall have a 1/4-inch, fixed, wire-glass view panel mounted in a steel frame. (xi) A garbage can or cart washing area with drain and hot water shall be provided either on the interior or exterior of the facility. (xii) Floor drains shall be provided in the kitchen and dishwashing areas. Exception: Floor drains are not required in existing facilities provided the floors are kept clean. (xiii) A commercial range shall be provided and equipped with a commercial range hood and exhaust designed and installed in accordance with NFPA 96. (xiv) Grease traps shall be provided as required. (C) Food storage areas for large facilities shall be as follows. (i) Food storage areas shall provide for storage of a four-day minimum supply of non-perishable foods at all times. (ii) Shelves shall be adjustable wire-type. An exception is that existing facilities with wood shelves may continue to use the shelves provided they are kept sealed and clean. (iii) Walls and floors must have a non-absorbent finish to provide a cleanable surface. (iv) No foods shall be stored on the floor. Dollies, racks, pallets, or wheeled containers may be used to elevate foods not stored on shelving. (v) Dry foods storage shall have an effective venting system to provide for positive air circulation. (vi) The maximum room temperature for food storage shall not exceed 85 degrees Fahrenheit at any time. The measurement shall be taken at the highest food storage level, but not less than five feet from the floor. (vii) Food storage areas may be located apart from the food preparation area as long as there is space adjacent to the kitchen for necessary daily usage. (D) Auxiliary serving kitchens (not contiguous to food preparation/serving area) shall be as follows. (i) Where service areas other than the kitchen are used to dispense foods, these shall be designated as food service areas and shall have equipment for maintaining required food temperatures while serving. (ii) Separate food service areas shall have handwashing facilities as part of the food service area. (iii) Finishes of all surfaces, except ceilings, shall be the same as those required for dietary kitchens or comparable areas. (7) Laundry/linen services. (A) A large personal care facility which co-mingles and processes laundry on- site in a central location shall comply with the following. (i) The laundry shall be separated and provided with sprinkler protection if located in the main building. (Separation shall consist of a one-hour fire-rated partition carried to the underside of the floor or roof deck above.) Access doors shall be from the exterior or interior non-resident use areas, such as a small vestibule or service corridor. (ii) The laundry shall be provided with the following physical features: (I) a soiled linen receiving, holding, and sorting room with a floor drain and forced exhaust to the exterior which shall operate at all times there is soiled linen being held in this area. (This may be combined with the washer section.); (II) a general laundry work area which is separated by partitioning two areas- a washer section and a dryer section; (III) a storage area for laundry supplies; (IV) a folding area; (V) adequate air supply and ventilation for staff comfort without having to rely on opening a door that is part of the fire wall separation; and (VI) provisions to exhaust heat from dryers and to separate dryer make-up air from the habitable work areas of the laundry. (B) If linen is processed off the site, the following shall be provided on the premises: (i) a soiled linen holding room (provided with adequate forced exhaust ducted to the exterior); and (ii) a clean linen receiving, holding, inspection, sorting or folding, and storage room(s). (C) Resident-use laundry, if provided, shall utilize residential type washers and dryers. If more than three washers and three dryers are located in one space, the area shall be one-hour fire-separated or provided with sprinkler protection. sec.146.63. Plans, Approvals, and Construction Procedures. (a) Submittal of preliminary plans. (1) When construction is contemplated for new buildings, additions, conversion of buildings not licensed by the department, or remodeling of existing licensed facilities, one copy of the preliminary proposed plans shall be submitted to the department (architectural section) for review prior to the preparation of working drawings. For additions, an overall plan similar to subsection (c)(4) of this section shall be included. (2) Fees for plan review will be required in accordance with sec.146.19 of this title (relating to Fees for Plan Reviews, Construction Inspection Services, and Feasibility Inspection Services). (3) The project will be considered abandoned and the plans will be destroyed if final plans are not submitted to the department within 24 months from the submittal date of the preliminary plans for review and approval. Resubmittal of plans and additional plan review fees will be required if, after the abandonment period, the project will be constructed. (4) The plans shall be drawn to scale, shall indicate the usage of all spaces, sizes of areas and rooms, and the type and location of fixed equipment. New construction or additions shall include a site plan showing all pertinent conditions including grades and all structures on the site. Written approval of the local health authority, building department, and of the local fire marshal having jurisdiction shall be submitted. (5) A general description of the surrounding area and vicinity (commercial, residential, rural, shopping, available transportation, etc.) shall be furnished for new locations. (b) Submittal of final plans. (1) Before construction is begun, one copy of working drawings and specifications (contract documents) in sufficient detail to interpret compliance with these standards and assure proper construction shall be submitted to the department for review within 60 days of receipt of such documents and required plan review fee. These documents shall be prepared according to accepted architectural practice and shall include general construction, special conditions, schedules, and any other pertinent information that the department may require. In addition, two extra copies of the floor plan (only) shall be submitted with the complete set of plans. (2) The project will be considered abandoned and the plans destroyed if the project is not under construction and continuing construction progress shown within 12 months from the date of the final review of the plans. Resubmittal of plans and full plan review will again be required if, after the abandonment period, the project will be constructed. Fees will be as required in accordance with sec.146.19 of this title. (3) Final copies of plans shall have (in the reproduction process by which plans are reproduced) a title block showing name of facility, person, or organization preparing the sheet, sheet numbers, facility address, and drawing date. Certain parts of final plans, designs, and specifications shall bear the seal of a registered professional engineer approved by the State Board of Registration for Professional Engineers to operate in Texas. These certain parts include sheets and sections covering structural, electrical, mechanical, and sanitary engineering. Contract documents for additions, remodeling, and construction of an entirely new facility shall be prepared by an architect licensed by the Texas State Board of Architectural Examiners. Drawings shall bear the seal of the architect. (4) A final plan for a major addition to a facility shall include a basic layout to scale of the entire building onto which the addition connects. North direction shall be shown. Usually the entire basic layout can be to scale such as 1/16-inch per foot or 1/32-inch per foot for very large buildings. (5) Plans and specifications for conversions or remodeling shall be complete for all parts and features involved. (6) It is the sponsor's responsibility to employ qualified personnel to prepare the contract documents for construction. If the contract documents have errors or omissions to the extent that conformance with standards cannot be reasonably assured or determined, a revised set of documents for review may be requested. For additions and remodeling to existing licensed facilities, construction shall not be started until the final contact documents are reviewed and approved in writing by the department within 60 days of receipt of final drawings and required plan of review fee. (7) The review of plans and specifications by the department is based on general utility, the minimum licensing standards, and conformance to the Life Safety Code, and is not to be construed as all-inclusive approval of the structural, electrical, or mechanical components. (c) Contract documents. (1) Site-plan documents shall include grade contours; streets (with names); North arrow; fire hydrants, fire lanes, utilities, public or private; fences; and unusual site conditions, such as ditches, low water levels, other buildings on-site, and indications of buildings five feet or less beyond site property lines. (2) Foundation plan documents shall include general foundation design and details. (3) Floor plan documents shall include room names, numbers, and usages; doors (numbered) including swing; windows; legend or clarification of wall types; dimensions; fixed equipment; plumbing fixtures; kitchen basic layout; and identification of all smoke barrier walls (outside wall to outside wall) or fire walls. (4) For both new construction and additions or remodeling to existing buildings, an overall plan of the entire building shall be drawn or reduced to fit on an 8 1/2-inch by 11-inch sheet; submit two reduced plans for file record. (5) Schedules shall include door materials, widths, types; window materials, sizes, types; room finishes; and special hardware. (6) Elevations and roof plan shall include exterior elevations, including material note indications and any rooftop equipment; roof slopes, drains, gas pipes, etc.; and interior elevations where needed for special conditions. (7) Details shall include wall sections as needed (especially for special conditions); cabinet and built-in work, basic design only; cross sections through buildings as needed and miscellaneous details and enlargements as needed. (8) Building structure documents shall include structural framing layout and details (primarily for column, beam, joist, and structural building); roof framing layout (when cannot be adequately shown on cross section); and cross sections in quantity and detail to show sufficient structural design and structural details as necessary to assure adequate structural design and calculated design loads. (9) Electrical documents shall include electrical layout, including lights, convenience outlets, equipment outlets, switches, and other electrical outlets and devices; service, circuiting, distribution, and panel diagrams; exit light system (exit signs and emergency egress lighting); emergency electrical provisions (such as generators and panels); staff communication system; fire alarm and similar systems (such as control panel, devices, and alarms); and sizes and details sufficient to assure safe and properly operating systems. (10) Plumbing documents shall include plumbing layout with pipe sizes and details sufficient to assure safe and properly operating systems, water systems, sanitary systems, gas systems, and other systems normally considered under the scope of plumbing, fixtures, and provisions for combustion air supply. (11) Heating, ventilating and air-conditioning systems (HVAC) documents shall include sufficient details of HVAC systems and components to assure a safe and properly operating installation including, but not limited to, heating, ventilating, and air-conditioning layout, ducts, protection of duct inlets and outlets, combustion air, piping, exhausts, and duct smoke and/or fire dampers; and equipment types, sizes, and locations. (12) Sprinkler system documents shall include plans and details of National Fire Protection Association (NFPA) designed systems; plans and details of partial systems provided only for hazardous areas; and electrical devices interconnected to the alarm system. (13) Other layout, plans, or details as may be necessary for a clear understanding of the design and scope of the project, including plans covering private water or sewer systems shall be reviewed by local health or wastewater authority having jurisdiction. If there is no local authority, then the plans will be reviewed by the department. (14) Specifications shall include installation techniques; quality standards and/or manufacturers; references to specific codes and standards; design criteria; special equipment; hardware; painting; and any others as needed to amplify drawings and notes. (d) Construction and initial survey of completed construction. (1) Construction phase. (A) The department shall be notified in writing of construction start. (B) All construction shall be done in accordance with the completed plans and specifications as submitted for review and as modified in accordance with review requirements. Any deviations therefrom must have prior approval of the department. Revised drawings may be required if the change is significant. (C) A preliminary-stage construction inspection is required unless otherwise instructed by the department. A minimum of three weeks notification prior to applying interior wall and ceiling surfaces (except for smoke barrier wall surfaces which shall be completed) must be given so that the inspector may schedule the preliminary visit. (2) Initial survey of completed construction. (A) Upon completion of construction, including grounds and basic equipment and furnishings, a final construction inspection (initial survey) of the facility is required to be performed by the department (architectural section) prior to admitting residents. A minimum of three weeks advance notice is needed. The completed construction shall have the written approval of the local authorities having jurisdiction, including the fire marshal, health department, and building inspector. (B) After the completed construction has been surveyed by a representative of the architectural section of the department and found acceptable, this information will be conveyed to the licensing officer of the department 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. Note that 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 residents between the time it receives initial approval from the architectural section and the time the license is issued. (C) The following documents must be available to the department's NFPA 101 inspecting surveyor at the time of the survey of the completed building: (i) written approval of local authorities as called for in subparagraph (A) of this paragraph; (ii) written certification of the fire alarm system by the installing agency (Form FML-009) of the Texas State Fire Marshal); (iii) documentation of materials used in the building which are required to have a specific limited fire or flame spread-rating, including special wall finishes or floor coverings, flame retardant curtains (including cubicle curtains), rated ceilings, etc. This must include a signed letter from the installer, in the case of carpeting, etc., verifying that the carpeting installed is named in the laboratory test document; (iv) approval of the completed sprinkler system installation by the Texas Department of Insurance or designing engineer. A copy of the material list and test certification shall be available; (v) service contracts for maintenance and testing of alarm systems, sprinkler systems, etc.; (vi) a copy of gas test results of the facility's gas lines from the meter; (vii) a written statement from an architect/engineer stating that, to the best of his/her knowledge, the building was constructed in accordance with the approved drawings; and (viii) any other such documentation as needed and called for. (3) Nonapproval of new construction. (A) If, during the initial on-site survey of completed construction, the surveyor finds certain basic requirements not met, he may recommend to the department that the facility not yet be licensed and approved for occupancy. Such basic items may include the following: (i) substantial changes made during construction which were not submitted to the department for review and which may require revised "as-built" drawings to cover the changes. This may include architectural, structural, mechanical, and electrical items (reference subsection (b)(3) of this section); (ii) construction which does not meet minimum code or licensure standards for basic requirements such as corridors being less than required width, ceilings installed at less than the minimum seven-foot six-inch height, resident bedroom dimensions less than required, and other such features which would disrupt or otherwise adversely affect the residents and staff if corrected after occupancy; (iii) no written approval by local authorities; (iv) fire protection systems not completely installed or not functioning properly, including, but not limited to, fire alarm systems, emergency power and lighting, and sprinkler systems; (v) required exits not all usable according to NFPA 101 requirements; (vi) telephone not installed or not properly working; (vii) sufficient basic furnishings, essential appliances, and equipment are not installed or not functioning; and (viii) any other basic operational or safety feature which the surveyor, as the authority having jurisdiction, encounters which in his judgment would preclude safe and normal occupancy by residents on that day. (B) If the surveyor encounters only less-basic (and less important) deficiencies, licensure may be recommended based on an approved written plan of correction from the facility's administrator. (C) Copies of reduced size floor plans (on an 8 1/2-inch by 11-inch sheet) shall be submitted in duplicate to the department for record/file use and for the facility's use for evacuation plan, fire alarm zone identification, etc. The plan shall contain basic legible information such as scale, room usage names, actual bedroom numbers, doors, windows, and any other pertinent information. (e) Feasibility inspections. A feasibility inspection may be requested on any existing structure that is proposed to be converted to personal care use. This inspection shall be requested through the department. A fee will be charged as required by sec.146.19 of this title (relating to Fees for Plan Reviews Construction Inspection Services, and Feasibility Inspection Services). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 16, 1993. TRD-9321777 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1993 For further information, please call: (512) 458-7236 Subchapter E. Inspections, Surveys, and Visits 25 TAC sec.146.81, sec.146.82 The new sections are adopted under the Personal Care Facility Licensing Act, Health and Safety Code, Chapter 247, which provides the Board of Health (board) with the authority to adopt rules concerning personal care homes; and sec.12.001 which provides the Board with authority to adopt rules to implement every duty imposed on the board, the department, and the commissioner of health. sec.146.81. Procedural Requirements. (a) Texas Department of Health (department) inspection and survey personnel will perform inspections and surveys, follow-up visits, complaint investigations, investigations of abuse or neglect, and other contact visits from time to time as they deem appropriate or as required for carrying out the responsibilities of licensing. (b) An inspection may be conducted by an individual inspector or surveyor or by a team, depending on the purpose of the inspection or survey, size of facility, levels of care and service provided by the facility, and other factors. The team composition may vary from two members to several members. However, an inspection by a single person may be necessary from time to time. (c) To determine standard compliance which cannot be verified during regular working hours, night or weekend inspections may be conducted to cover specific segments of operation and will be completed with the least possible interference to staff and residents while satisfying the intent of the inspection. (d) With respect to being unannounced or announced, inspections, surveys, and other visits shall meet the following. (1) All inspections, surveys, and other visits that are routine in nature and that are made for the purpose of determining the appropriateness of resident care and day-to-day operations of a facility will be unannounced; any exceptions must be justified. (2) Call-back visits will be unannounced, although it is recognized that the schedule of a call-back visit often relates to a date of correction made known to or by a facility in advance; any exceptions must be justified. (3) Any nonroutine or special inspection, survey, and other visit involving that appropriateness of some aspect of resident care will be unannounced unless particular circumstances justify otherwise. (4) Complaint investigations will be unannounced. (5) Some inspections or visits may be announced, such as: (A) inspections or visits to determine the progress or completion of physical plant construction or repairs, equipment installation or repairs, or systems installation or repairs; and (B) conditions when certain emergencies arise, such as fire, windstorm, or malfunctioning or nonfunctioning of electrical or mechanical systems. (6) Consultation visits should be arranged with the facility in advance; inspections to determine how a physical plant may be expanded or upgraded may be considered consultation visits. (7) The inspections, surveys, and visits described in paragraphs (1)-(6) of this subsection are listed as examples and are not intended to be all-inclusive. (e) The facility shall make all resident and employee books, records, and other documents maintained by or on behalf of a facility accessible to the department upon request. (1) The department is authorized to photocopy documents, photograph residents, and use any other available recordation devices to preserve all relevant evidence of conditions found during an inspection, survey, or investigation that the department reasonably believes threaten the health and safety of a resident. (2) Examples of records and documents which may be requested and photocopied or otherwise reproduced are admission sheets, medication profiles, observation notes, medication refusal notes, and menu records. (3) When the facility is requested to furnish the copies, the facility may charge the department at the rate not to exceed the rate charged by the department for copies. Collection shall be by billing the department. The procedure of copying will be the responsibility of the administrator or his designee. If copying requires the records be removed from the facility, a representative of the facility will be expected to accompany the records and assure their order and preservation. (4) The department will protect the copies for privacy and confidentiality in accordance with recognized standards of medical records practice, applicable state laws, and department policy. (f) The department shall provide for a special team to conduct validation surveys or verify findings of previous licensure surveys. (1) At the department's discretion, based on record review, random sample, or any other determination, the department may assign a team to conduct a validation survey. The department may use the information to verify previous determinations or identify training needs to assure consistency in deficiencies cited and in punitive actions recommended throughout the state. (2) Facilities will be required to correct any additional deficiencies cited by the validation team but will not be subject to any new or additional punitive action. sec.145.82. Determinations and Actions Pursuant to Inspections. (a) The Texas Department of Health (department) will determine if a facility meets the licensing rules, including both physical plant and facility operation requirements. (b) Violations of regulations will be listed on forms designed for the purpose of the inspection or will be listed in letter form when administrative penalties are being proposed. (c) At the conclusion of an inspection or survey, the violations will be discussed in an exit conference with the facility's management. A written list of the violations will be 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) will be communicated to the facility in writing within 10 working days of the exit conference, and the facility will have 10 working days to communicate a reply before such additional violation is added to or made a part of the permanent record. Copies of any narratives or similar papers written to further describe the conditions found will be furnished to the facility. (d) Violations found during complaint investigations will be discussed with the facility management and a plan of correction obtained; the violations will be furnished in writing to the facility, as well as any supporting narratives, but shall not reveal the source of the complaint. (e) A clear and concise summary, in nontechnical language, of each licensure inspection, inspection of care, and/or complaint investigation will be provided by the department. That summary will be in a form outlining significant violations noted at the time of the visit, but not to include names of residents, staff, or any other statement that would identify individual residents or other prohibited information under general rules of public disclosure. The summary will be provided to the facility at the time the report of contact or similar document is provided. