Header:
TEXAS ADMINISTRATIVE CODE
TITLE 40. SOCIAL SERVICES AND ASSISTANCE
PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES
CHAPTER 92. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES
SUBCHAPTER C. STANDARDS FOR LICENSURE
Date:
03/17/2014
Document:
§ 92.41. Standards for Type A and Type B Assisted Living Facilities
(a) Employees.
(1) Manager. Each facility must designate, in writing, a manager to have authority over the operation.
(A) Qualifications. In small facilities, the manager must have proof of graduation from an accredited high school or certification of equivalency of graduation. In large facilities, a manager must have: (i) an associate's degree in nursing, health care management, or a related field; (ii) a bachelor's degree; or (iii) proof of graduation from an accredited high school or certification of equivalency of graduation and at least one year of experience working in management or in health care industry management.
(B) Training in management of assisted living facilities. After August 1, 2000, a manager must have completed at least one educational course on the management of assisted living facilities, which must include information on the assisted living standards; resident characteristics (including dementia), resident assessment and skills working with residents; basic principles of management; food and nutrition services; federal laws, with an emphasis on the Ameri-cans with Disability Act's accessibility requirements; community resources; ethics, and financial management. (i) The course must be at least 24 hours in length.
(I) Eight hours of training on the assisted living standards must be completed within the first three months of em-ployment.
(II) The 24-hour training requirement may not be met through in-services at the facility, but may be met through structured, formalized classes, correspondence courses, training videos, distance learning programs, or off-site training courses. All training must be provided or produced by academic institutions, assisted living corporations, or recognized state or national organizations or associations. Subject matter that deals with the internal affairs of an organization will not qualify for credit.
(III) Evidence of training must be on file at the facility and must contain documentation of content, hours, dates, and provider. (ii) Managers hired after August 1, 2000, who can show documentation of a previously completed comparable course of study are exempt from the training requirements. (iii) Managers hired after August 1, 2000, must complete the course by the first anniversary of employment as manager. (iv) An assisted living manager who was employed by a licensed assisted living facility on August 1, 2000, is exempt from the training requirement. An as-sisted living manager who was employed by a licensed assisted living facility as the manager before August 1, 2000, and changes employment to another licensed assisted living facility as the manager, with a break in employment of no longer than 30 days, is also exempt from the training requirement.
(C) Continuing education. All managers must show evidence of 12 hours of annual continuing education. This re-quirement will be met during the first year of employment by the 24-hour assisted living management course. The annual continuing education requirement must include at least two of the following areas: (i) resident and provider rights and responsibilities, abuse/neglect, and confidentiality; (ii) basic principles of management; (iii) skills for working with residents, families, and other professional service providers; (iv) resident characteristics and needs; (v) com-munity resources; (vi) accounting and budgeting; (vii) basic emergency first aid; or (viii) federal laws, such as Americans with Disabilities Act, Civil Rights Act of 1991, the Rehabilitation Act of 1993, Family and Medical Leave Act of 1993, and the Fair Housing Act.
(D) Manager's responsibilities. The manager must be on duty 40 hours per week and may manage only one facility, except for managers of small Type A facilities, who may have responsibility for no more than 16 residents in no more than four facilities. The managers of small Type A facilities must be available by telephone or pager when conducting facility business off-site.
(E) Manager's absence. An employee competent and authorized to act in the absence of the manager must be designated in writing.
(2) Attendants. Full-time facility attendants must be at least 18 years old or a high-school graduate.
(A) An attendant must be in the facility at all times when residents are in the facility.
(B) Attendants are not precluded from performing other functions as required by the assisted living facility.
(3) Staffing.
(A) A facility must develop and implement staffing policies, which require staffing ratios based upon the needs of the residents, as identified in their service plans.
(B) Prior to admission, a facility must disclose, to prospective residents and their families, the facility's normal 24-hour staffing pattern and post it monthly in accordance with § 92.127 of this title (relating to Required Postings).