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 16, 1993. TRD-9321778 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 834-6770 Subchapter F. Abuse, Neglect and Exploitation; Complaint and Incident Reports and Investigations 25 TAC sec.sec.146.101-146.107 The new sections are adopted under the Personal Care Facility Licensing Act, Health and Safety Code, Chapter 247, which provides the Texas Board of Health (board) with the authority to adopt rules concerning personal care homes; and sec.12.001 which provides the Board with authority to adopt rules to implement every duty imposed on the board, the department, and the commissioner of health. sec.146.105. Investigations of Incidents and Complaints. (a) In accordance with the memorandum of understanding which is adopted by reference in sec.111.1 of this title (relating to Memorandum of Understanding Concerning Protective Services for the Elderly), the Texas Department of Health (department) will receive and investigate reports of abuse, neglect, and exploitation of elderly and disabled persons residing in facilities licensed under this chapter. (b) The department will only investigate complaints of abuse, neglect, or exploitation when the act occurs in the facility, when such licensed facility is responsible for the supervision of the resident at the time the act occurs, or when the alleged perpetrator is affiliated with the facility. Other complaints of abuse, neglect, or exploitation not meeting this criteria will be referred to the Texas Department of Protective and Regulatory Services. (c) The primary purpose of an investigation is the protection of the resident. If the department determines that, for protection of the resident from further abuse or neglect, the resident should be removed from the facility, the department will petition a court for temporary care and protection of the resident. (d) Complaint investigations shall include a visit or visits to the resident and the facility and an interview with the resident. If the facility fails to admit department staff for such investigations, the department will seek a probate or county court order for admission. (e) Investigations of reports do not exonerate facilities, who may still be subject to the provisions of subchapter H of this chapter (relating to Enforcement). (f) If the initial phase of an incident or complaint investigation concludes that no abuse or neglect adversely affecting the physical or mental health or welfare of a resident has occurred, no further investigation will be undertaken. (g) In cases concluded to be abuse, neglect, or exploitation, the written report of the investigation by the department, along with its recommendations, shall be submitted to the appropriate district attorney and law enforcement agency, as well as to the appropriate state agencies, upon request. The investigation shall include: (1) the nature, extent and cause of such abuse or neglect; (2) the identity of the person responsible for the abuse or neglect; (3) the names and conditions of the other institution residents who are affected or likely to be affected by the investigation as they relate to the abuse or neglect alleged, not necessarily their medical diagnoses; (4) the evaluation of the persons responsible for the care of the institution residents including the adequacy of the persons in numbers and the competence of persons to deliver the care intended, including specific evaluation individually of those persons directly involved in causing abuse or neglect; and (5) the adequacy of the institution environment which may include general operation, competence of staff, attitude of staff, physical environment, and other considerations. sec.146.106. General Provisions. (a) Confidentiality. All reports, records, and working papers used or developed by the Texas Department of Health (department) in an investigation are confidential, and may be released only as provided in this subsection. (1) Completed written investigation reports on cases concluded to be abuse or neglect shall be furnished to the district attorney and appropriate law enforcement agency. The department also may release these reports to any other public agency the department deems appropriate to the investigation. (2) Completed written investigation reports are open to the public, provided the report is deidentified. The process of deidentification means removing all names and other personally identifiable data, including any information from witnesses and others furnished to the department as part of the investigation. (3) The reporter and the facility will be notified of the results of the department's investigation of a reported case of abuse or neglect, whether the department concluded that abuse or neglect occurred or did not occur. (b) Immunity. A person who reports suspected instances of abuse or neglect shall, in the absence of bad faith or malicious conduct, be immune from civil or criminal liability which might have otherwise resulted from making the report. Such immunity shall extend to participation in any judicial proceeding resulting from the report. (c) Privileged communications. In a proceeding regarding a report or investigation conducted under this subchapter, evidence shall not be excluded on a claim of privileged communication except in the case of a communication between an attorney and a client. (d) Central registry. The department shall maintain a central registry of reported cases of abuse and neglect at the central office in Austin. sec.146.107. Reports Relating to Resident Deaths. (a) All licensed facilities shall submit to the Texas Department of Health (department) a report of all deaths of any persons residing in the facility. This report shall include those persons transferred from the facilities to a hospital who expire within 24 hours after transfer. (b) The department shall prepare a standard form that shall be completed by the facility and submitted to the department within 10 working days after the last day of the month in which a resident death occurs. The form shall include: (1) name of deceased; (2) social security number of the deceased; (3) date of death; and (4) name and address of the facility. (c) These reports are confidential under the Health and Safety Code, sec.242. 134; however, licensed facilities shall make available historical statistics provided to them by the department and shall provide the statistics if requested by applicants for admission or their representative. In addition, data may be taken from the reports as noted in subsection (d) of this section. (d) The department shall produce statistical information of official causes of death to determine patterns and trends of incidents of death among the elderly and in specific facilities and make this information available to the public upon request. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 16, 1993. TRD-9321779 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 834-6770 Subchapter G. Miscellaneous Provisions 25 TAC sec.sec.146.121-146.127 The new sections are adopted under the Personal Care Facility Licensing Act, Health and Safety Code, Chapter 247, which provides the Texas Board of Health (board) with the authority to adopt rules concerning personal care homes; and sec.12.001 which provides the Board with authority to adopt rules to implement every duty imposed on the board, the department, and the commissioner of health. sec.146.123. Interpretive Memoranda. (a) The Texas Department of Health (department) will issue in a consistent and formal manner and publish when appropriate in the Texas Register interpretive memoranda for the purpose of explaining, clarifying, determining sense and meaning, or determining application of various elements of rules and standards involved in the department's licensing functions relating to regulation of facilities providing long-term health care. (b) Each facility will be notified of applicable new rules at the time such rules are filed with the Texas Register; these notifications are intended to provide notice of rules in advance of inspections, unless otherwise required. Similarly, each facility will be notified of new applicable interpretive memoranda in codified form as soon as such memoranda are in final form and are released for use or are filed with the Texas Register. Where interpretive memoranda are effective for use at the time of release or publication, unless otherwise required, an additional time of not less than 20 days will be given prior to application to the facility of the content of an interpretive memorandum in those cases where an additional obligation would be imposed upon the facility. Rules or interpretive memoranda pertaining to the internal operations of the department are exempted. sec.146.124. Procedures for Inspection of Public Records. (a) Procedures for inspection of public records will be in accordance with the Texas Open Records Act, Texas Civil Statutes, Article 6252-17a, and as further described in this section. (b) The Bureau of Long-Term Care (bureau), Texas Department of Health (department), will be responsible for the maintenance and release of records on licensed facilities, and other related records. (c) The application for inspection of public records is subject to the following criteria. (1) The application shall be made to the Bureau of Long Term-Care, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756. (2) The requestor shall identify himself/herself. (3) The requestor shall give reasonable prior notice of the time for inspection and/or copying of records. (4) The requestor shall specify the records requested. (5) On written applications, if the bureau is unable to ascertain the records being requested, the bureau may return the written application to the requestor for further specificity. (6) The bureau shall provide the requested records as soon as possible. However, if the records are in active use, or in storage, or time is needed for proper deidentification or preparation of the records for inspection, the bureau shall so advise the requestor and set an hour and date within a reasonable time when the records will be available. (d) Original records may be inspected or copied, but in no instance will original records be removed from department offices. (e) Records maintained by the bureau are open to the public, with the following exceptions: (1) incomplete reports, audits, evaluations, and investigations made of, for, or by the department are confidential; (2) reports of abuse and neglect are confidential; (3) all names and related personal, medical, or other identifying information about a resident are confidential; (4) information about any identifiable person which is defamatory or an invasion of privacy is confidential; (5) information identifying complainants or informants is confidential; (6) itineraries of surveys and inspections are confidential; and (7) to implement this subsection, the bureau may not alter or deidentify original records. Instead, the bureau will make available for public review or release only a properly deidentified copy of the original record. (f) Charging for copies of records shall be in accordance with the following criteria. (1) If the requestor simply wants to inspect records, the requestor will specify the records to be inspected and the bureau will make no charge for this service, except where the bureau chief determines that a charge is appropriate based on the nature of the request. (2) If the requestor wants to request copies of a record, the requestor will specify in writing the records to be copied on an appropriate bureau form, and the bureau will complete the form by specifying the cost of the records which the requestor shall pay in advance. Checks and other instruments of payment will be made payable to the Texas Department of Health. (3) Any expenses for standard-size copies incurred in the reproduction, preparation, or retrieval of records shall be borne by the requestor on a cost basis in accordance with costs established by the State Purchasing and General Services Commission or the department for office machine copies. (4) For documents that are mailed, the department will charge for the postage at the time it charges for the reproduction. All applicable sales taxes will be added to the cost of copying records. (5) When a request involves more than one facility, each facility will be considered a separate request. (g) The bureau will make a reasonable effort to furnish records promptly and will extend to the requestor all reasonable comfort and facility for the full exercise of the rights granted by the Open Records Act. sec.146.125. Resident's Bill of Rights and Provider Bill of Rights. (a) Resident's bill of rights. (1) Each personal care facility shall post the resident's bill of rights, as provided by the department, in a prominent place in the facility and be written in the primary language of each resident. (2) In addition to other rights a resident has as a citizen, a resident has the rights provided by this section. (3) The resident's bill of rights must provide that each resident in the personal care facility has the right to: (A) not be physically or mentally abused or exploited; (B) not be physically or chemically restrained unless the restraint: (i) is necessary in an emergency to protect the resident or others from injury after the individual harms or threatens to harm himself or another; or (ii) is authorized in writing by a physician for a limited and specified period of time. (C) if mentally retarded, participate in a behavior modification program involving use of restraints or adverse stimuli only with the informed consent of a guardian. (D) be treated with respect, consideration, and recognition of his or her dignity and individuality. A resident shall receive personal care and private treatment in a safe and decent living environment. (E) not be denied appropriate care on the basis of his or her race, religious practice, color, national origin, sex, age, handicap, marital status, or source of payment. (F) not be prohibited from communicating in his or her native language with other individuals or employees for the purpose of acquiring or providing any type of treatment, care, or services; (G) be encouraged and assisted in the exercise of his or her rights. A resident may present grievances on behalf of the resident or others to the manager, state agencies, or other persons without threat of reprisal in any manner. The person providing services shall develop procedures for submitting complaints and recommendations by residents and for assuring a response by the person providing services; (H) receive and send unopened mail; (I) unrestricted communication, including personal visitation with any person of the resident's choice, including family members and representatives of advocacy groups and community service organizations, at any reasonable hour; (J) make contacts with the community and to achieve the highest level of independence, autonomy, and interaction with the community of which the resident is capable; (K) manage his or her financial affairs, or shall be given at least a quarterly accounting of financial transactions made on his or her behalf by the facility should the facility accept his or her written delegation of this responsibility to the facility for any period of time in conformance with state law; (L) have confidential records which cannot be released without his or her written permission. A resident may inspect his or her personal records maintained by the person providing services; (M) have the person providing services answer questions concerning the resident's health, treatment, and condition unless a physician determines that the knowledge would harm the resident. The physician must record the determination in the resident's record; (N) choose a personal physician; (O) participate in planning his or her service plan and medical treatment; (P) be given the opportunity to refuse treatment after the possible consequences of refusing treatment are fully explained; (Q) unaccompanied access to a telephone at a reasonable hour or in case of an emergency or personal crisis; (R) privacy (not a single bedroom); (S) retain personal clothing and possessions as space permits. The number of personal possessions may be limited for health and safety reasons which are documented in the resident's medical record. The number of personal possessions may be limited for the health and safety of other residents; (T) determine his or her dress, hair style, or other personal effects according to individual preference, except the resident has the responsibility to maintain personal hygiene; (U) retain and use personal property in his or her immediate living quarters and to have an individual locked area (cabinet, closet, drawer, footlocker, etc.) in which to keep personal property; (V) refuse to perform services for the facility, except as contracted for by the resident and operator; (W) be informed, in writing, by the person providing services of available services and the applicable charges if the services are not covered by Medicare, Medicaid, or other forms of health insurance; (X) not be transferred or discharged unless: (i) the resident's medical needs require transfer; (ii) the resident's health and safety or the health and safety of another resident requires transfer or discharge; (iii) the resident fails to pay for services, except as prohibited by federal law; or (iv) the resident repeatedly abuses alcohol, drugs, facility smoking regulations, or manifests severe and intentional anti-social behavior. (Y) not be transferred or discharged, except in an emergency situation. The responsible party of the resident and the attending physician shall be notified immediately; (Z) leave the facility temporarily or permanently, subject to contractual or financial obligations; and (AA) not be deprived of any constitutional, civil, or legal right solely by reason of residence in a personal care facility; (BB) have access to the service of a representative of the State Long-Term Care Ombudsman Program, Texas Department on Aging. (b) Provider's bill of rights. (1) Each personal care facility shall post a providers' bill of rights in a prominent place in the facility. (2) The providers' bill of rights must provide that a provider of personal care services has the right to: (A) be shown consideration and respect that recognizes the dignity and individuality of the provider and personal care facility; (B) terminate a resident's contract for just cause after a written 30-day notice; (C) terminate a contract immediately, after notice to the department, if the provider finds that a resident creates a serious or immediate threat to the health, safety, or welfare of other residents of the personal care facility; (D) present grievances, file complaints, or provide information to state agencies or other persons without threat of reprisal or retaliation; (E) refuse to perform services for the resident or the resident's family other than those contracted for by the resident and the provider; (F) contract with the community to achieve the highest level of independence, autonomy, interaction, and services to residents; (G) access patient information concerning a client referred to the facility, which must remain confidential as provided by law; (H) refuse a person referred to the facility if the referral is inappropriate; (I) maintain an environment free of weapons and drugs; and (J) be made aware of a resident's problems, including self-abuse, violent behavior, alcoholism, or drug abuse. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 16, 1993. TRD-9321780 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 834-6770 Subchapter H. Enforcement 25 TAC sec.sec.146.151-146.156 The new sections are adopted under the Personal Care Facility Licensing Act, Health and Safety Code, Chapter 247, which provides the Texas Board of Health (board) with the authority to adopt rules concerning personal care homes; and sec.12.001 which provides the Board with authority to adopt rules to implement every duty imposed on the board, the department, and the commissioner of health. sec.146.151. Enforcement Generally. (a) Determining degree of noncompliance and determining disciplinary actions. (1) Texas Department of Health (department) personnel will determine the extent to which violations adversely affect the licensure status of the facility. (2) A facility may have violations which are not serious and do not impose an immediate threat to the residents and yet be considered to be in substantial compliance as long as those violations can be reasonably expected to be corrected with acceptable methods and within an acceptable time. (3) When department personnel determine that a facility is out of compliance with requirements to a degree that the facility must be specially warned beyond the routine methods of apprising the facility of its violations, a warning letter will be sent by certified mail to the facility. (b) Enforcement procedures. When a violation of Health and Safety Code, Chapter 247, the rules of this chapter, or an order adopted or license issued under the Chapter 247 occurs, the department is authorized to: (1) suspend a license; (2) revoke a license; or (3) refer the violation to the Attorney General for injunction and/or the assessment of civil penalties. sec.146.152. Suspension. (a) When a serious violation occurs or when a series of violations occur such that the event or series of events may (or could) jeopardize the health and safety of residents, the Texas Department of Health (department) may suspend the license. (b) Suspension of a license may occur simultaneously with any other enforcement provision available to the department. (c) Unless accompanied by an Emergency Closure Order, the facility will be notified by certified mail of the department's intent to suspend the license. The facility shall have 20 days from receiving the certified mail notice within which to request a hearing, in accordance with sec.146.156 of this title (relating to Administrative Hearings). (d) If the department suspends a license, the suspension shall remain in effect until the department determines that the reason for suspension no longer exists. The department shall conduct an on-site investigation prior to making a determination. During the time of suspension, the suspended licensee shall return the license to the department. sec.146.153. Revocation. (a) When a serious violation occurs, such that the health and safety of residents is jeopardized, the Texas Department of Health (department) may revoke the license. (b) The department may revoke a license if the licensee: (1) submitted false or misleading statements in the application for a license or any accompanying attachments; (2) used subterfuge or other evasive means to obtain the license; or (3) concealed a material fact in the application for a license or failed to disclose information required in sec.146.13 of this title (relating to Applicant Disclosure Requirements) that would have been the basis to deny the license under sec.146.17 of this title (relating to Criteria for Denying a License or Renewal). (c) Revocation of a license may occur simultaneously with any other enforcement provision available to the department. (d) Unless accompanied by an Emergency Closure Order, the facility will be notified by certified mail of the department's intent to revoke a license. The facility shall have 20 days from receiving the certified mail notice within which to request a hearing, in accordance with sec.146.156 of this title (relating to Administrative Hearings). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 16, 1993. TRD-9321781 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 834-6770 Chapter 152. Certification of Long-Term Care Facilities 25 TAC sec.sec.152.1-152.9 The Texas Department of Health (department) adopts new sec.sec.152.1-152.9, concerning certification of long-term care facilities. Section 152.7 is adopted with changes to the proposed text as published in the October 20, 1992, issue of the Texas Register (17 TexReg 7423). Sections 152.1-152.6 and 152.8-152.9 are adopted without changes and will not be republished. The new sections cover procedures and practices the department follows in certifying, terminating certification, or taking action relating to long term care facilities participating in the federal Medicare and Medicaid programs. The new sections replace, modify, and update the existing rules in Chapter 145 which are being repealed in this issue of the Texas Register. The department received several comments on the proposed new sections from individuals, groups, associations, and agencies. A summary of the comments and the department's responses are as follows. COMMENT: sec.152.5, specify that Chief, Bureau of Long-Term Care is responsible for final decisions because decisions to certify or decertify should be centralized. RESPONSE: The department disagrees as this is an internal management procedure which should not be included in rules. COMMENT: sec.152.6(b)(1), this procedure denies a facility the right to appeal specific deficiencies that are unwarranted unless there is punitive action; accordingly, there is not due process. RESPONSE: The department disagrees because the rules elsewhere adequately provide for appeals and due process. COMMENT: sec.152.7, delete all references to automatic cancellation clause (ACC) in the appeals process because the Health Care Financing Administration no longer uses an ACC in its procedures. RESPONSE: The department disagrees because ACC still is a federal procedure covering intermediate care facilities for the mentally retarded (ICF/MR facilities). As such, the appeals process in sec.152.7 needs to include ACC actions in the appeals process. Accordingly, the department has appropriately modified subsections (a) and (b) to show that the formal hearing process still applies to an ACC action for ICF/MR facilities. COMMENT: sec.152.7(b)(1). Expedite the formal hearing process. Otherwise, all individuals could be discharged and then, after the hearing, it may be determined that an error had been made. RESPONSE: The department disagrees because existing rules provide for due process. The following association and organization commented on proposed Chapter 152: Texas Health Care Association and Exceptional Living, Inc. The commenters expressed concern about specific provisions and suggested changes to the proposal. The new sections are adopted under the Social Security Act, Titles XVIII and XIX, which provides that the state licensing agency will be the survey agency in the State of Texas to survey facilities which participate in the Medicare and Medicaid program; and Health and Safety Code, sec.12.001, which provides the Texas Board of Health (board) with authority to adopt rules to implement every duty imposed on the board, the department, and the commissioner of health. sec.152.7. Appeals. (a) Informal reconsideration for facilities other than intermediate care facilities for the mentally retarded. (1) Prior to the effective date of any termination of certification, the Texas Department of Health (department) shall give the facility an opportunity for an informal reconsideration. (2) Elements of the informal reconsideration are as follows. (A) The department shall give the facility written notice of the proposed termination of certification and the findings upon which the action is based. (B) The facility shall have the opportunity to refute the department's findings in writing. If the facility does not respond during the specified period, the action will be taken. If there is no response by the facility, the department is not required to take any other action on the appeals process prior to the proposed action. (C) If the facility does respond as required in subparagraph (B) of this paragraph, the department will give the facility a written affirmation or reversal of the proposed action. (b) Formal hearing for all facilities. (1) The facility shall have the opportunity for a formal hearing after the effective date of the termination of certification, denial of certification, or other adverse certification recommendation. (2) A facility desiring a formal hearing shall make a request to the department, in writing, within 20 days after the effective date of the action. Upon receipt of the request, the department will notify the department's Office of General Counsel to institute formal hearing procedures. Failure of the facility to request a formal hearing within the 20 days shall constitute a waiver of the right to such hearing. (3) The formal hearing will be conducted in accordance with to the department's formal hearing procedures in Chapter 1 of this title (relating to Texas Board of Health). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 9, 1993. TRD-9321494 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 834-6770 Chapter 153. Adult Day Care and Adult Day Health Care Facilities Subchapter A. Introduction The Texas Department of Health (department) adopts new sec.sec.153.1-153.2, 153.11-153.18, 153.20, 153.41-153.43, 153.61, 153.81, 153.82, 153.101-153.104, 153.121, and 153.122 concerning adult day care and adult day care health care facilities. Sections 153.2, 153.11- 153.16, 153.42, and 153.101-153.103 are adopted with changes to the proposed text as published in the October 20, 1992, issue of the Texas Register (17 TexReg 7426). Sections 153.1, 153. 17-153.18, 153.20, 153.41, 153.43, 153.61, 153.81-153.82, 153.104, 153.121, and 153.122 are adopted without changes and will be not republished. The only section that was proposed but will not be adopted is sec.153.19 concerning financial assurances and the department is withdrawing that section. The sections concern minimum licensing standards for adult day care and adult day health care facilities and replace the sections in Chapter 145. The department received several comments on the proposed rules. A summary of the comments, including the department's responses to them, are as follows. COMMENT: sec.153.2. The department has replaced the definition of "controlling person: with "person with a disclosable interest" and has made corresponding changes to the definition of "affiliate" and to sec.153.13. RESPONSE: The department made these changes to make Chapter 153 consistent with similar provisions in Chapters 145 and 146. COMMENT: sec.153.11. The department has deleted requirements concerning change of ownership, financial assurances, and inability to comply because these changes will make Chapter 153 consistent with similar provisions in Chapter 145 and 146. RESPONSE: The department also has replaced "controlling interest" with "disclosable interest" in (c)(1) and modified the language in (d) for clarity. COMMENT: sec.153.12. Add paragraph (5) to cover storage and waste containers. These provisions are in existing rules and need to be retained. RESPONSE: The department agrees; however, the department believes that the provisions should be in sec.153.42(c)(1)(L) because that is a more appropriate location. COMMENT/RESPONSE: sec.153.12. The department added a new paragraph (5) concerning inspection plan review because this provision is in the existing rules. COMMENT: sec.153.13(c)(5). Expand this provision to require an affidavit attesting that applicant possesses sufficient financial resources to operate the facility for minimum of 30 days. RESPONSE: The department has decided to delete the entire provision on financial assurances because it is inappropriate. COMMENT: sec.153.13(d). Change the five year period to a two year period to be consistent with proposed disclosure time in other proposed long term care rules. RESPONSE: The department agrees and has made the change. COMMENT: sec.153.13(d)(1-10). Delete paragraphs (4), (5) and (8) as they do not relate to provision of resident care. Also, delete "unresolved" in (9) to not penalize facility until any audit action is final. RESPONSE: The department disagrees with the first comment because the department believes that the paragraphs do relate to resident care. The department disagrees with the second comment but has deleted "final" instead because this change provides more clarification. The department also has clarified (d) by defining the word "facility", by replacing the word "controlling" with "disclosable", and by adding provisions concerning disclosure of and notification about the facility manager. COMMENT: sec.153.13(e)(5). Delete this provision because information is not relevant to provision of resident care and duplicative of license renewal information. RESPONSE: The department agrees and has deleted the provision. COMMENT: sec.153.13(e)(6). Delete last sentence as there is no criteria for approval and, accordingly, subparagraphs (A) and (B) should be deleted also. RESPONSE: The department agrees and has deleted all provisions concerning approval by the department. COMMENT: sec.153.13(f). Do not exempt listed financial institutions, thereby assuring uniformity for all ownerships. RESPONSE: The department disagrees because it believes that these institutions should be exempt; however, this exemption does not apply to a management company hired by an exempt entity to operate a facility. COMMENT/RESPONSE: sec.153.14. The department has clarified the procedure for submission to the department of a complete application for increase in capacity. COMMENT: sec.153.15(a). Delete requirement that application be received by department 60 days before anticipated date of sale. RESPONSE: The department's position is that the 60 day period should be reduced to 30 days and the department has made this change. COMMENT/RESPONSE: sec.153.16. The department has rewritten the section in its entirety for clarity and to conform to rule changes; however, no substantive changes have been made. COMMENT: sec.153.16(b)(1) and (4). Add "knowingly" to each of these provisions so that the facility will not be held in violation for accidental errors. RESPONSE: The department agrees and has made the change. COMMENT: sec.153.16(e)(2)(D)-(G). Delete subparagraphs (D), (E), and (F) as they do not relate to provision of resident care. Also, delete "unresolved" from subparagraph (G) so as not to penalize facility until action is final on an audit. RESPONSE: The department disagrees with the first comment because it believes that these provisions are relevant to resident care; The department's response to the second comment is to delete "final" instead of "unresolved" because that change is more reasonable. COMMENT: sec.153.19(b)-(c). In subsection (b), require one-year business plan for each facility rather than audited financial statement. This will be less costly to provider and will protect confidential financial affairs by providing pertinent information to specific facility. Subsection (c) is unnecessary. RESPONSE: The department's response is that it has decided that the financial assurance rule is inappropriate and has withdrawn sec.153.19 in its entirety. COMMENT: sec.153.42(c)(2)(I)-(K). Expand the provisions concerning facility rooms, examination room, and outdoor recreation area for clients. RESPONSE: The department disagrees because it believes that the rules are reasonable as written. COMMENT: sec.153.42(c)(2)(L)-(M). Expand provisions concerning medications and drugs. Also, add provision that facility must have first aid supplies, as recommended by the American Red Cross, on the premises. RESPONSE: The department disagrees as the law does not authorize the department to have jurisdiction in this area. COMMENT/RESPONSE: sec.153.101. The department has clarified the language by replacing "inspection" with "department", replacing "notice letter" with "warning letter by certified mail", and replacing "recommend" with "authorized". COMMENT: sec.sec.153.102 and 153.103. Clarify "serious violation" in the two sections. RESPONSE: The department's response is to clarify the more serious violation of revocation in sec.153.103 by adding revocation criteria. The department also has added notice provisions to sec.153.102, has replaced "recommend" with "suspend" in sec.153.102, and "recommend" with "revoke" in sec.153.103. Finally, the department has included a certified mail provision in sec.153.103. The following agencies, association and organizations commented on proposed Chapter 153: Retirement Villages Management, Inc.; Resaca Palms Adult Day Care of San Benito; and Texas Department of Human Services, Community Care Section. In addition, one individual commented on the proposal. The commenters expressed opposition and concern about specific provisions and made suggestions for change. 25 TAC sec.153.1, sec.153.2 The new sections are adopted under the Human Resources Code, Chapter 103, which provides the Board of Health (board) with the authority to adopt rules establishing minimum licensing standards for adult day care and adult day health care licensing facilities; and the Health and Safety Code, sec.12.001 which provides the board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. sec.153.2. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Adult day care facility-A facility which provides counseling, recreation, or food, or any combination of these services on a daily or regular basis, but not overnight, to four or more elderly or handicapped persons who are not related by blood, marriage, or adoption to the owner of the facility. Adult day health care facility-A facility that provides health care or physical therapy or both and that may also provide adult day care services on a daily or regular basis, but not overnight, to four or more elderly or handicapped persons who are not related by blood, marriage, or adoption to the owner of the facility. Affiliate-With respect to a: (A) partnership, each partner thereof; (B) corporation, each officer, director, principal stockholder, subsidiary, and person with a disclosable interest; (C) natural person: (i) each person's spouse; (ii) each partnership and each partner thereof of which said person or any affiliate of said person is a partner; and (iii) each corporation in which said person is an officer, director, principal stockholder, or person with a disclosable interest. Ambulatory-Mobility not relying on walker, crutch, cane, other physical object, or use of wheelchair. Applicant-A person required to be licensed under Health and Safety Code, Chapter 103. Client-A person who receives the services of an adult day care facility or an adult day health care facility. Department-Texas Department of Health. Director-The person responsible for the overall operation of a facility. Elderly person -A person 65 years of age or older. Existing building -In these standards, except where defined otherwise, a building either occupied as an adult day care facility or an adult day health care facility at the time of initial inspection by the department or converted to occupancy as an adult day care facility or an adult day health care facility. Facility-An adult day care facility or an adult day health care facility. Handicapped person -A person whose functioning is sufficientlyi mpaired to require frequent medical attention, counseling, physical therapy, therapeutic or corrective equipment, or another person's attendance and supervision. Long-term care facility-A facility that provides care and treatment or personal services to four or more unrelated persons, including a nursing facility, a personal care facility, and a facility serving persons with mental retardation and related conditions. Manager-A person having a contractual relationship to provide management services to a facility, but does not include a licensed nursing home administrator. 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 shall not include contracts solely for maintenance, laundry, or food services. Person with a disclosable interest-A person with a disclosable interest is any person who owns five percent interest in any corporation, partnership, or other business entity that is required to be licensed under Human Resources Code, Chapter 103. 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. Safety-Action taken to protect from injury or loss of life due to such conditions as fire, electrical hazard, unsafe building or site conditions, and the presence of hazardous materials. Sanitation-Action taken to protect from illness, the transmission of disease, or loss of life due to unclean surroundings, the presence of disease transmitting insects or rodents, unhealthful conditions or practices in the preparation of food and beverage, or the care of personal belongings. Semiambulatory-Mobility relying on walker, crutch, cane, other physical object, or independent use of wheelchair. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 16, 1993. TRD-9321768 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 834-6770 Subchapter B. Application Procedures 25 TAC sec.sec.153.11-153.18, 153.20 The new sections are adopted under the Human Resources Code, Chapter 103, which provides the Texas Board of Health (board) with the authority to adopt rules establishing minimum licensing standards for adult day care and adult day health care licensing facilities; and the Health and Safety Code, sec.12.001, which provides the board with authority to adopt rules to implement every duty imposed on the board, the department, and the commissioner of health. sec.153.11. Criteria for Licensing. (a) A person or governmental unit, acting jointly or severally, must be licensed to establish, conduct or maintain a facility in this state. (b) An applicant for a license must submit a complete application form and license fee to the Texas Department of Health (department). (c) An applicant for a license must affirmatively show the following: (1) the applicant, person with a disclosable interest, affiliate, and manager has had no conviction of a felony or crime involving moral turpitude; (2) the facility meets the standards of the Life Safety Code; (3) the facility meets the construction standards in Subchapter D of this chapter; and (4) the facility meets the standards for operation based upon an on-site survey. (d) The applicant must provide all information requested on the application form and submit the appropriate fees as a prerequisite for the department to conduct a feasibility inspection or plan review, as requested or required. (e) A license shall be issued to a facility meeting all requirements of this chapter and shall be valid for one year. Each license shall specify the maximum allowable number of clients to be cared for at any one time. No greater number of clients shall be kept at any one time than is authorized by the license. sec.153.12. Building Approval. All applications for license shall include written approval of the local fire authority having jurisdiction based on the facility and operation meeting local applicable fire ordinances; such approval shall be on forms or in a manner as determined by the licensing agency. The local health authority may provide recommendations regarding licensure utilizing the following procedure and process. (1) New facility. The sponsor of a new facility under construction or a previously unlicensed facility will provide to the licensing agency a copy of a dated written notice to the local health authority that construction or modification has been or will be completed by a specific date. The sponsor will also provide a copy of a dated written notice of the approval for occupancy by the local fire marshal or local building code authority, if applicable. The local health authority may provide recommendations to the licensing agency regarding the status of compliance with local codes, ordinances, or regulations. Local health authority comments and recommendations must be received by the licensing agency within 10 days after the date of the sponsor's notice of the fire marshal or building code authority approval for occupancy. The local health authority may recommend that a state license be issued or denied; however, the final decision on licensure status remains with the licensing agency. (2) Client increase. The license holder shall request an application for increase in capacity from the licensing agency. The licensing agency shall provide the license holder with the application form, and the Texas Department of Health (department) shall notify the local fire marshal and the local health authority of the request. The license holder shall arrange for the inspection of the facility by the local fire marshal. Upon completion of the inspection, the license holder shall notify the local health authority and the licensing agency in writing if the facility meets local code requirements. The local health authority may provide recommendations to the licensing agency regarding the status of compliance with local codes, ordinances, or regulations. Local health authority comments and recommendations must be received within 10 days after the date of the facility's notice of the local fire marshal or building code authority approval. The local health authority may recommend that an increase in capacity be granted or denied; however, the final decision on the increase remains with the licensing agency. The licensing agency will approve the application only if the facility if found to be in compliance with the standards. Approval to occupy the increased capacity may be granted by the licensing agency prior to the issuance of the license covering the increased capacity after inspection by the licensing agency if standards are met. (3) Change of ownership. The applicant for a change of ownership license will provide to the licensing agency a copy of a letter to the local health authority of the request for a change of ownership under sec.145.16 of this title (relating to Change of Ownership). The local health authority may provide recommendations to the licensing agency regarding the status of compliance with local codes, ordinances, or regulations. Local authority recommendations must be received within 10 days of the dated notice from the new owner or date of change of ownership, whichever is later, if local health official recommendations are to be considered by the licensing agency. (4) Renewal. The local health authority having jurisdiction shall receive a copy of the department license renewal notice specifying the expiration date of the facility's current license. The local health authority may provide recommendations to the licensing agency regarding the status of compliance with local codes, ordinances, or regulations. The local authority may also recommend that a state license be issued or denied; however, the final decision on licensure status remains with the licensing agency. Local health authority comments and recommendations must be received at least 30 days prior to expiration of the license for consideration by the licensing agency. (5) Inspection/plan review. Any existing building being considered for licensure must either submit plan for review and approval or request a feasibility inspection to be performed by a representative of the department to determine construction or renovation requirements. sec.153.13. Applicant Disclosure Requirements. (a) Scope of section. No person shall apply for a license, change of ownership, increase in capacity, or renewal of a license to operate or maintain a facility without making a disclosure of information as required in this section. The disclosure is required if the person is applying for a license for the first time or if the person owned, operated, or managed another facility in this or any other state, using the same or any other business name. (b) Disclosure form. All applications shall be made on forms prescribed by and available from the department. Applications include initial applications, change of ownership, and renewal applications. Each application must be completed in accordance with department instructions, and signed and notarized. (c) General information required. An applicant shall file with the department an application which shall contain: (1) the name of the applicant and, if an individual, whether the applicant has attained the age of 18 years; (2) the type of facility; (3) the location of the facility; (4) the name of the administrator; (5) evidence of the right to possession of the facility at the time the application will be granted, which may be satisfied by the submission of applicable portions of a lease agreement, deed or trust, or appropriate legal document. If the applicant is not the owner of the real estate, the lease agreement must clearly state that the applicant, lessee has the right to renovate, repair, and maintain the real estate as may be required to meet the licensing standards. The names and addresses of any persons or organizations listed as owner of record in the real estate, including the buildings and grounds appurtenant to the buildings, shall be disclosed to the department; (6) the certificate of good standing issued by the Comptroller of Public Accounts; and (7) the certificate of incorporation issued by the Secretary of State for a corporation or a copy of the partnership agreement for a partnership. (d) Disclosure requirements. Applicants must disclose the following information for the two-year period preceding the application date, concerning the applicant, persons with a disclosable interest, facility lessor, officers, affiliates, and manager, without regard to whether the data required relates to current or previous events: (1) denial or revocation of a license to operate a health care, long term care, personal care, or day care facility in any state; (2) federal or state Medicaid or Medicare sanctions or penalties; (3) state or federal criminal convictions for any offense that provides a penalty of incarceration; (4) federal or state liens; (5) unsatisfied final judgments; (6) operation of a facility that has been decertified in any state under Medicare or Medicaid; (7) debarment, exclusion, or contract cancellation in any state from Medicare or Medicaid; (8) eviction involving any property or space used as a facility in any state; (9) unresolved state or federal Medicare or Medicaid audit exceptions; and (10) orders from any court restraining or enjoining the applicant, manager, or any person with a disclosable interest from operating a health care, long term care, personal care, or day care facility in any state. (e) Ownership and management information required. (1) Each applicant for a license to operate a facility shall disclose to the department the name and business address of each limited partner and general partner if the applicant is a partnership, of each director and officer if the applicant is a corporation, and each person having a beneficial ownership interest of five percent or more in the applicant corporation, partnership, or other business entity. (2) If any person described in this section has served or currently serves as an administrator, general partner, limited partner, trustee or trust applicant, sole proprietor, or any applicant or licensee who is a sole proprietorship, executor, or corporate officer or director of or has held a beneficial ownership interest of five percent or more in any other health care, long term care, personal care, or day care facility, the applicant shall disclose the relationship to the department, including the name and current or last address of the facility and the date such relationship commenced and, if applicable, the date it was terminated. (3) If the applicant or licensee is a subsidiary of another organization, the information shall include the names and addresses of the parent organization and the names and addresses of the officers and directors of the parent organization. (4) If the facility is operated by, or proposed to be operated under, a management contract, the names and addresses of any person or organization, or both, having an ownership or discloseable interest of five percent or more in the management company shall be disclosed to the department. (5) The information required by this section shall be provided to the department upon initial application for licensure, and changes in the information shall be provided to the department on an annual basis, except that a licensee shall notify the department within 30 days of any change of the facility's manager. (f) The provisions of this section shall not apply to a bank, trust company, financial institution, title insurer, escrow company, or underwriter title company to which a license is issued in a fiduciary capacity except for provisions that require disclosure relating to the manager of the facility. sec.153.14. Increase in Capacity. (a) During the license term, a license holder may not increase capacity without approval from the Texas Department of Health (department). The license holder shall submit to the department to complete application for increase in capacity on a form provided by the department. (b) Upon approval of an increase in capacity, the department shall issue a new license. sec.153.15. Change of Ownership. (a) During the license term, a license holder may not transfer the license as a part of the sale of the facility. Prior to the sale of the facility, the license holder shall notify the Texas Department of Health (department) that a change of ownership is requested. The prospective purchaser shall submit to the department a complete application for a license under sec.153.11 of this title (relating to Criteria for Licensing) at least 30 days prior to the anticipated date of sale. The applicant shall meet all requirements for a license. (b) Pending the review of the prospective purchaser's application, the license holder shall continue to meet all requirements for operation of the facility. sec.153.16. Criteria for Denying a License or Renewal of a License. (a) The department may deny a license or a renewal or a license if an applicant, manager, or affiliate: (1) substantially fails to comply with the requirements described in sec.sec.153.41-153.43 of this title (relating to Standards for Adult Day Care and Adult Day Health Care Facilities; (2) provides the following false or fraudulent information: (A) knowingly submits false or misleading statements in the application or any accompanying attachment; (B) uses subterfuge or other evasive means of filing; (C) engages in subterfuge or other evasive means of filing on behalf of another who is unqualified for licensure; (D) knowingly conceals a material fact; or (E) is responsible for fraud; (3) fails to provide the required information, facts and or references; (4) fails to pay the following fees, taxes and assessments when due: (A) licensing fees as described in sec.153.17 of this title (relating to License Fees); (B) franchise taxes, if applicable; (5) discloses any of the following actions within the two year period preceding the application: (A) operation of a facility that has been decertified and or had its contract cancelled under the medicare or medicaid program in any state; (B) federal or state medicare or medicaid sanctions or penalties; (C) state or federal criminal convictions for any offense that provides a penalty of incarceration; (D) federal or state liens; (E) unsatisfied final judgments; (F) eviction involving any property or space used as a facility in any state; (G) unresolved state or federal medicare or medicaid audit exceptions; or (H) suspension of a license to operate a health facility, long term care facility, personal care facility, or a similar facility in any state. (b) Concerning subsection (a)(5) of this section, the department may consider exculpatory information provided by the applicant, manager, or affiliate to grant a license under the subsection if the department finds the applicant, manager or affiliate able to comply with the rules in this chapter. (c) The department shall not issue a license to an applicant to operate a new facility if the applicant discloses any of the following actions during the two year period preceding the application: (1) revocation of a license to operate a health care facility, long term care facility, personal care facility, or similar facility in any state; (2) debarment or exclusion from the medicare or medicaid programs in any state; or (3) a court injunction prohibiting the applicant, manager, or affiliate from operating a facility. (d) Hearing. If the department denies a license or refuses to issue a renewal of a license, the applicant or licensee may request an administrative hearing in accordance with sec.153.104 of this title (relating to Administrative Hearings). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 16, 1993. TRD-9321788 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 30, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 834-6770 Subchapter C. Standards for Adult Day Care and Adult Day Health Care Facilities 25 TAC sec.sec.153.41-153.43 The new sections are adopted under the Human Resources Code, Chapter 103, which provides the Board of Health (board) with the authority to adopt rules establishing minimum licensing standards for adult day care and adult day health care licensing facilities; and the Health and Safety Code, sec.12.001 which provides the board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. sec.153.42. Safety. (a) Environmental safety. (1) The physical plant safety requirements are designed to provide safety to the clients, participants, or adult individuals receiving day care or day health care identified in the Texas Department of Human Services' rules referenced in sec.153.41(b) of this title (relating to General Requirements). (2) The facility shall conform to all applicable state laws and local ordinances as pertain to this occupancy. When such laws, codes, and ordinances are more stringent than these standards, the more stringent requirements shall govern. Should state laws or local codes or ordinances be in conflict with the requirements of these standards, the licensing agency shall be so informed so that these conflicts may be legally resolved. (3) The facility shall meet the provisions and requirements concerning accessibility for individuals with disabilities in the following laws: the Americans with Disabilities Act 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 shall be submitted to the Texas Department of Licensing and Regulation (Attn: Elimination of Architectural Barriers Program) for accessibility approval under Article 9102. (4) The jurisdiction of the licensing agency will extend 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, sec.10-7.1.2. (b) Life Safety Code. (1) The principles of the Life Safety Code, of the National Fire Protection Association (NFPA), 1988 edition, under sec.10-7 "Day Care Centers," and operating features under sec.31-3.4 "Day Care Centers," shall be used in establishing life safety requirements for adult day care facilities and adult day health 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, sec.10-7, are as follows. (A) The principles of sec.10-7 shall apply to any size facility requiring licensing with four or more clients or participants. (B) The principles of sec.10-7.1.1.3 relating to children six years of age and over shall apply. (C) The manual fire alarm system and automatic smoke detection system shall be installed in accordance with NFPA 72 series and state fire marshal licensing requirements. (3) Exceptions to the Life Safety Code, 1988, sec.10-7, are as follows. (A) All required smoke detectors will be powered by the facility electrical system and be interconnected with the fire alarm system. (B) Reference to apartment buildings in sec.10-7.1.2 shall 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, will be provided with smoke compartmentation. (C) Emergency lighting shall not be 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 will not be required. (E) NFPA 96 publication relating to Vapor Removal Cooking Equipment shall not be applicable if the facility has residential-type cooking equipment. (F) Public corridors shall not be used for return or supply air systems. (G) Residential-type heating units or heating units designed for attic installations shall not be considered to be units requiring furnace room construction as specified under sec.10-7.3.2.1. (H) New additions or remodeling shall be as required for new construction in accordance with paragraph (4) of this subsection. (I) Sprinkler system for janitor's closet as specified under sec.10-7.2.2 shall not be required unless the building has a complete NFPA 13 system. (4) For new construction, the licensing agency will require conformance to the following codes, except that the licensing agency 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 shall govern in those areas of construction. Where local codes or ordinances are applicable, the most restrictive parts concerning the same subject item shall apply unless otherwise determined by the authority having jurisdiction for local codes and the licensing agency. (B) In the absence of such governing municipal codes, nationally recognized codes shall 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. Such nationally recognized codes, when used, shall all be publications of the same group or organization to assure the intended continuity. (C) Heating, ventilating, and air-conditioning (HVAC) systems shall 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. (D) Electrical and illumination systems shall 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. (5) An existing building either occupied as an adult day care center or an adult day health care center at the time of initial inspection by the licensing agency, or converted to occupancy as an adult day care or an adult day health care facility, shall 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 or adult day health care facilities shall be of recognized permanent type construction as distinguished from movable buildings or construction. Buildings shall be structurally sound with regard to actual or expected dead, live, and wind loads. The licensing agency may require submission of evidence to this effect. (7) Electrical and mechanical systems shall be safe and in working order. The licensing agency may require the facility sponsor or licensee to submit evidence to this effect, consisting of a report from the fire marshal or city/county building official having jurisdiction or a report from a registered professional engineer. (8) Modifications to requirements are as follows. (A) For facilities operating as adult day care or adult day health care facilities at the time of their first application for licensure under this program, the licensing agency may modify those requirements which, if strictly applied, would clearly be impractical in the judgment of the licensing agency. Any such 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. (B) For existing buildings and structures which are converted to adult day care or adult day health care occupancy, the licensing agency may modify those requirements which, if strictly applied, would clearly be impractical in the judgment of the licensing agency. Any such 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. (c) Personal safety. (1) Fire safety. (A) Fire safety shall be observed at all times. (B) Storage items shall be neatly arranged and placed to minimize fire hazard. Gasoline, volatile materials, paint, and similar products shall not be stored in the building housing clients except as may be approved by the local fire marshal. Accumulations of extraneous material and refuse shall not be permitted. (C) The building shall be kept in good repair; electrical, heating, and cooling systems shall be maintained in a safe manner. Use of electrical appliances, devices, and lamps shall be such as not to overload circuits. Any extension cords in excess of six feet shall be shielded or protected. (D) All fires shall be reported to the licensing agency within 72 hours; however, any fire causing injury or death to a client shall be reported immediately. A telephone report shall be followed by a written report on a form which will be supplied by the licensing agency. (E) The facility shall develop and conspicuously post throughout the facility an emergency evacuation plan approved by the local fire marshal having jurisdiction and the licensing agency. The emergency evacuation plan shall be updated and resubmitted for approval every two years. (F) Smoking regulations shall be established and conspicuously posted in the facility. All smoking shall be supervised. Ashtrays of noncombustible material and safe design shall be provided. (G) The facility shall have an emergency fire lane for access of fire apparatus if required by local authorities. (H) There shall be at least one telephone in the facility available to either staff or clients to use in case of an emergency. Emergency telephone numbers shall be posted conspicuously at or near the telephone. (I) An initial pressure test of facility gas lines from the meter shall be provided. Additional pressure tests will be required when the facility has major renovations or additions where the gas service is interrupted. All gas heating systems shall be checked for proper operation and safety prior to the heating season. Any unsatisfactory conditions shall be corrected promptly. (J) Curtains and/or draperies in public spaces and individual rooms in which smoking is allowed shall be flame retardant. (K) Provide 2 1/2 gallon pressurized water type portable fire extinguishers in client use areas. A portable Underwriters Laboratory or Factory Mutual approved five-pound Class B:C dry chemical fire extinguisher, rechargeable type, shall be required in each laundry, kitchen, and walk-in mechanical room. An ABC type extinguisher may be used in serving kitchens. (L) Metal wastebaskets of substantial gauge or any UL or FM 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 UL or FM 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 shall be designed, constructed, and maintained in the interest of clients' safety. Newly constructed ramps shall not exceed 1:12 slope. Ramps, walks, and steps shall be of slip-resistive texture and be smooth and uniform, without irregularities. Guard rails, fences, and hand rails shall be provided as required. (B) All stairways shall have substantial hand rails properly secured. (C) Tubs or showers for client use shall have non-slip bottoms or floor surfaces, either built in or applied to the surface. (D) Elevators for client use shall be in safe operating condition. (E) An adequate supply of hot water shall be provided. The hot water system connected to all client-use fixtures shall deliver warm water no hotter than 120 degrees Fahrenheit at the fixture. Hot water for other sanitary usages shall be provided at the temperatures required for the appliance or fixture served, or for the operation involved. (F) There shall be no occupancies or activities adversely affecting the safety of the clients in the buildings or on the premises of the facility. (G) There shall be provided not less than 35 square feet for each ambulatory client and not less than 50 square feet for each semiambulatory client. This space shall be exclusive of the kitchen and food service area, rest rooms, bath areas, office, corridors, stairways, storage areas, and outdoor space. (H) An office area shall be provided in a central location to record and maintain files for each client. (I) An area for rest must be provided with a sufficient number of reclining lounge chairs or beds to accommodate the needs of clients. A room or rooms with beds must be provided for those clients who prefer privacy. The facility must have sufficient chairs and tables to seat all clients at one time. (J) The facility must have at least one room available as a treatment/examination room for use by the nursing staff or the client's physician. (K) The facility must have a safe, secure, and suitable outdoor recreation/relaxation area for clients. (L) The medication room or cabinet medication storage area must have a separate, permanently attached cabinet, box, or drawer with a lock to store drugs covered by Schedule II of the Controlled Substances Act of 1970. (M) Medications requiring refrigeration must be stored in the medication room in a refrigerator used only for medicine storage or kept in a separate, permanently attached, and locked medication storage box in a refrigerator. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 16, 1993. TRD-9321786 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 834-6770 Subchapter D. Facility Construction Procedures 25 TAC sec.153.61 The new sections are adopted under the Human Resources Code, Chapter 103, which provides the Board of Health (board) with the authority to adopt rules establishing minimum licensing standards for adult day care and adult day health care licensing facilities; and the Health and Safety Code, sec.12.001 which provides the board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 16, 1993. TRD-9321785 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 834-6770 Subchapter E. Inspections, Surveys, and Visits 25 TAC sec.153.81, sec.153.82 The new sections are adopted under the Human Resources Code, Chapter 103, which provides the Board of Health (board) with the authority to adopt rules establishing minimum licensing standards for adult day care and adult day health care licensing facilities; and the Health and Safety Code, sec.12.001 which provides the board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 16, 1993. TRD-9321784 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 834-6770 Subchapter F. Enforcement 25 TAC sec.sec.153.101-153.104 The new sections are adopted under the Human Resources Code, Chapter 103, which provides the Board of Health (board) with the authority to adopt rules establishing minimum licensing standards for adult day care and adult day health care licensing facilities; and the Health and Safety Code, sec.12.001, which provides the board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. sec.153.101. Enforcement Generally. (a) Determining degree of noncompliance and determining disciplinary actions. (1) Texas Department of Health (department) personnel will determine the extent to which violations adversely affect the licensure status of the facility. (2) A facility may have violations which are not serious and do not impose an immediate threat to the recipients and yet be considered to be in substantial compliance as long as those violations can be reasonably expected to be corrected with acceptable methods and within an acceptable time. (3) When department personnel determine that a facility is out of compliance with requirements to a degree that the facility must be specially warned beyond the routine methods of apprising the facility of its violations, a warning letter by certified mail will be issued to the facility. (b) Enforcement procedures. When a violation of Human Resources Code, Chapter 103, or these rules occurs, the department is authorized to suspend or revoke the license. sec.153.102. Suspension. (a) When a serious violation occurs or when a series of violations occur such that the event or series of events may (or could) jeopardize the health and safety of recipients, the Texas Department of Health (department) may suspend the license. (b) The facility will be notified by certified mail of the department's intent to suspend the license. The facility shall have 20 days from receiving the certified mail notice within which to request a hearing, in accordance with sec.153.104 of this title (relating to Administrative Hearings). (c) If the department suspends a license, the suspension shall remain in effect until the department determines that the reason for suspension no longer exists. The department shall conduct an on-site investigation prior to making a determination. During the time of suspension, the suspended licensee shall return the license to the department. sec.153.103. Revocation. (a) When a serious violation occurs, such that the health and safety of clients is jeopardized, the Texas Department of Health (department) may revoke the license. (b) The department may revoke a license if the licensee: (1) submitted false or misleading statements in the application for a license or any accompanying attachments; (2) used subterfuge or other evasive means to obtain the license; or (3) concealed a material fact in the application for a license or failed to disclose information required in sec.153.13 of this title (relating to Applicant Disclosure Requirements) that would have been the basis to deny the license under sec.153.16 of this title (relating to Criteria for Denying a License or Renewal of a License). (c) Revocation of a license may occur simultaneously with any other enforcement provision available to the department. (d) The facility will be notified by certified mail of the department's intent to revoke a license. The facility shall have 20 days from receiving the certified mail notice within which to request a hearing, in accordance with sec.153.104 of this title (relating to Administrative Hearings). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 16, 1993. TRD-9321783 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 834-6770 Subchapter G. Miscellaneous Provisions 25 TAC sec.sec.153.121-153.122 The new sections are adopted under the Human Resources Code, Chapter 103, which provides the Board of Health (board) with the authority to adopt rules establishing minimum licensing standards for adult day care and adult day health care licensing facilities; and the Health and Safety Code, sec.12.001 which provides the board with authority to adopt rules to implement every duty imposed on the board, the department and the commissioner of health. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 16, 1993. TRD-9321782 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 31, 1993 Proposal publication date: October 20, 1992 For further information, please call: (512) 834-6770 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part IX. Texas Water Commission Chapter 288. Water Conservation Plans, Guidelines and Requirements Subchapter A. Water Conservation Plans 31 TAC sec.sec.288.1-288.7 The Texas Water Commission (commission) adopts new sec. sec.288.1-288.7, concerning water conservation plans. Sections 288.1-288.5 and 288.7 were adopted with changes to the proposed text as published in the October 30, 1992, issue of the Texas Register (17 TexReg 7647 et seq). Section 288.6 was adopted without changes and will not be republished. The purpose of this new chapter is to provide requirements and guidance for the development and contents of water conservation plans submitted to the commission pursuant to its water-related regulatory programs. These programs include the granting and administration of water rights, the regulation of certain water utilities, and the issuance of permits for the discharge of treated wastewater pursuant to the Texas Water Code, Chapters 11, 13, and 26. Section 288.1 defines words and terms used in the chapter. Sections 288. 2- 288.6 describe the information required to be provided in a water conservation plan in accordance with the applicable category of water use. These categories of use include: municipal; industrial or mining; irrigation; wholesalers of water; and other uses of water. Section 288.7 describes additional information required to be contained in a water conservation plan submitted with an application to appropriate state water, as required by sec.295.9 of this title (relating to Conservation Plan, Requirements of Water Use Permit Application). Water conservation is increasingly recognized as an integral element of water resources planning and management. Water conservation can play an important role in meeting current and future water supply, utility infrastructure, and environmental needs. Potential benefits of water conservation include extending available water supplies, optimizing water and wastewater infrastructure capacity, reducing energy consumption, and reducing both point and non-point sources of water pollution. Accordingly, this chapter will be used to effect an integrated approach to water resources planning and management by incorporating water conservation into the commission's water-related regulatory programs. These rules were carefully developed over a two-year period. During this period, commission staff thoroughly studied the conservation initiatives of other states and worked closely with affected entities and groups in Texas in re-examining existing rules and guidelines to determine whether and how they could be amended to better assist water resource planners and managers in achieving water conservation goals. Additionally, the Clean Water Council, a commission-sponsored public advisory group, submitted recommendations to the commission on water resource management issues, including water conservation. Applicable recommendations of the Council have been incorporated into the rules. Another commission-sponsored advisory group, the Agriculture Advisory Committee, also assisted in the review and development of the rules. In addition to the minimum 30-day notice and comment period required by the Administrative Procedure and Texas Register Act, the commission provided an extended period for public comment on the proposed rules through December 18, 1992. Also, the commission held a public hearing on Monday, January 25, 1993, to receive additional comment on the proposed sections. A total of twenty different groups and entities submitted comments on the proposed rules. These commenters reflected a broad range of interests, representing cities, agriculture, industry, business, state and local water resource management agencies, and environmental and public interest groups. Most comments were generally favorable to the new rules. Suggested changes have been incorporated into the rules where appropriate. There were three main categories of comments: those in general support of the rules but would like greater specificity and more minimum requirements; those generally opposed the rules as unnecessary, burdensome, and beyond the commission's authority; and those who would like some portions clarified and other sections deleted. Commenters which expressed general support of the proposed rules include: the Texas Water Development Board, the Lower Colorado River Authority, the City of Austin, the City of Corpus Christi, the City of Winnsboro, the Texas Water Conservation Association, the Environmental Defense Fund, the Sierra Club, and the Save Barton Creek Association. Commenters which expressed general opposition to the rules include: the City of Tyler, the Texas Municipal League, and the Texas Farm Bureau. Other groups and entities which provided comments without expressing general support or opposition to the proposed rules include: the Hidalgo and Cameron Counties Irrigation District, the Harlingen Irrigation District, the City of Dallas Water Utilities, the City of Fort Worth, the City of Leon Valley, the Texas Irrigation Council, Texas Utilities Service, and Oxychem. Those in general support of the rules would also like to see the commission require water conservation plans as a condition of wastewater discharge permits as well as require plans from each water right holder of the state. The commission agrees with this comment to the extent that it is not duplicative of the requirements for the water rights program. The commission is currently considering the proposal of a section which would require a water conservation plan be submitted by a wastewater discharge permittee when the permittee's treatment plant's capacity exceeds 75% of the permitted average daily flow for three consecutive months, unless such plan has been previously submitted to the commission in connection with a water rights application. The purpose of the proposed section would be to protect and enhance water quality by minimizing wastewater discharges and to adequately determine the need for the possible expansion of the wastewater treatment facility and corresponding increases in discharge amounts. The proposed change would also seek to prevent unnecessary capital outlays and indebtedness of wastewater treatment facility owners. Additionally, the commission is developing a water conservation program for its water utilities programs. Those generally opposed to the rules have stated that the commission is attempting to define a new state policy on water conservation. The commission respectfully disagrees with this comment. The conservation of water resources is an explicit policy of the state (Texas Constitution, Article XVI, sec.59; the Texas Water Code, sec.1.003). Provisions in the Texas Water Code direct the commission to ensure the achievement of the maximum conservation of the state's water resources (the Texas Water Code, sec.5.120). The commission may not approve an application relating to the appropriation of water unless the applicant can demonstrate that due diligence will be used in avoiding waste and achieving water conservation (the Texas Water Code, sec.11.134(b)(4)). Section 11.1271 of the Texas Water Code specifically authorizes the commission to require a water conservation plan and the implementation of water conservation measures by users of state water. Accordingly, the commission has been requiring the submission of a water conservation plan with an application for a new or amended water right since the 1985 enactment of this provision (31 Texas Administrative Code, sec.295.9). These rules simply clarify existing plan content requirements and procedures for the review and approval of these plans. The Texas Legislature also enacted laws in 1985 requiring the Texas Water Development Board to administer a water conservation program in connection with its financial assistance programs. Specifically, recipients of state financial assistance for water supply and wastewater projects are required to implement a conservation program (Texas Water Code, sec.15.106(b)). Finally, in the 1990 state water plan, Water for Texas: A Comprehensive Plan for the Future, and in the 1992 update, published by the Texas Water Development Board, water conservation is an expressed state policy to be considered in the planning and management of the state's water resources. By the adoption of these rules, the commission is implementing state water conservation policy as provided by law and in conjunction with efforts of the Texas Water Development Board. The commission intends to explore with the Texas Water Development Board the possible development of an interagency agreement providing for the reciprocal review of water conservation plans to avoid unnecessary duplication of regulatory requirements and agency efforts. In reviewing a conservation plan submitted with an application, commission staff has worked with the applicant in developing a plan which would best meet the water supply and management needs of the applicant as well as conserve water to meet the alternative and future needs of the state. This cooperative assistance has helped water users save water, energy, and money. This is especially important to the small cities and communities facing increasing costs associated with new and modified water and wastewater facilities. Through carefully designed water conservation plans, these communities reduced energy costs because less water was pumped and treated and less heated for home and industrial use. This was accomplished without significantly changing the lifestyles or the quality of life of the citizens. With regard to provisions in Chapter 288 generally, there was some confusion regarding to whom sections apply and which conservation strategies are mandatory. Chapter 288, by itself, does not mandate each and every water user of the state to submit a water conservation plan to the commission for approval. The chapter merely sets forth minimum requirements which must be contained in a water conservation plan if an entity is required to submit a water conservation plan to the commission. Currently, only sec.295.9 of the commission's rules requires, with some exceptions, the submission of a water conservation plan with a water right application. As amended concurrently with the adoption of Chapter 288, sec.295.9 requires that each plan be prepared in accordance with Chapter 288. With regard to the definitions in sec.288.1, the commission finds that the proposed definitions for "beneficial use" and "waste" are specific to the appropriation of state water and are, therefore, unnecessary to the general purposes of Chapter 288 relating to all water-related regulatory programs. Therefore, the proposed definitions have been deleted. With respect to the definition of "conservation," the commission has amended the definition to provide only the express statutory wording for this term as contained in the Texas Water Code, sec.11.002(8)(B) and sec.15.001(9)(B). The proposed definition contained guidance as to the commission's interpretation and application of the statutory definition relating to the appropriation of state water. Such guidance is the purpose of the rulemaking function. However, to ensure consistency between the water conservation programs of the commission and the Texas Water Development Board, only the express statutory definition will be used. With respect to definitions which contained the word "water," one commenter wanted the word "state" inserted before "water". The commission disagrees with this comment. This proposed change does not take into account the applicability of Chapter 288 to all water-related regulatory programs of the commission, and not just to the appropriation of state water. One commenter stated that the definition of "irrigation water use efficiency" should explicitly address "allowable" channel and other losses. The commission feels this can only be done in a meaningful way on a case-by-case analysis, and therefore, the definition is not modified. One commenter stated that the definition of "reuse" was too restrictive and did not recognize return flows which may provide for environmental needs. The commission disagrees in part with this comment. Reuse may be limited by the terms of a water right to provide return flows to meet environmental water needs and senior water rights. Since the comment is specific to the appropriation of state water, the commission declines to include this change in general water conservation provisions applicable to all water-related regulatory programs of the commission. The proposed definition of "per capita water use" has been modified to read "municipal per capita water use". The reason for this change is to clarify that per capita water use is not an applicable measurement for agricultural and industrial water use. This definition is also in accordance with water management accounting by the Texas Water Development Board, which is responsible for projecting water demands for the state of Texas. Finally, with respect to sec.288.1, definitions for "industrial use," "irrigation use," "mining use," and "municipal use" have been added to clarify the different categories of use provided in the rules. Some commenters interpreted proposed sec.288.2 to mandate that all content elements listed in the rules be included in a water conservation plan. This was not the intent of the proposed rules. Rather, many of the conservation strategies are intended to be additional, depending upon the particular circumstances of the applicant. Minor changes have been made to proposed sec.288.2(2) and (5) in order to clarify which elements listed are mandatory and which may be additional. Section 288.2 has been clarified by setting out minimum requirements for all water users supplying water to the municipal sector and additional minimum requirements for suppliers serving a population of 5,000 or more. Section 288. 2(3) has been clarified to explicitly identify all strategies which are optional, that is, the choice to implement these strategies is dependent upon the particular circumstances of the applicant. The decision to have a tiered approach of minimum requirements of "small" and "large" water suppliers was first proposed by the Clean Water Council, which was created to advise the commission on a variety of water issues. This approach has also been supported by the Texas Water Development Board. Finally, the decision to leave many strategies optional was also supported by the Clean Water Council. With respect to proposed sec.288.2(1)(A), concerning utility profile data, many commenters felt that financial data of the water supplier is unnecessary for the purposes of this section. The commission agrees and has deleted this provision. Another commenter stated that the utility profile should not duplicate populations already serviced by other water suppliers, or if duplicated, should list all other suppliers servicing the target populations. The commission agrees but does not feel that this need be explicit in the rules. Commission staff has developed utility profile forms which allow for explicit consideration of the total water use and water supply characteristics of a service area. With respect to proposed sec.288.2(1)(B), concerning water conservation goals, some commenters wanted the commission to delineate what are acceptable per capita water conservation goals. Where per capita water use is higher than the regional average, another commenter stated that the commission should require the water entity to establish a goal which reduces per capita water use to at least the regional average. The commission disagrees with these comments. This chapter does not set forth explicit quantitative legal standards for per capita water use because different water supply systems have different constraints on their water supply and wastewater systems and different water demands. What may be appropriate for one utility, for example, a 25% reduction in per capita water use, may be excessive or unrealistic for another. Each utility faces a unique set of circumstances, and depending on those circumstances, water conservation plans will serve different purposes. In reviewing a water conservation plan, the commission will determine whether the per capita goals seek to address a water or wastewater problem (e. g., approaching maximum treatment capacity). This will be evidenced by the applicant through a system audit to quantify the potential water savings in each water use sector. The goals selected should be based on the feasibility of implementing strategies to reduce water use. If it is not feasible to reduce per capita water use, then the goal should be to maintain per capita water use at current levels. The water supplier's choice of water conservation goals should include a cost analysis supporting any proposition that reductions in municipal per capita water use are a least-cost alternative or a complement to water supply and/or wastewater investments. Alternatively, if the goal is to maintain municipal per capita water use at current levels, a cost analysis should be provided which supports the conclusion that reductions in per capita water use are not economically feasible. Commission review of goals would merely determine that data is provided that provides a substantiated basis for the goals. The review of the goals would help examine whether goals are too restrictive so as to endanger public health and safety (e.g., an annual average of 50 gallons per day per person) or superficial (e.g., a 5% reduction from current use levels when 15% could be obtained without significant additional costs). Regarding the proposed requirement that a plan address measures to control unaccounted-for uses of water and a program of leak-detection, repair, and water loss accounting, some commenters wanted the latter to be a minimum requirement of all water entities. The commission feels this may be a burdensome requirement to small entities, and the changes made to the rules make the latter a requirement for only those entities serving 5,000 people or more. For smaller entities, measures to control unaccounted-for uses of water should be adequate; examples have been added. Also, regarding measures to control unaccounted-for water, one commenter states that maximum acceptable goals or guidelines for this parameter should be explicit. This parameter, like municipal per capita water use, is highly variable, depending on the size of the utility system and its age. Like per capita water use, goals for this parameter should be set by the water entity. Some commenters stated that drought management should be addressed in the water conservation plan. The commission agrees with this comment and has amended the sections accordingly. Regarding proposed sec.288.2(1)(H), one commenter recommended that a plan not be required to be officially adopted by the applicant. The commission disagrees. In order to assure that reasonable diligence will be used by the applicant to achieve water conservation, a plan must have a means of implementation and enforcement. Formal adoption of the plan is evidence of this. Moreover, this requirement is consistent with the Texas Water Development Board's requirements for municipal conservation plans. This provision was reworded slightly to provide more clarity. Minimum requirements to be included in a plan for those suppliers providing water to the larger population have been clarified in sec.288.2. Additionally, strategies which are optional have also been clarified in sec.288.2(3). Regarding proposed sec.288.2(2)(B), the phrase "a record management system" has been substituted for "bookkeeping of water use" in response to a comment recommending clarification of this provision. Regarding the requirement in proposed sec.288.2 and sec.288.5 that each wholesale water contract provide that end users implement water conservation measures, some commenters wanted this provision deleted as too intrusive in water sale agreements. The commission disagrees with this comment. The water conservation plan for a wholesale water supplier would be meaningless and ineffective unless the water supplier implements the plan by affecting the actual use of water by the buyer. Therefore, this requirement is reasonable and necessary to effectuate the purposes of this chapter. Furthermore, many wholesalers in the state are currently requiring water conservation provisions in their water supply contracts. Some commenters specifically wanted conservation-oriented rates and rate structures to be recognized and implemented as a water conservation measure. Other commenters wanted it clearly indicated that specific rates and rate structures not be mandated by the commission. The commission agrees with these comments. Accordingly, the rules have been amended to provide that the commission shall not approve a plan by a utility that has a "promotional" water rate structure, i.e., a rate structure which is not cost-based and encourages excessive use of water. One commenter felt that the reuse and recycling option should explicitly require that all high-volume urban irrigators use tertiary water, instead of potable water. The commission notes that such use may be done in accordance with commission rules contained in Chapter 310 of this title, which may not always allow for the reuse of tertiary water, and therefore, this provision remains optional. Two commenters wanted an explicit reporting requirement. The commission does not feel that Chapter 288 is the appropriate place for such a requirement; rather, such requirement should be specified in administrative rules for a particular permitting process or program area. For example, water right holders are currently required to annually report their water use. These reports must include information on the implementation of the water conservation plan and whether its goals are being achieved. Two commenters wanted the provision on plumbing ordinances to be deleted due to the 1991 State plumbing fixtures bill. This strategy is optional and remains included in the rules so that a water user who, prior to the enactment of this bill, implemented a water conservation and plumbing ordinance may be credited for doing so. Another commenter wanted this provision to be mandatory. The commission notes that making this provision mandatory would make it inconsistent with Water Development Board requirements for municipal plans. Regarding the optional monitoring of the effectiveness and efficiency of the water conservation plan, one commenter wanted clarification of this proposed rule. This provision is meant to be a self-monitoring and program evaluation system to be implemented by the water supplier. It can be expected that only very large water supply systems will have the funds available to do plan and program evaluation. Therefore, the provision is optional. Regarding proposed sec.288.3, commenters recommended that "water" should be defined and that once-through cooling should be exempted. The commission disagrees with these comments. The commission refers to the Water Code and applicable rules relating to a particular program area to define "water." To exempt once-through cooling would be contradictory to most industrial water conservation efforts. Regarding proposed sec.288.4, Water Conservation Plans for Irrigation Use, one commenter wanted this section to explicitly allow Soil and Conservation Service plans to be allowed to be substituted for this provision. The commission agrees, in part, with this comment. The commission has amended the rule to provide that, as long as such plans provide the equivalent information requested in sec.288.4 and other applicable commission rules, then such substitution would be feasible and therefore allowed pursuant to a memorandum of understanding between the agency and the commission. The commission also notes that the Agricultural Advisory Committee to the commission has reviewed sec.288.4 prior to publication and has formerly and favorably reviewed all of the proposed rules. Also regarding sec.288.4, one commenter stated that drought management plans should be provided from individual irrigators. The commission feels that this provision is unduly burdensome, unrealistic, and unnecessary. These plans are more appropriate for larger municipal users and wholesale water suppliers. With respect to sec.288.2 and sec.288.5, relating to plans submitted for municipal use and by a wholesale water supplier, respectively, a requirement has been added that water conservation achievable by reservoir system operations be addressed in the water conservation plan, if applicable. Section 288.7 was amended to clarify that the review and action on a water conservation plan submitted with a water rights application shall include the evaluation of feasible alternatives to new water development. The new sections are adopted under the Texas Water Code, sec.sec.5.103, 5.105, and 5.120, which provide the commission with the authority to promulgate rules as necessary to carry out its powers and duties under the Texas Water Code and other laws of the state. sec.288.1. Definitions. The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise. Conservation-Those practices, techniques, and technologies that reduce the consumption of water, reduce the loss or waste of water, improve the efficiency in the use of water or increase the recycling and reuse of water so that a water supply is made available for future or alternative uses. Industrial use -The use of water in processes designed to convert materials of a lower order of value into forms having greater usability and commercial value, including commercial feedlot operations, commercial fish production, and the development of power by means other than hydroelectric. Irrigation use -The use of water for the irrigation of crops, trees, and pastureland, including, but not limited to, golf courses and parks which do not receive water through a municipal distribution system. Irrigation water use efficiency-The percentage of that amount of irrigation water which is beneficially used by agriculture crops or other vegetation relative to the amount of water diverted from the source(s) of supply. Beneficial uses of water for irrigation purposes include but are not limited to evapotranspiration needs for vegetative maintenance and growth and salinity management and leaching requirements associated with irrigation. Mining use-The use of water for mining processes including hydraulic use, drilling, washing sand and gravel, and oil field repressuring. Municipal per capita water use-The sum total of water diverted into a water supply system for residential, commercial, and public and institutional uses divided by actual population served. Municipal use-The use of potable water within or outside a municipality and its environs, whether supplied by a person, privately-owned utility, political subdivision, or other entity, as well as the use of sewage effluent for certain purposes, including the use of treated water for domestic purposes, fighting fires, sprinkling streets, flushing sewers and drains, watering parks and parkways, and recreational purposes, including public and private swimming pools, the use of potable water in industrial and commercial enterprises supplied by a municipal distribution system without special construction to meet its demands, and for the watering of lawns and family gardens. Pollution-The alteration of the physical, thermal, chemical, or biological quality of, or the contamination of, any water in the state that renders the water harmful, detrimental, or injurious to humans, animal life, vegetation, or property, or to the public health, safety, or welfare, or impairs the usefulness or the public enjoyment of the water for any lawful or reasonable purpose. Reuse-The authorized use for one or more beneficial purposes of use of water that remains unconsumed after the water is used for the original purpose of use and before that water is either disposed of or discharged or otherwise allowed to flow into a watercourse, lake, or other body of state-owned water. Water conservation plan-a strategy or combination of strategies for reducing the volume of water withdrawn from a water supply source, for reducing the loss or waste of water, for maintaining or improving the efficiency in the use of water, for increasing the recycling and reuse of water, and for preventing the pollution of water. A water conservation plan may be a separate document identified as such or may be contained within another water management document(s). sec.288.2. Water Conservation Plans for Municipal Uses by Public Water Suppliers. (a) A water conservation plan for municipal water use by public water suppliers shall provide information, where applicable, in response to the following: (1) Minimum requirements. All water conservation plans for municipal uses by public drinking water suppliers shall include the following elements: (A) a utility profile including, but not limited to, information regarding population and customer data, water use data, water supply system data, and wastewater system data; (B) specification of conservation goals including, but not limited to, municipal per capita water use goals, the basis for the development of such goals, and a time frame for achieving the specified goals; (C) metering device(s), within an accuracy of plus or minus 5.0% in order to measure and account for the amount of water diverted from the source of supply; (D) a program for universal metering of both customer and public uses of water, for meter testing and repair, and for periodic meter replacement; (E) measures to determine and control unaccounted-for uses of water (for example, periodic visual inspections along distribution lines; annual or monthly audit of the water system to determine illegal connections, abandoned services, etc.); (F) a program of continuing public education and information regarding water conservation; (G) a water rate structure which is not "promotional," i.e., a rate structure which is cost-based and which does not encourage the excessive use of water; (H) a drought management plan including: (i) an education and information program concerning the plan; (ii) notification procedures to identify the initiation and termination of the drought and the corresponding implementation and termination of the drought measures; (iii) trigger conditions signaling the start of any identified drought period; and (iv) drought water-use measures (e.g., curtailment of non-essential water uses and other water use restrictions, etc.) corresponding to each trigger condition; (I) a reservoir systems operations plan, if applicable, providing for the coordinated operation of reservoirs owned by the applicant within a common watershed or river basin in order to optimize available water supplies; and (J) a means of implementation and enforcement which shall be evidenced by: (i) a copy of the ordinance, resolution, or tariff, indicating official adoption of the water conservation plan by the water supplier; and (ii) a description of the authority by which the water supplier will implement and enforce the conservation plan. (2) Additional content requirements. Water conservation plans for municipal uses by public drinking water suppliers serving a current population of 5,000 or more and/or a projected population of 5,000 or more within the next 10 years subsequent to the effective date of the plan shall include the following elements: (A) a program of leak detection, repair, and water loss accounting for the water transmission, delivery, and distribution system in order to control unaccounted-for uses of water; (B) a record management system to record water pumped, water deliveries, water sales, and water losses which allows for the desegregation of water sales and uses into the following user classes: (i) residential; (ii) commercial; (iii) public and institutional; and (iv) industrial; and (C) a requirement in every wholesale water supply contract entered into or renewed after official adoption of the plan (by either ordinance, resolution, or tariff), and including any contract extension, that each successive wholesale customer develop and implement a water conservation plan or water conservation measures using the applicable elements in this chapter; if the customer intends to resell the water, then the contract between the initial supplier and customer must provide that the contract for the resale of the water must have water conservation requirements so that each successive customer in the resale of the water will be required to implement water conservation measures in accordance with applicable provisions of this chapter. (3) Additional conservation strategies. Any combination of the following strategies shall be selected by the water supplier, in addition to the minimum requirements above, if they are necessary to achieve the stated water conservation goals of the plan. The commission may require that any of the following strategies be implemented by the water supplier if the commission determines that the strategy is necessary to achieve the goals of the water conservation plan: (A) conservation-oriented water rates and water rate structures such as uniform or increasing block rate schedules, and/or seasonal rates, but not flat rate or decreasing block rates; (B) adoption of ordinances, plumbing codes, and/or rules requiring water- conserving plumbing fixtures to be installed in new structures and existing structures undergoing substantial modification or addition; (C) a program for the replacement or retrofit of water-conserving plumbing fixtures in existing structures; (D) reuse and/or recycling of wastewater and/or greywater; (E) a program for pressure control and/or reduction in the distribution system and/or for customer connections; (F) a program and/or ordinance(s) for landscape water management; (G) a method for monitoring the effectiveness and efficiency of the water conservation plan; and (H) any other water conservation practice, method or technique which the water supplier shows to be appropriate for achieving the stated goal or goals of the water conservation plan. (b) A water conservation plan prepared in accordance with rules of the Texas Water Development Board and substantially meeting the requirements of this section and other applicable commission rules may be submitted to meet application requirements pursuant to a memorandum of understanding between the commission and the Texas Water Development Board. sec.288.3. Water Conservation Plans for Industrial or Mining Use. A water conservation plan for