(C) A facility must have sufficient staff to: (i) maintain order, safety, and cleanliness; (ii) assist with medication regimens; (iii) prepare and service meals that meet the daily nutritional and special dietary needs of each resident, in accordance with each resident's service plan; (iv) assist with laundry; (v) assure that each resident receives the kind and amount of supervision and care required to meet his basic needs; and (vi) ensure safe evacuation of the facility in the event of an emergency.
(D) A facility must meet the staffing requirements described in this subparagraph. (i) Type A facility: Night shift staff in a small facility must be immediately available. In a large facility, the staff must be immediately available and awake. (ii) Type B facility: Night shift staff must be immediately available and awake, regardless of the number of licensed beds.
(4) Staff training. The facility must document that staff members are competent to provide personal care before assuming responsibilities and have received the following training.
(A) All staff members must complete four hours of orientation before assuming any job responsibilities. Training must cover, at a minimum, the following topics: (i) reporting of abuse and neglect; (ii) confidentiality of resident in-formation; (iii) universal precautions; (iv) conditions about which they should notify the facility manager; (v) residents' rights; and (vi) emergency and evacuation procedures.
(B) Attendants must complete 16 hours of on-the-job supervision and training within the first 16 hours of em-ployment following orientation. Training must include: (i) in Type A and B facilities, providing assistance with the activ-ities of daily living; (ii) resident's health conditions and how they may affect provision of tasks; (iii) safety measures to prevent accidents and injuries; (iv) emergency first aid procedures, such as the Heimlich maneuver and actions to take when a resident falls, suffers a laceration, or experiences a sudden change in physical and/or mental status; (v) man-aging disruptive behavior; (vi) behavior management, for example, prevention of aggressive behavior and de-escalation techniques, practices to decrease the frequency of the use of restraint, and alternatives to restraints; and (vii) fall prevention.
(C) Direct care staff must complete six documented hours of education annually, based on each employee's hire date. Staff must complete one hour of annual training in fall prevention and one hour of training in behavior man-agement, for example, prevention of aggressive behavior and de-escalation techniques, practices to decrease the fre-quency of the use of restraint, and alternatives to restraints. Training for these subjects must be competency-based. Subject matter must address the unique needs of the facility. Suggested topics include: (i) promoting resident dignity, independence, individuality, privacy, and choice; (ii) resident rights and principles of self-determination; (iii) commu-nication techniques for working with residents with hearing, visual, or cognitive impairment; (iv) communicating with families and other persons interested in the resident; (v) common physical, psychological, social, and emotional condi-tions and how these conditions affect residents' care; (vi) essential facts about common physical and mental disorders, for example, arthritis, cancer, dementia, depression, heart and lung diseases, sensory problems, or stroke; (vii) cardi-opulmonary resuscitation; (viii) common medications and side effects, including psychotropic medications, when ap-propriate; (ix) understanding mental illness; (x) conflict resolution and de-escalation techniques; and (xi) information regarding community resources.
(D) Facilities that employ licensed nurses, certified nurse aides, or certified medication aides must provide annual in-service training, appropriate to their job responsibilities, from one or more of the following areas: (i) communication techniques and skills useful when providing geriatric care (skills for communicating with the hearing impaired, visually impaired and cognitively impaired; therapeutic touch; recognizing communication that indicates psychological abuse); (ii) assessment and interventions related to the common physical and psychological changes of aging for each body system; (iii) geriatric pharmacology, including treatment for pain management, food and drug interactions, and sleep disorders; (iv) common emergencies of geriatric residents and how to prevent them, for example falls, choking on food or medicines, injuries from restraint use; recognizing sudden changes in physical condition, such as stroke, heart attack, acute abdomen, acute glaucoma; and obtaining emergency treatment; (v) common mental disorders with related nursing implications; and (vi) ethical and legal issues regarding advance directives, abuse and neglect, guardianship, and confidentiality.
(b) Social services. The facility must provide an activity and/or social program at least weekly for the residents.
(c) Resident assessment. Within 14 days of admission, a resident comprehensive assessment and an individual service plan for providing care, which is based on the comprehensive assessment, must be completed. The compre-hensive assessment must be completed by the appropriate staff and documented on a form developed by the facility. When a facility is unable to obtain information required for the comprehensive assessment, the facility should docu-ment its attempts to obtain the information.