industrial or mining uses of water shall provide information, where applicable, in response to each of the following elements: (1) a description of the use of the water in the production process, including how the water is diverted and transported from the source(s) of supply, how the water is utilized in the production process, and the estimated quantity of water consumed in the production process and therefore unavailable for reuse, discharge, or other means of disposal; (2) specification of conservation goals, the basis for the development of such goals, and a time frame for achieving the specified goals; (3) a description of the device(s) and/or method(s), within an accuracy of plus or minus 5.0% to be used in order to measure and account for the amount of water diverted from the source of supply; (4) leak-detection, repair, and water loss accounting for water transmission, delivery, and distribution system; (5) application of state-of-the-art equipment and/or process modifications to improve water use efficiency; and (6) any other water conservation practice, method, or technique which the user shows to be appropriate for achieving the stated goal or goals of the water conservation plan. sec.288.4. Water Conservation Plans for Irrigation Use. (a) A water conservation plan for irrigation uses of water shall provide information, where applicable, in response to each of the following subsections. (1) For an individual user: (A) a description of the agricultural production process which shall include, but is not limited to, the type of crops and acreage of each crop to be irrigated, monthly irrigation diversions, any seasonal or annual crop rotation, and soil types of the land to be irrigated; (B) a description of the irrigation method or system and equipment including pumps, flow rates, and plans and/or sketches of the system layout; (C) a description of the device(s) and/or method(s) within an accuracy of plus or minus 5.0%, to be used in order to measure and account for the amount of water diverted from the source of supply; (D) specification of conservation goals including, where appropriate, quantitative goals for irrigation water use efficiency and a pollution abatement and prevention plan; (E) water-conserving irrigation equipment and application system or method, including but not limited to, surge irrigation, low pressure sprinkler, drip irrigation, and nonleaking pipe; (F) leak-detection, repair, and water-loss control; (G) scheduling the timing and/or measuring of the amount of water applied, for example, soil moisture monitoring; (H) land improvements for retaining or reducing runoff, and increasing the infiltration of rain and irrigation water, including but not limited to, land leveling, furrow diking, terracing, and weed control; (I) tailwater recovery and reuse; and (J) any other water conservation practice, method or technique which the user shows to be appropriate for preventing waste and achieving conservation. (2) For a system providing irrigation water to more than one user: (A) a system inventory for the supplier's; (i) structural facilities including the supplier's water storage, conveyance, and delivery structures; (ii) management practices including the supplier's operating rules and regulations, water pricing policy, and a description of practices and/or devices used to account for water deliveries; and (iii) a user profile including square miles of the service area, the number of customers taking delivery of water by the system, the types of crops, the types of irrigation systems, the types of drainage systems, and total acreage under irrigation, both historical and projected. (B) specification of water conservation goals including maximum allowable losses for the storage and distribution system; (C) a description of the practice(s) and/or device(s) which will be utilized to measure and account for the amount of water diverted from the source(s) of supply; (D) a monitoring and record management program of water deliveries, sales, and losses; (E) a leak-detection, repair, and water loss control program; (F) a program to assist customers in the development of on-farm water conservation and pollution prevention plans and/or measures; (G) a requirement in every wholesale water supply contract entered into or renewed after official adoption of the plan (by either ordinance, resolution or tariff), and including any contract extension, that each successive wholesale customer develop and implement a water conservation plan or water conservation measures using the applicable elements in this chapter; if the customer intends to resell the water, then the contract between the initial supplier and customer must provide that the contract for the resale of the water must have water conservation requirements so that each successive customer in the resale of the water will be required to implement water conservation measures in accordance with applicable provisions of this chapter; (H) official adoption of the water conservation plan and goals, by ordinance, rule, resolution, or tariff, indicating that the plan reflects official policy of the supplier; (I) a drought contingency plan providing: (i) an education and information program concerning the plan; (ii) notification procedures to identify the initiation and termination of the drought and the corresponding implementation and termination of the drought measures; (iii) trigger conditions signaling the start of any identified drought period; and (iv) drought water-use measures (e.g., curtailment of non-essential water uses and other water use restrictions, etc.) corresponding to each trigger condition; and (J) any other water conservation practice, method, or technique which the supplier shows to be appropriate for achieving conservation. (b) A water conservation plan prepared in accordance with the rules of the Soil Conservation Service, the State Soil and Water Conservation Board, or other federal or state agency and substantially meeting the requirements of this section and other applicable commission rules may be submitted to meet application requirements pursuant to a memorandum of understanding between the commission and that agency. sec.288.5. Water Conservation Plans for Wholesale Water Suppliers. A water conservation plan for a wholesale water supplier shall provide information, where applicable, in response to each of the following paragraphs. (1) Minimum requirements. All water conservation plans for wholesale water suppliers shall include the following elements: (A) a description of the wholesaler's service area, including population and customer data, water use data, water supply system data, and wastewater data; (B) specification of conservation goals including, where appropriate, target per capita water use goals for the wholesaler's service area, maximum acceptable unaccounted-for water, the basis for the development of said goals, and a time frame for achieving those goals; (C) a description as to which practice(s) and/or device(s) will be utilized to measure and account for the amount of water diverted from the source(s) of supply; (D) a monitoring and record management program for determining water deliveries, sales, and losses; (E) a program of metering and leak detection and repair for the wholesaler's water storage, delivery and distribution system; (F) a requirement in every wholesale water supply contract entered into or renewed after official adoption of the water conservation plan (by either ordinance, resolution, or tariff) and including any contract extension, that each successive wholesale customer develop and implement a water conservation plan or water conservation measures using the applicable elements of this chapter; if the customer intends to resell the water, then the contract between the initial supplier and customer must provide that the contract for the resale of the water must have water conservation requirements so that each successive customer in the resale of the water will be required to implement water conservation measures in accordance with applicable provisions of this chapter; (G) a drought management plan including: (i) an education and information program concerning the plan; (ii) notification procedures to identify the initiation and termination of the drought and the corresponding implementation and termination of the drought measures; (iii) trigger conditions signaling the start of any identified drought period; and (iv) drought water-use measures corresponding to each trigger condition; and (H) a reservoir systems operations plan, if applicable, providing for the coordinated operation of reservoirs owned by the applicant within a common watershed or river basin in order to optimize available water supplies; and (I) a means for implementation and enforcement which shall be evidenced by: a copy of the ordinance, rule, resolution, or tariff, indicating official adoption of the water conservation plan by the water supplier; and a description of the authority by which the water supplier will implement and enforce the conservation plan. (2) Additional conservation strategies. Any combination of the following strategies shall be selected by the water wholesaler, in addition to the minimum requirements above, if they are necessary in order to achieve the stated water conservation goals of the plan. The commission may require by commission order that any of the following strategies be implemented by the water supplier if the commission determines that the strategies are necessary in order for the goals of the water conservation plan to be achieved. (A) conservation-oriented water rates and water rate structures such as uniform or increasing block rate schedules, and/or seasonal rates, but not flat rate or decreasing block rates; (B) a program to assist customers in the development of conservation pollution prevention and abatement plans; (C) a program for reuse and/or recycling of wastewater and/or greywater; and (D) any other water conservation practice, method, or technique which the wholesaler shows to be appropriate for achieving the stated goal or goals of the water conservation plan. sec.288.7. Plans submitted with a water right application for new or additional state water. (a) A water conservation plan submitted with an application for a new or additional appropriation of water must include data and information which: (1) supports the applicant's proposed use of water with consideration of the water conservation goals of the water conservation plan; (2) evaluates conservation as an alternative to the proposed appropriation; and (3) evaluates any other feasible alternative to new water development including, but not limited to, waste prevention, recycling and reuse, water transfer and marketing, regionalization, and optimum water management practices and procedures. (b) It shall be the burden of proof of the applicant to demonstrate that no feasible alternative to the proposed appropriation exists and that the requested amount of appropriation is necessary and reasonable for the proposed use. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 12, 1993. TRD-9321514 Mary Ruth Holder Director, Legal Division Texas Water Commission Effective date: May 3, 1993 Proposal publication date: October 30, 1992 For further information, please call: (512) 463-8069 Chapter 295. Water Rights, Procedural Subchapter A. Requirements of Water Use Permit Application 31 TAC sec.295.9 The Texas Water Commission (commission) adopts an amendment to sec.295.9, concerning water rights, procedural, without changes to the proposed text as published in the October 30, 1992, issue of the Texas Register (17 TexReg 7651 et seq). The amendment will clarify existing content and review requirements for water conservation plans submitted with applications for new or amended water rights pursuant to the Texas Water Code ("Code"), sec.11.1271 and sec.11.134(b). Concurrently, the TWC adopts new Chapter 288 of this title, relating to general content requirements for water conservation plans applicable to all water- related regulatory programs. The commission also concurrently adopts amendments to sec.297.1 and new sec.sec.297.53, 297.54, 297.55, and 297.56, water rights, substantive, of this title. The changes to Chapter 297 clarify the issuance and conditions of use of state water as it relates to water conservation. Section 295.9, as amended, provides that a water conservation plan submitted with an application for a new or amended water right must conform to requirements contained in Chapter 288. Exemptions from the requirement to submit a plan are provided for applications for in-place use, emergency use, and the temporary use of water. However, all water right holders must beneficially use the water appropriated in accordance with the water right and must exercise reasonable diligence to avoid waste. Section 11.134(b)(4) of the Code provides that the commission may not grant an application for a water appropriation unless the applicant has provided evidence that reasonable diligence will be used to avoid waste and achieve water conservation. Section 11.1271 of the Code provides that the commission may require the formulation and submission of a water conservation plan and the adoption of reasonable water conservation measures. Conservation measures are defined by the Code, sec.11.002(8)(B), as those practices, techniques, and technologies that will reduce the consumption of water, reduce the loss or waste of water, improve the efficiency in the use of water, or increase the recycling and reuse of water so that a water supply is made available for future or alternative uses. The water conservation plan provides evidence that reasonable diligence will be used to avoid waste and achieve conservation of state water so that appropriated waters will be beneficially used for the authorized purposes in accordance with the Code, sec.11.025 and sec.11.026. The new and amended rules reflect the commission's commitment to and responsibility for solutions which seek to alleviate potential and existing problems throughout the state where water demand exceeds available or long-term supply, new reservoir sites are scarce and environmentally sensitive, supplies of groundwater are overdrafted and sometimes not of necessary quality for the intended use, or the development of new sources of water supply may result in unnecessary capital outlay and corresponding rate increases. Where water conservation programs are the least costly methods of insuring a sufficient and affordable supply of water, such programs should precede the development of additional water supply sources. Costs to be considered also include environmental impacts and values. The rules are intended to promote the development and implementation of a water conservation plan as either an alternative to, or a complement to, the traditional emphasis on only augmenting the stock of water supplies. In addition to the minimum 30-day notice and comment period, the commission provided an extended period for public comment through December 18, 1992. Also, the commission held a public hearing on Monday, January 25, 1993, to receive additional comment on the proposed rules. A total of 11 different groups and entities submitted comments on the proposed amendment to sec.295.9. These commenters reflected a broad range of interests representing cities, agriculture, industry, business, state, and local water resource management agencies, and environmental and public interest groups. Most comments were generally favorable to the amendment. There were three main categories of comments: those in general support of the amendment but would like to see greater applicability of this requirement; those generally opposed to the amendment; and those who would like some portions clarified and other sections deleted. Commenters which have expressed general support of the proposed amendment include: the Texas Water Development Board; the Lower Colorado River Authority; the Environmental Defense Fund; the Sierra Club; and the Save Barton Creek Association. Commenters which expressed general opposition to the proposed amendment include: the Harlingen Irrigation District; the City of Tyler; the City of Winnsboro; the Texas Municipal League; and the Texas Farm Bureau. Other groups and entities which provided comments on the proposed amendment include the Texas Irrigation Council. Several commenters requested that the submission of a plan not be mandatory. These commenters also believe that this requirement is too costly and burdensome. The commission respectfully disagrees with these comments. The plan is necessary in order for the applicant to demonstrate that reasonable diligence will be used to achieve water conservation and avoid waste. It is also necessary for the commission to have some basis for determining whether the requested amount is necessary and reasonable for the proposed use. The submission of a water conservation plan is not a new requirement. Since the enactment of related statutory provisions in 1985, the commission has required the submission of a plan with applications for new and amended water rights. The time, effort, and cost of developing a plan has corresponded to the amount and purpose of the requested appropriation. In developing forms and technical manuals for the applicant, as well as having technical specialists assist the applicant with any questions, the commission has made this requirement as economical as possible. Assistance with plan development for agricultural uses may be obtained from agencies such as the Soil Conservation Service. It should also be noted that the plan will assist the applicant in developing optimum water management practices to increase available yields, prevent unnecessary energy costs, and avoid costly development of additional water supplies. Several commenters wished for the requirement of submitting a plan to be applied to all water right holders. The commission disagrees with this comment at this time. There are thousands of existing water right holders. To require each to submit a plan for review and approval would be administratively impossible. Rather, the requirement will be applied to existing water right holders when they submit an application to amend their right. With respect to other existing appropriators, the commission imposes by rule the requirement that the water appropriated must be beneficially used without waste pursuant to Code provisions and conditions of the water right. Additionally, new amendments to Chapter 297 of the commission's rules creating new sec.297.56 are intended to provide adequate market incentives to existing water right holders to implement water conservation measures. Finally, some commenters have incorrectly interpreted the amendment to provide that existing water right holders must implement new or additional water conservation measures. If they fail to do so, they reason, the commission may determine that a portion of the right is not being beneficially used and may be subject to cancellation. The commission disagrees with this interpretation. The term "beneficial use" is defined by the Code, sec.11.002(4), to mean the use of an amount of water "which is economically necessary" for a purpose authorized by law "when reasonable intelligence and reasonable diligence are used in applying the water" to that purpose. Therefore, amounts of water used in excess of those amounts which are necessary and reasonable for the authorized use are not beneficially used. This could include amounts unreasonably lost because of failure to diligently and reasonably maintain diversion and distribution systems, i.e., waste. The beneficial use standard applies to every water right and has been a condition of every water right since the establishment of the prior appropriation system in Texas. The definition for "conservation" provided by the Code, sec.11.002(8)(B), includes measures to reduce the loss of water. If such loss results in the use of an amount of water in excess of that which is economically necessary for the authorized purpose when reasonable intelligence and reasonable diligence are used in applying the water, then the implementation of this water conservation measure to reduce the loss of water would be necessary for the water to be beneficially used in accordance with the water right. It is a well established rule of law that the right to use water cannot be perfected unless it is beneficially used in accordance with the water right. (Texas Water Code, sec.11.025 and sec.11.026.) Failure to beneficially use water in accordance with the right may subject the right to use that amount not beneficially used to cancellation. (Texas Water Code, sec.11.171 et seq.) The amendment is adopted under the Texas Water Code sec. sec.5.103, 5.105, and 5. 120, which provides the commission with the authority to promulgate rules as necessary to carry out its powers and duties under the Texas Water Code and other laws of the state. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 12, 1993. TRD-9321515 Mary Ruth Holder Director, Legal Division Texas Water Commission Effective date: May 3, 1993 Proposal publication date: October 30, 1992 For further information, please call: (512) 463-8069 Chapter 297. Water Rights, Substantive Subchapter A. Definitions The Texas Water Commission (TWC) adopts amendments to sec.297.1 and new sec.sec.297.53-297.56, with changes to the proposed text as published in the October 30, 1992, issue of the Texas Register (17 TexReg 7653 et seq). The purpose of these rules is to clarify the procedure for review and approval of a water conservation plan submitted with an application for a new or amended water right pursuant to the Texas Water Code (Code), sec.11.1271 and sec.11.134, and to clarify existing conditions of water use providing that appropriated water must be beneficially used without waste, pursuant to the Code, sec.sec.11.025, 11.026, 11.092, and 11.093. The amendments to sec.297.1 add new definitions for the terms "instream use, " "irrigation water use efficiency," "municipal per capita water use," "pollution," "reservoir system operations," "reuse," "waste," and "water conservation plan." New sec.297.53 and sec.297.54 clarify existing conditions of water use providing that appropriated water must be beneficially used without waste pursuant to the Code, sec.sec.11.025, 11.026, 11.092, and 11.093. New sec.297.55 clarifies the existing review procedure for water conservation plans submitted with an application for a new or amended water right. The plan will be used to assist the commission in determining whether any feasible alternative to the requested appropriation exists, whether the requested amount of appropriation as measured at the point of diversion is reasonable and necessary for the proposed use, the term and other conditions of the water right, and to ensure that reasonable diligence will be used to avoid waste and achieve water conservation. Based upon its review, the commission shall determine whether to deny or grant, in whole or in part, the requested appropriation. The burden of proof with regard to these issues rests with the applicant. New sec.297.56 seeks to encourage existing water right holders who were not subject to water conservation plan requirements when they obtained their water rights to implement water conservation measures. The rule provides that the amount of water appropriated which is conserved as a result of the implementation of water conservation measures shall not be subject to cancellation or forfeiture for non-use if the conserved water is shown to be held to meet additional water needs of the permittee or is sold or transferred. This provision is intended to provide adequate market incentive for water conservation by the holders of older, established water rights and facilitate the transfer and marketing of conserved water to meet alternative and future needs. The rule also establishes a market place for water by providing that the watermaster or executive director may make information provided by water right holders as to the availability of water for sale of lease to prospective buyers upon request and payment of allowable fees. Finally, this rule provides that consideration shall be given to the need for instream uses for water quality, aquatic and riparian wildlife habitat, bays and estuaries, and other public purposes in the commission's review and action on an amendment to a water right, including an amendment relating to the sale or transfer of conserved water provided by this section. The commission may reserve from appropriation water necessary to protect these instream uses by placing limitations and conditions on the amended water right. The Code, sec.11.134(b)(4) provides that the commission may not grant an application for a water appropriation unless the applicant has provided evidence that reasonable diligence will be used to avoid waste and achieve water conservation. The Code, sec.11.1271 provides that the commission may require from a water right applicant the formulation and submission of a water conservation plan and the adoption of reasonable water conservation measures. Such measures are defined by the Code, sec.11.002(8)(B) as those practices, techniques, and technologies that will reduce the consumption of water, reduce the loss or waste of water, improve the efficiency in the use of water, or increase the recycling and reuse of water so that a water supply is made available for future or alternative uses. The Code, sec.11.025 provides that the right to use state water under any permit, certified filing, or certificate of adjudication is limited to the amount which is being or can be beneficially used for the authorized purposes, but not to exceed the amount specifically appropriated. Beneficial use is defined by the Code, sec.11.002(4) to mean that amount of water which is "economically necessary" for an authorized purpose "when reasonable intelligence and reasonable diligence are used" in applying the water to that purpose. The Code, sec.11.026 and sec.11.171 et seq provides that the right to appropriate that amount of water not beneficially used cannot be perfected and is subject to limitation, cancellation, and forfeiture as provided by law. The water conservation plan provides evidence that reasonable diligence will be used avoid waste and achieve conservation of state water so that appropriated waters will be beneficially used for the authorized purposes. It also provides the commission with some basis for determining whether the requested new or amended appropriation is necessary and reasonable. Finally, prohibiting waste ensures that water will be beneficially used in accordance with the conditions of the water right. In developing forms and technical manuals for the applicant, as well as having technical specialists assist the applicant with any questions, the commission has made the submission of a water conservation plan as economical as possible. The plan will also assist the applicant in developing optimum water management practices to increase available yields, prevent unnecessary energy costs, and avoid costly development of additional water supplies. These rules reflect the Commission's continuing efforts to assist water resource managers in developing new water development strategies to meet the state's future water needs. Water demands have been traditionally met by the appropriation of more water and the construction of new reservoirs. However, obtaining a permit for this has become more costly, time-consuming, and faces environmental and legal challenges. The average time to plan, obtain all necessary state and federal permits, and complete construction of a major reservoir in Texas today is approximately 25-30 years. The withdrawal of federal dollars to support construction of new reservoirs means that the financial burden of future projects will fall increasingly to local ratepayers. New reservoir construction today costs about $300 per acre-foot, or about three times the cost of conserving the same amount. In addition, Texas rivers and streams have almost all reached full appropriation. In many areas of the state, the available yield of existing surface and ground water supplies may not be sufficient to meet existing and future water demands, particularly during a severe or extended drought period. Even in areas where there may be sufficient available unappropriated water for construction of a reservoir, favorable or appropriate sites are difficult to find. In a time of ever-increasing water resource scarcity and more stringent environmental regulation, there must be a shift in water planning from water development to water management. Existing and remaining water supplies must now be managed as an increasingly scarce, finite resource. Water conservation and other alternatives to traditional water development strategies are quickly gaining acceptance as the best financial, environmental, equitable, and political means of extending the state's finite water supply to meet future needs and continue to allow strong economic growth. These rules were carefully developed over a two-year period. During this period, commission staff thoroughly studied the conservation initiatives of other states and worked closely with affected entities and groups in Texas in re-examining existing rules and guidelines to determine whether and how they could be amended to better assist water resource planners and managers in achieving water conservation goals. Additionally, the Clean Water Council, a commission-sponsored public advisory group, submitted recommendations to the commission on water resource management issues, including water conservation. Applicable recommendations of the Council have been incorporated into the rules. Another commission-sponsored advisory group, the Agriculture Advisory Committee, also assisted in the review and development of the rules. In addition to the minimum 30-day notice and comment period provided by the Administrative Procedures and Texas Register Act, the commission provided an extended period for public comment on the proposed rules through December 18, 1992. Also, the commission held a public hearing on Monday, January 25, 1993, to receive additional comment on the proposed rules. A total of 19 different groups and entities submitted comments on the proposed rules. These commenters reflected a broad range of interests representing cities, agriculture, industry, business, state and local water resource management agencies, and environmental and public interest groups. Suggested changes have been incorporated into the rules where appropriate. Commenters which expressed general support of the proposed rules include: the Texas Water Development Board; the Environmental Defense Fund; the Sierra Club; and the Save Barton Creek Association. Commenters which expressed general opposition to the proposed rules include: the Lower Colorado River Authority; the Harlingen Irrigation District; the Hidalgo and Cameron Counties Irrigation District; the City of Tyler; the City of Corpus Christi; the Texas Municipal League; the Texas Irrigation Council; the Texas Water Conservation Association; and the Texas Farm Bureau. Other groups and entities which provided comments to the proposed rules include: the City of Dallas Water Utilities; the City of Fort Worth; the City of Houston; the City of Leon Valley; Texas Utilities Service; and Oxychem. With respect to the new definitions provided in sec.297.1 which contained the word "water," one commenter wanted the word "state" inserted before water. The commission finds this change unnecessary and redundant of the existing definition of the term "water" contained in sec.297.1, which includes only state water, and is applicable to the term "water" wherever it is found in the rules. One commenter stated that the definition of "irrigation water use efficiency" should explicitly address "allowable" channel and other losses. The commission feels this can only be done in a meaningful way on a case-by-case analysis, and therefore, the definition is not modified. One commenter recommended that the term "pollution" be qualified with "water." This proposed change is unnecessary since the definition of the term relates it to water pollution. Additionally, in response to comments, this term as it is used in sec.297.54 relating to Waste has been clarified as to not apply to the beneficial use of water for residential, domestic, or other uses where the water is properly treated prior to reuse or discharge into or adjacent to water in the state so that the water may be subsequently beneficially used. A commenter suggested that the definition of the term "waste" be modified to relate to the "unlawful" diversion of water. This proposed change is unnecessary because the rules themselves make unlawful a diversion which results in waste. One commenter stated that the definition of "reuse" was too restrictive and did not recognize return flows which may provide for environmental needs. The commission disagrees in part with this comment. Reuse may be limited by the terms of a water right to provide return flows to meet environmental water needs and senior water rights. With respect to the term "per capita water use", the proposed definition has been amended to now read "municipal per capita water use". The reason for this change is to clarify that per capita water use is an inapplicable measurement for agricultural and industrial water use. This definition is also in accordance with water management accounting by the Texas Water Development Board, which is responsible for projecting water demands for the State of Texas. With respect to proposed amendments to definitions of "beneficial use" and "conservation" and the proposed new definition for "waste" in sec.297.1, and proposed new sec.297.53 and sec.297.54, some commenters have incorrectly interpreted these rules together to provide that existing water right holders must implement new or additional water conservation measures not presently required under their existing water rights. If they fail to do so, they reason, the commission may determine that a portion of the right is not being beneficially used and may be subject to cancellation. The commission disagrees with this interpretation. The term "beneficial use" is defined by the Code, sec.11.002(4) to mean the use of an amount of water "which is economically necessary" for a purpose authorized by law "when reasonable intelligence and reasonable diligence are used in applying the water" to that purpose. Therefore, amounts of water used in excess of those amounts which are necessary and reasonable for the authorized use are not beneficially used. This could include amounts unreasonably lost because of failure to diligently and reasonably maintain diversion and distribution systems, i.e., waste. The beneficial use standard applies to every water right and has been a condition of every water right since the establishment of the prior appropriation system in Texas. The definition for "conservation" provided by the Code, sec.11.002(8)(B) includes measures to reduce the loss of water. If such loss results in the use of an amount of water in excess of that which is economically necessary for the authorized purpose when reasonable intelligence and reasonable diligence are used in applying the water, then the implementation of this water conservation measure to reduce the loss of water would be necessary for the water to be beneficially used in accordance with the water right. It is a well established rule of law that the right to use water cannot be perfected unless it is beneficially used in accordance with the water right (Texas Water Code, sec.11.025 and sec.11.026). Failure to beneficially use water in accordance with the right may subject the right to use that amount not beneficially used to cancellation (Texas Water Code, sec.11.171 et seq). The proposed rules seek to provide existing interpretation and application of these statutory definitions and provisions. To address these comments and to avoid misinterpretation of the rules, however, proposed amendments for the terms "beneficial use" and "conservation" are not adopted and the definition for "waste" is amended. Additionally, proposed sec.297.53 relating to Conservation and Beneficial Use is amended to provide that a water right holder must use those measures necessary to ensure the beneficial use of water without waste in accordance with the terms and conditions of the water right and in accordance with applicable law. Proposed sec.297.54, relating to Waste, has been amended to clarify what is meant by the faulty design or negligent operation of a water works, to specify procedures for the abatement of waste defined to be a public nuisance, and to clarify rules providing that the pollution of water in violation of applicable standards and rules constitutes the waste of water. With respect to proposed sec.297.55, relating to Consideration of Water Conservation Plans, clarification has been added to the provision relating to the consideration of feasible alternatives to the requested appropriation by the commission in its review and action on an application, and a definition for the term "reservoir system operations" found in sec.297.55 has been added to sec.297.1. With respect to proposed sec.297.56, relating to Conserved Water, additional language has been added to indicate that the right to conserved water shall be retained and protected if a water management plan is submitted in accordance with the Code, sec.11.173(b)(2). Additionally, a definition for the term "instream uses" found in sec.297.56(b) has been provided in sec.297.1 to provide more clarity and meaning for this term and the commission's review and action on an application for an amendment of a water right including an amendment relating to the sale or transfer of conserved water. With respect to proposed sec.297.56(b), one commenter stated that it was beyond the commission's authority to consider environmental impacts relating to the sale or transfer of water. This commenter stated that the water right holder had a vested right to the water and commission approval of the sale or transfer of water was unnecessary. The commission respectfully disagrees with this comment. A person only has a vested right to that water which has been beneficially used in accordance with the existing right, not to some future or different use of the water (Texas Water Code, sec.11.025 and sec.11.026). Amendments to water rights to effect a sale or transfer of a water right must be approved by the commission (Texas Water Code, sec.11.122). This requirement has been upheld by the state's courts (Clark v. Briscoe Irrigation Company, 200 S.W.2d 674 (Texas Civil Appeals-Austin 1947, writ dismissed, n.r.e.)). Commission rules contained in sec.295.71 of this title provide that an application shall be prepared in the same manner as an original application for a permit. This provides for sec.11.134, Texas Water Code, criteria to be applied to applications for amendments. Those criteria provide for the consideration of beneficial use, availability of unappropriated water, protection of existing rights, avoidance of waste, and conservation in evaluating an amendment. Additionally, the public welfare standard may determine the social value of the new use compared to the existing use. Also, the new use would have to satisfy current standards of conservation, waste avoidance, water quality, and instream flow maintenance for environmental protection and estuaries, or for fish and wildlife habitat in accordance with the Code, sec. sec.11.134, 11.147, 11.150, and 11.152. In response to the comment, proposed sec.297.56 has been amended to clarify the commission's authority to approve amendments to water rights. 31 TAC sec.297.1 The amendments are adopted under the Water Code, sec. sec.5.103, 5.105, and 5. 120, which provides the commission with the authority to promulgate rules as necessary to carry out its powers and duties under the Texas Water Code and other laws of the state. sec.297.1. Definitions. The following words and terms, when used in this chapter, and in Chapter 295 of this title (relating to Water Rights, Procedural), shall have the following meanings, unless the context clearly indicates otherwise. Instream use-The beneficial use of instream flows for such purposes including, but not limited to, navigation, recreation, hydropower, fisheries, game preserves, stock raising, park purposes, aesthetics, water quality protection, aquatic and riparian wildlife habitat, freshwater inflows for bays and estuaries, and any other instream use recognized by law. An instream use is a beneficial use of water. Water necessary to protect instream uses for water quality, aquatic and riparian wildlife habitat, recreation, navigation, bays and estuaries, and other public purposes may be reserved from appropriation by the commission. Irrigation water use efficiency-the percentage of that amount of irrigation water which is beneficially used by agriculture crops or other vegetation relative to the amount of water diverted from the source(s) of supply. Beneficial uses of water for irrigation purposes include but are not limited to evapotranspiration needs for vegetative maintenance and growth and salinity management and leaching requirements associated with irrigation. Municipal per capita water use-The sum total of water diverted into a water supply system for residential, commercial, and public and institutional uses, divided by actual population served. Pollution-The alteration of the physical, thermal, chemical, or biological quality of, or the contamination of any water in the state that renders the water harmful or detrimental to humans, animal life, vegetation, or property, or the public health, safety or welfare, or impairs the usefulness of the public enjoyment of the waters for any lawful or reasonable purpose. Reservoir system operations-The coordinated operation of reservoirs within a common watershed or river basin or owned or operated by the same entity in order to optimize available water supplies. Reuse-The authorized use for one or more beneficial purposes of use of water that remains unconsumed after the water is used for the original purpose of use and before that water is either disposed of or discharged or otherwise allowed to flow into a watercourse, lake, or other body of state-owned water. Waste-The diversion of water if the water is not used for a beneficial purpose; the use of that amount of water in excess of that which is economically reasonable for an authorized purpose when reasonable intelligence and reasonable diligence are used in applying the water to that purpose. Waste may include, but not be limited to, the unreasonable loss of water through faulty design or negligent operation of a water delivery, distribution, or application system, or the diversion or use of water in any manner that causes or threatens to cause pollution of water. Waste does not include the beneficial use of water where the water may become polluted because of the nature of its use, such as domestic or residential use, but is subsequently treated in accordance with all applicable rules and standards prior to its discharge into or adjacent to water in the state so that it may be subsequently beneficially used. Water conservation plan-A strategy or combination of strategies for reducing the volume of water withdrawn from a water supply source, for preventing or reducing the loss or waste of water, for maintaining or improving the efficiency in the use of water, for increasing the recycling and reuse of water, and for preventing the pollution of water. A water conservation plan may be a separate planning document or may be contained within another water management document(s). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 12, 1993. TRD-9321516 Mary Ruth Holder Director, Legal Division Texas Water Commission Effective date: May 3, 1993 Proposal publication date: October 30, 1992 For further information, please call: (512) 463-8069 Subchapter E. Issuance and Conditions of Water Permit or Certificate of Adjudication 31 TAC sec.sec.297.53-297.56 The new sections are adopted under the Water Code, sec. sec.5.103, 5.105, and 5.120, which provides the commission with the authority to promulgate rules as necessary to carry out its powers and duties under the Texas Water Code and other laws of the state. sec.297.53. Conservation and Beneficial Use. (a) The right to use state water under any permit, certified filing, or certificate of adjudication is limited to the amount which is being or can be beneficially used for the authorized purpose but not to exceed the amount specifically appropriated. (b) Only that amount of water that may be beneficially used for the authorized purpose may be diverted. Water which is taken in excess of that needed for the authorized purpose is considered surplus water, not appropriated, and must be returned to the stream of origin if reasonably practicable to do so by gravity flow. (c) The right to appropriate that amount of water not beneficially used cannot be perfected and is subject to limitation, cancellation, or forfeiture as provided by law. (d) A water right holder using state water shall use those measures necessary to ensure the beneficial use of water without waste in accordance with these rules and the terms and conditions of the water right and applicable law. sec.297.54. Waste. (a) The waste of water is prohibited and is an unlawful use of state water. (b) The use of that amount of water in excess of that which is economically reasonable for an authorized purpose when reasonable intelligence and reasonable diligence are used in applying the water to that purpose constitutes waste. Waste also includes the diversion or use of water in any manner that causes or threatens to cause pollution of water in violation of applicable rules and standards. (c) A person who permits an unreasonable loss of water through faulty design or negligent operation of any waterworks commits waste, and the commission may declare the waste to be a public nuisance. Faulty design or negligent operation shall include, but not be limited to, the design or operation of waterworks not in accordance with applicable state or federal law, commission rules, plumbing fixture codes or ordinances, or other applicable law or, in the absence of such law, not in accordance with commonly accepted industry standards, engineering principles, and best management practices. (d) The commission or a person injured by the waste of water as provided by subsection (c) may seek civil action in the appropriate state district court to have the nuisance abated and the commission may direct the person supplying the water to close the gates of the person wasting the water and keep them closed until the commission determines that the unlawful use of water is corrected. sec.297.55. Consideration of Water Conservation Plans. (a) Review. Information in the water conservation plan provided by a water right applicant shall be considered by the commission in determining whether any feasible alternative to the requested appropriation exists, whether the requested amount of appropriation as measured at the point of diversion is reasonable and necessary for the proposed use, the term and other conditions of the water right, and to ensure that reasonable diligence will be used to avoid waste and achieve water conservation. Based upon its review, the commission shall determine whether to deny or grant, in whole or in part, the requested appropriation. (b) Burden of proof regarding need for appropriation. A water conservation plan submitted with an application requesting an appropriation for new or additional state water must include data and information which: (1) supports the applicant's proposed use of water with consideration of the water conservation goals of the water conservation plan; (2) evaluates conservation as an alternative to the proposed appropriation; and (3) evaluates other feasible alternatives to new water development, including but not limited to, waste prevention, recycling and reuse, water transfer and marketing, reservoir system operations, and optimum water management practices and procedures. It shall be the burden of proof of the applicant to demonstrate that no feasible alternative to the proposed appropriation exists and that the requested amount of appropriation is necessary and reasonable for the proposed use. (c) Implementation. Any water conservation measures prescribed by the commission shall be implemented as required by the terms and conditions of a commission order or water right, or by rule. sec.297.56. Conserved Water. (a) The right to use that amount of water appropriated which is conserved as a result of the implementation of water conservation measures shall not be subject to cancellation or forfeiture if, subsequent to the effective date of having implemented the conservation measure(s), the water right holder submits to the executive director a sworn water management plan providing evidence that: (1) the conserved water is needed in order to meet additional, specifically identified water needs of the water right holder; or (2) the conserved water is being sold for a specific beneficial use or that portion of the water right is being transferred for beneficial use(s); or (3) the water right holder requests that the watermaster or executive director make available to interested buyers or lessors at their request information indicating that the conserved water is available for lease or sale. (b) A water management plan submitted in accordance with subsection (a) of this section may be submitted with the annual use report provided by sec.295.202 of this title (relating to Reports) and may be considered for the purposes of the Texas Water Code, sec.11.173(b)(2). To qualify for purposes of the Texas Water Code, sec.11.173(b)(2), a plan submitted pursuant to subsection (a) of this section may not result in more than a consecutive 10-year period of non-use of the conserved water. (c) Based upon information contained in water right holders' water management plans provided by subsection (a) of this section or other information provided by the water right holders, the executive director or watermaster may construct maps and compile information indicating where and how much water, including conserved water, may be available for lease or purchase and make such information available to interested persons upon their request and payment of allowable fees. Fees may be assessed for the administrative and reproduction costs for this information in accordance with state law. (d) The commission's review and action on an application to amend a water right, including an amendment relating to the sale or transfer of conserved water, shall consider the needs of instream uses for water quality, aquatic and riparian wildlife habitat, bays and estuaries, and other public purposes. Accordingly, the commission may reserve from appropriation water necessary to protect these instream uses by placing limitations and conditions on the amended water right. Such reservation is superior to the appropriative right and shall not be subject to the appropriative right except as expressly provided in the water right or by an order issued by the commission pursuant to the Texas Water Code, sec.11.148. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 12, 1993. TRD-9321517 Mary Ruth Holder Director, Legal Division Texas Water Commission Effective date: May 3, 1993 Proposal publication date: October 30, 1992 For further information, please call: (512) 463-8069 TITLE 34. PUBLIC FINANCE Part II. Texas State Treasury Chapter 11. Cigarette and Tobacco Products Tax 34 TAC sec.11.52 The Texas State Treasury adopts new sec.11.52 concerning importation of 200 or fewer cigarettes, without changes to the proposed text as published in the March 12, 1993 issue of the (18 TexReg 1659). The new section is needed in order to stop the importation of tax-free cigarettes by persons younger than 18 years of age at ports of entry; and to collect any additional taxes due where more than 200 cigarettes are imported. The new section provides definitions of terms used in this section, defines factual situations to which the section applies, and provides for enforcement by the Texas Alcoholic Beverage Commission employees at ports of entry. No comments were received regarding adoption of the new section. The new section is adopted under the Texas Tax Code, sec.154.024(c) and sec.111.002, which provides the treasurer with the authority to adopt rules that do not conflict with the laws or the constitution of this state or the United States for the enforcement and collection of taxes and other revenue under Title 2, Texas Tax Code. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 4, 1993. TRD-9321379 Alicia M. Fechtel General Counsel Texas State Treasury Effective date: April 29, 1993 Proposal publication date: March 12, 1993 For further information, please call: (512) 463-5971 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 6. Disaster Assistance Case Decision, Review, and Closing 278>40 TAC sec.6.303 The Texas Department of Human Services (DHS) adopts the repeal of sec.6.303 and adopts new sec.6.303, concerning the right of applicants for disaster assistance under the Individual and Family Grant Program (IFGP) to request reconsideration and to appeal, without changes to the proposed text as published in the February 23, 1993, issue of the Texas Register (18 TexReg 1152). The justification for the repeal and new section is to change the appeal authority from the Texas Department of Public Safety, Division of Emergency Management, to the DHS Hearings Department. New sec.6.303 also describes procedures and time frames for reconsideration and appeals. The repeal and new section will function by providing a hearing by a DHS hearings officer to persons who want to appeal a decision on their IFGP application. Previously, IFGP applicants who appealed received only an administrative review of their case. No comments were received regarding adoption of the repeal and new section. The repeal is adopted under the Human Resources Code, Title 2, Chapter 22 which provides the department with the authority to administer public assistance programs. sec.6.303. Right to Request an Appeal. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 8, 1993. TRD-9321421 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: May 1, 1993 Proposal publication date: February 23, 1993 For further information, please call: (512) 450-3765 The new section is adopted under the Human Resources Code, Title 2, Chapter 22 which provides the department with the authority to administer public assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 8, 1993. TRD-9321422 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: May 1, 1993 Proposal publication date: February 23, 1993 For further information, please call: (512) 450-3765 Chapter 27. Intermediate Care Facilities for the Mentally Retarded (ICFs-MR) Subchapter E, Eligibility and Review 40 TAC sec.27.518 The Texas Department of Human Services (DHS) adopts new sec.27.518, concerning reconsideration of level-of-care determination and effective dates in its Intermediate Care Facilities for the Mentally Retarded (ICFs-MR) rule chapter. The new section is adopted with changes to the proposed text published in the February 12, 1993, issue of the Texas Register (18 TexReg 923). The justification for the new section is to allow ICF-MR facilities to request reconsideration of a client's level-of-care determination and effective dates for periods of time when the level-of-care expired or was incorrect. If the facility documents that services were provided for the period of time that reconsideration is requested, recoupment of funds may be possible. The section will function by enabling ICF-MR facilities to recoup funds for services rendered to eligible clients for periods of time not covered by an effective level-of-care or an incorrect level-of-care assignment. During the public comment period, comments were received from the Tarrant County Mental Health and Mental Retardation Services; Mission Road Developmental Center; Stepping Stone Residential Resources; Volunteers of America; Advo Companies, Inc.; Harmony Living Centers, Inc.; and Grace Residential Enterprises. A summary of the comments and responses follows: COMMENT: All of the commenters objected to the section that limits the requests for reconsideration of level-of-care determinations to those instances that occur after January 1, 1993. Several commenters requested that DHS consider changing the date to cover instances that occurred beginning January 1, 1988, or January 1990. RESPONSE: DHS will accept claims for payment of Medicaid services rendered from January 1, 1986, to December 1, 1992, for periods of time that have not been claimed or have been previously denied due to expired levels of care. In paragraph (2)(B), DHS has added language to clarify that DHS will accept claims for payment for the period of January 1, 1986, to December 31, 1992, if received not later than August 31, 1993, according to the procedures in its policy letter of February 22, 1993. For instances that occur after January 1, 1993, DHS will process claims in accordance with the requirements in the rule. In addition to the change resulting from public comments, DHS is adopting paragraph (4), third sentence, with a minor editorial correction, and is adopting paragraph (6) with a change to reference DHS's Legal Services rule chapter instead of its Fair Hearings, Fraud, and Civil Rights Handbook. The new section is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. sec.27.518. Reconsideration of Level-of-Care Determination and Effective Dates. When a facility provides care for an individual for a period of time not covered by an effective level-of-care (LOC) determination or an incorrect LOC assignment, the Texas Department of Human Services (DHS) will reconsider the LOC effective dates. (1) Individuals eligible for reconsideration of LOC effective dates must have the following, prior to the submission of a request for reconsideration: (A) financial eligibility established; (B) admission to the Medicaid ICF-MR Vendor Payment System on DHS's Resident Transaction Notice form; and (C) a current LOC determination using DHS's Level-of-Care form. (2) Requests for reconsideration are limited to days that: (A) are not covered by a valid LOC determination, and (B) occur after January 1, 1993. For the period of January 1, 1986, through December 31, 1992, DHS will process claims for payment if received not later than August 31, 1993, according to the procedures in its policy letter dated February 22, 1993. (3) Requests for reconsideration for periods of time already denied an LOC determination by DHS's appeal process are not accepted. (4) The request for reconsideration must be stamped in by the ICF-MR Section, Texas Department of Mental Health and Mental Retardation (TXMHMR) before the 95th day after the last day services were provided without the individual having LOC effective dates. The ICF-MR Section, TXMHMR, will accept a request after the 95th day and up to one year following the last day that service was provided only when the facility experiences circumstances beyond its control. These circumstances must be documented in a letter to the manager of the DHS Institutional Program Section, who will determine whether the criteria stated in this section are met when submission of a request is received after the 95th day. (5) To be eligible for reconsideration of LOC determination, the following documentation must be submitted to the ICF-MR Section, TXMHMR: (A) a letter requesting reconsideration, signed by the Qualified Mental Retardation Professional; (B) a completed DHS Level-of-Care form, using Purpose Code E, that describes the individual's need for care during the period of time services were delivered and there was no valid LOC determination in effect. The requested effective dates must include the beginning and ending dates to be considered in the comment section of DHS's Level-of-Care form. A physician's signature is required to certify that the person required ICF-MR and/or ICF-MR/RC services during the time the person did not have a valid LOC determination. The physician must initial the requested effective dates on the DHS Level-of-Care form, thereby acknowledging the reconsideration request. (C) a copy of the following information from the client's record during the period for which reconsideration is requested: (i) all Interdisciplinary Team (IDT) meeting notes and recommendations, including the Individual Program Plan (IPP); (ii) all progress notes and program review records regarding objectives contained in the IPP that validate the provision of active treatment; and (iii) all orders by the physician. (6) The TXMHMR must notify the facility of the results of the reconsideration within 45 days. The facility may initiate an appeal, when reconsideration is denied, by submitting a request in writing as outlined in Chapter 79 of this title (relating to Legal Services). The facility must initiate the appeal within 10 workdays of receipt of notification that a reconsideration was denied. (7) The facility may neither charge nor take any other recourse against Medicaid recipients, their family members, or their representatives for any claim denied or reduced because of the facility's failure to comply with any DHS rule, regulation, or procedure pertaining to reimbursement. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 15, 1993. TRD-9321675 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: June 1, 1993 Proposal publication date: February 12, 1993 For further information, please call: (512) 450-3765 Chapter 67. Social Work Certification Certification Requirements The Texas Department of Human Services (DHS) adopts new sec.sec.67.101- 67.106, 67.201-67.208, 67.301-67.305, and 67. 401-67.410. New sec.sec.67.103, 67.106, 67.203, and 67.204 are adopted with changes to the proposed text as published in the December 25, 1992, issue of the Texas Register (17 TexReg 9096). The new sec.sec.67.101, 67.102, 67. 104, 67.105, 67.201, 67.202, 67.205- 67.208, 67.301-67.305, and 67.401-67.410 are adopted without changes and will not be republished. DHS is also adopting in this issue of the Texas Register the repeal of its previous social work certification rules, which were in Chapter 85. The justification for the new sections is to make DHS's social work certification program rules clearer and more concise, particularly the requirements for recognition as a clinical social worker and private practice practitioner. The new sections will function by making DHS's social work certification program rules clearer and more concise, particularly the requirements for recognition as a clinical social worker and private practice practitioner. The department received 12 written comments on the proposed new sections during the public comment period and one oral comment at a public hearing on January 6, 1993. The department received comments from these businesses and organizations: Texas Health Care Association, United Way of Texas, National Association of Social Workers/Texas, Catholic Health Facilities, and Tarrant County Mental Health/Mental Retardation Services. The following are comments, recommendations, and DHS responses. Comment concerning sec.67.102: A commenter suggested added wording to the definitions for "client", "contract termination, detrimental to a client" and "private practice." Response: DHS has determined that the intent of the added wording was already met in the existing wording. Comment concerning sec.67.102: A commenter suggested that the definition for "social work services" would require agencies to hire certified social workers and raise agency costs. Response: DHS has determined that the intent of the definition is to describe what social workers do and does not attempt to regulate people who may do something that a social worker does. The law only regulates individuals who hold themselves out to the public as a social worker. Comment concerning sec.67.103(8): A commenter suggested that language was needed to make it clear that only impaired services were being controlled. Response: DHS accepted this suggestion and added words to sec.67.103(8) to clarify that a social worker must not provide services while under the influence of alcohol or other mind-altering or mood-altering drugs that impair services. Comment concerning sec.67.103(9) and (10): A commenter suggested adding words to this section. Response: DHS determined that the intent of the added wording was covered in the proposed language. Comment concerning sec.67.106(a)(1)(B): One commenter opposed the three year experience requirement for advanced clinical practitioner (ACP) recognition. Response: DHS determined to continue the three year experience requirement as proposed. Comment concerning sec.67.106(a)(2): One commenter raised the issue that there is confusion regarding ACP recognition and the need to also have recognition for private practice. Response: Because the basic requirements are the same, DHS has agreed to make private practice recognition automatic with ACP and advanced practitioner (AP) recognition. Comment concerning sec.67.106(b)(2): Several commenters opposed the continuous supervision after AP recognition. Response: DHS accommodated the recommendation by automatically granting private practice recognition along with the AP. Comment concerning sec.67.106(b)(3): Three commenters inquired about a grandfather clause for those who have already met the AP requirements. Response: DHS accepted this recommendation and included a grandfathering clause that would allow those who have already met the AP requirements to qualify for AP recognition without examination for a period of six months from the effective date of the adopted rules. Comment concerning sec.67.203(a)(4)(E): One commenter objected to the requirement of supplying process notes on the grounds of confidentiality. Response: DHS has deleted this requirement. Comment concerning sec.67.204(a)(2) and (e)(3): Three commenters objected to the malpractice insurance requirements. Response: DHS has deleted this requirement. Comment concerning sec.67.203(b)(3): One commenter noted that it was not possible to obtain the required number of hours of supervision for private and specialty practice recognition under the provision of the rule. Response: DHS has increased the restriction of the number of hours to five hours per month. Comment concerning sec.67.204(e)(1): Several commenters questioned who could provide supervision. Response: DHS added the category of advanced practitioner to those who could provide supervision. Non-social work supervision was not included because this could be accommodated under the established variance procedures. The department made the following minor clarifications. sec.67.103(12)-Added the words "any violation by another professional to the appropriate licensing authority" to clarify reporting requirements when violations occur. sec.67.106(a)-Added an additional sentence that states, "Only recognized social workers who meet the minimum qualifications for examination for recognition as an ACP may use this title.", to clarify the requirements for recognition as an ACP. sec.67.106(c)-Deleted requirements associated with private practitioners to allow for the automatic granting of private practice recognition with the AP recognition. sec.67.204(a)(1)-Added that submission of a supervisory contract can be made within six months of the effective date of the adopted rules to clarify requirements for the supervisory contracts. sec.67.204(a)(4)(D)-Added that the use of a social work title and/or supervision by a certified social worker will be considered evidence of the required qualifying experience to clarify the educational requirements. sec.67.204(f)-Added paragraph (f) to clarify that supervision completed before the effective date of the new sections will be evaluated on the basis of the rules previously in effect. 40 TAC sec.sec.67.101-67.106 The new sections are adopted under the Human Resources Code, Title 2, Chapter 50, which authorizes the department to establish rules for social work certification. sec.67.103. Code of Ethics. A certificate holder must observe and comply with a code of ethics. Engaging in unethical conduct or conduct that discredits the profession of social work is grounds for disciplinary action. A social worker must: (1) provide services without regard for age, sex, race, color, religion, national origin, disability, sexual orientation, or political affiliation; (2) obtain informed, written consent from a client before releasing confidential information from the social work setting, except as required by law; (3) not engage in sexual acts with a client or with a person who has been a client within the preceding 12 months; (4) not provide professional social work services to a previous sexual partner; (5) provide a clear description of services, reports, fees, billing, and schedules to each client; (6) not give or receive any form of commission, rebate, or other remuneration for client referrals; (7) obtain informed, written consent before involving a client in research, and inform the client of the purpose of the research and its implications to the client; (8) not provide social work service while under the influence of alcohol or other mind-altering or mood-altering drugs that impair services; (9) advocate for clients and uphold a position of trust with the client by avoiding any act detrimental to a client; (10) make referrals appropriate to the client's needs; (11) not misrepresent qualifications, credentials, or services in any advertising, including notices of employment status; and (12) report any violation of the requirements in Chapter 50 of the Human Resources Code or as specified in this chapter, or any violation by another professional to the appropriate licensing authority. sec.67.106. Certificates of Recognition. (a) Advanced clinical practitioner (ACP). The Texas Department of Human Services (DHS) grants the title of ACP to an individual as recognition in the specialty practice of clinical social work. Only recognized social workers who meet the minimum qualifications for examination for recognition as an ACP may use this title. The minimum qualifications are: (1) certification as a certified social worker (CSW) in Texas; (2) three additional years of full-time clinical social work practice experience, as defined in sec.67.102 if this title (relating to Definitions), in an agency, institution, or other legal employment. This experience must have occurred after the qualification for certification as a certified social worker was met; (3) two of the three years of experience or 3,000 hours which must be under qualified supervision as specified in sec.67.204(e) of this title (relating to Supervision for Private and Specialty Practice Recognition); and (4) identification with and documentation of continued participation in the social work profession over the preceding three years. (b) Advanced practitioner (AP). DHS grants the title of AP to an individual as recognition in specialty practice of nonclinical social work. Only recognized social workers may use this title. (1) A person who meets the qualifications for advanced clinical practitioner in subsection (a) of this section in a nonclinical setting is eligible for recognition as an AP. (2) An individual who is qualified and applies for AP recognition may be granted recognition without examination and upon application within six months from the effective date of these rules (May 1, 1993). (c) Private practitioner. DHS grants the title of AP or ACP for independent or private practice. (1) A certificate holder must not engage in independent or private practice of social work without private practice recognition from DHS. Approval by another regulatory body in a related area of practice does not negate this requirement. (2) Provisional certification is not applicable for private practitioner recognition. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 8, 1993. TRD-9321423 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: May 1, 1993 Proposal publication date: December 25, 1992 For further information, please call: (512) 450-3765 Application Process 40 TAC sec.sec.67.201-67.208 The new sections are adopted under the Human Resources Code, Title 2, Chapter 50, which authorizes the department to establish rules for social work certification. sec.67.203. Qualifications for Certification or Recognition. The applicant must meet the following requirements for certification or recognition. (1) Age. An applicant must be at least 18 years of age. (2) Conduct. The applicant must not have committed any act contrary to the requirements in Chapter 50 of the Human Resources Code or as specified in this chapter that would be considered evidence that the applicant is not worthy of the public trust and confidence. (3) Education. The applicant's education must be documented by official college transcripts or a high school diploma or GED certificate. Educational requirements must be met by completion of educational programs accredited by the appropriate state educational agency. Social work degrees must be from social work programs accredited by the Council for Social Work Education. The Texas Department of Human Services (DHS) will designate an agency to provide verification of equivalency of degrees from foreign countries when appropriate. Social work educational programs in candidacy for accreditation by the Council for Social Work Education may request a waiver of these education requirements. The waiver must be renewed annually in August for the subsequent academic year and cannot be renewed more than three times. (4) Experience. (A) Experience required for certification as a social work associate or for recognition as a private practitioner, advanced clinical practitioner or advanced practitioner must be in the employment of an agency, institution, or other employer. Required documentation includes: (i) names and addresses of employers; (ii) dates of employment; (iii) job description; (iv) average number of hours of social work activity per week; and (v) annual evaluations. (B) Documentation of experience in private employment must include verification of the following: (i) the employer's administrative authority over the provision of social work services; (ii) the applicant's compensation for services paid by the employer; and (iii) the employment relationship as reflected in all advertising, informational material, and written policy. (C) DHS may credit part-time experience on a prorated basis. (D) Experience must be in a position with primary responsibility for providing social work services as defined in Chapter 50 of the Human Resources Code and as specified in this chapter and must have been satisfactorily performed. Use of a social work title and/or supervision by a certified social worker will be considered evidence of the qualifying experience. (E) The applicant must maintain and, upon request, provide to DHS documentation of employment contracts, pay vouchers, and/or supervisory evaluations. (5) References. An applicant must submit to DHS references from three individuals familiar with the applicant's professional qualifications. The references must attest to the applicant's worthiness of public trust and confidence. sec.67.204. Supervision for Private and Specialty Practice Recognition. (a) A certificate holder who plans to apply for specialty practice recognition must: (1) submit a supervisory contract to the Texas Department of Human Services (DHS) for approval 30 days before the beginning of supervision or within six months from the effective date of these rules (May 1, 1993); (2) submit annual supervisory evaluations to DHS at the end of each year of supervision or the end of the supervisory contract; (3) submit a notice of the end of the supervisory contract to DHS within 30 days of the end of supervision; and (4) notify DHS in writing before changing supervisors. (b) Individual supervision must: (1) consist of no less than 100 hours of face-to-face meetings between the supervisor and the supervised individual; (2) be completed over two consecutive years; and (3) be accomplished in one or two hour blocks not exceeding five hours per month. (c) Telephone supervision substituted for face-to-face supervision must include: (1) an initial face-to-face supervisory session of at least two hours; and (2) quarterly, face-to-face sessions of at least two hours. (d) Group supervision is subject to the following restrictions. (1) Group supervision may be substituted for a maximum of 30 hours of the required 100 hours of individual supervision. (2) Two hours of group supervision must be credited as one hour of individual face-to-face supervision. (3) A maximum of six supervised persons is allowed in one group supervision session. (4) Group supervision must be in blocks of not less than two hours in one group session and not exceeding eight actual hours per month. (e) There may be no more than three supervisors during the two years of required supervision. On written request, DHS will issue a letter of approval to a qualified supervisor. A supervisor must: (1) be certified as a certified social worker, advanced clinical practitioner, or advanced practitioner; (2) take professional responsibility for the clinical services provided within the supervisory contract; (3) have completed one graduate course in supervision, two years of clinical supervisory experience, or a supervisor's training course acceptable to DHS; and (5) demonstrate continuing participation in and identification with the social work profession. (f) Supervision completed before the effective date of these rules (May 1, 1993) will be evaluated on the basis of the rules previously in effect. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 8, 1993. TRD-9321427 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: May 1, 1993 Proposal publication date: December 25, 1992 For further information, please call: (512) 450-3765 Certificate Expiration and Renewal 40 TAC sec.sec.67.301-67.305 The new sections are adopted under the Human Resources Code, Title 2, Chapter 50, which authorizes the department to establish rules for social work certification. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 8, 1993. TRD-9321424 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: May 1, 1993 Proposal publication date: December 25, 1992 For further information, please call: (512) 450-3765 Administrative Actions 40 TAC sec.sec.67.401-67. 410 The new sections are adopted under the Human Resources Code, Title 2, Chapter 50, which authorizes the department to establish rules for social work certification. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 8, 1993. TRD-9321426 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: May 1, 1993 Proposal publication date: December 25, 1992 For further information, please call: (512) 450-3765 Chapter 85. General Licensing Procedures Subchapter III. Social Work Certification 40 TAC sec.sec.85.6001, 85.6003-85.6016, 85.6018-85.6029 The Texas Department of Human Services (DHS) adopts the repeal of sec.sec.85.6001, 85.6003-85.6016, and 85.6018-85.6029, without changes to the proposed text as published in the December 25, 1992, issue of the Texas Register (17 TexReg 9096). The justification for the repeals, which constitute all of the remaining sections in Chapter 85, is to enable DHS to propose new sections to make DHS's social work certification program rules clearer and more concise, particularly the requirements for recognition as a clinical social worker and private practice practitioner. DHS is adopting new sections in new Chapter 67, in this issue of the Texas Register. The repeals will function by enabling DHS to adopt new rules in Chapter 67 that will provide consumers and practitioners a clearer, more concise statement of social work certification requirements. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Title 2, Chapter 50, which authorizes the department to establish rules for social work certification. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 8, 1993. TRD-9321425 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: May 1, 1993 Proposal publication date: December 25, 1992 For further information, please call: (512) 450-3765