(1) The comprehensive assessment must include the following items:
(A) the location from which the resident was admitted;
(B) primary language;
(C) sleep-cycle issues;
(D) behavioral symptoms;
(E) psychosocial issues (i.e., a psychosocial functioning assessment that includes an assessment of mental or psy-chosocial adjustment difficulty; a screening for signs of depression, such as withdrawal, anger or sad mood; assessment of the resident's level of anxiety; and determining if the resident has a history of psychiatric diagnosis that required in-patient treatment);
(F) Alzheimer's/dementia history;
(G) activities of daily living patterns (i.e., wakened to toilet all or most nights, bathed in morning/night, shower or bath);
(H) involvement patterns and preferred activity pursuits (i.e., daily contact with relatives, friends, usually attended religious services, involved in group activities, preferred activity settings, general activity preferences);
(I) cognitive skills for daily decision-making (independent, modified independence, moderately impaired, severely impaired);
(J) communication (ability to communicate with others, communication devices);
(K) physical functioning (transfer status; ambulation status; toilet use; personal hygiene; ability to dress, feed and groom self);
(L) continence status;
(M) nutritional status (weight changes, nutritional problems or approaches);
(N) oral/dental status;
(O) diagnoses;
(P) medications (administered, supervised, self-administers);
(Q) health conditions and possible medication side effects;
(R) special treatments and procedures;
(S) hospital admissions within the past six months or since last assessment; and
(T) preventive health needs (i.e., blood pressure monitoring, hearing-vision assessment).
(2) The service plan must be approved and signed by the resident or a person responsible for the resident's health care decisions. The facility must provide care according to the service plan. The service plan must be updated annually and upon a significant change in condition, based upon an assessment of the resident.
(3) For respite clients, the facility may keep a service plan for six months from the date on which it is developed. During that period, the facility may admit the individual as frequently as needed.
(4) Emergency admissions must be assessed and a service plan developed for them.
(d) Resident policies.
(1) Before admitting a resident, facility staff must explain and provide a copy of the disclosure statement to the resident, family, or responsible party. An assisted living facility that provides brain injury rehabilitation services must attach to its disclosure statement a specific statement that licensure as an assisted living facility does not indicate state review, approval, or endorsement of the facility's rehabilitative services. The facility must document receipt of the disclosure statement.
(2) The facility must provide residents with a copy of the Resident Bill of Rights.
(3) When a resident is admitted, the facility must provide to the resident's immediate family, and document the family's receipt of, the DADS telephone hotline number to report suspected abuse, neglect, or exploitation, as refer-enced in § 92.102 of this chapter (relating to Abuse, Neglect, or Exploitation Reportable to DADS).
(4) The facility must have written policies regarding residents accepted, services provided, charges, refunds, re-sponsibilities of facility and residents, privileges of residents, and other rules and regulations.
(5) Each facility must make available copies of the resident policies to staff and to residents or residents' respon-sible parties at time of admission. Documented notification of any changes to the policies must occur before the effec-tive date of the changes.
(6) Before or upon admission of a resident, a facility must notify the resident and, if applicable, the resident's le-gally authorized representative, of DADS rules and the facility's policies related to restraint and seclusion.
(e) Admission policies.
(1) A facility must not admit or retain a resident whose needs cannot be met by the facility or who cannot secure the necessary services from an outside resource. As part of the facility's general supervision and oversight of the physical and mental well-being of its residents, the facility remains responsible for all care provided at the facility. If the individual is appropriate for placement in a facility, then the decision that additional services are necessary and can be secured is the responsibility of facility management with written concurrence of the resident, resident's attending physician, or legal representative. Regardless of the possibility of "aging in place" or securing additional services, the facility must meet all Life Safety Code requirements based on each resident's evacuation capabilities, except as provided in subsection (f) of this section.
(2) There must be a written admission agreement between the facility and the resident. The agreement must specify such details as services to be provided and the charges for the services. If the facility provides services and supplies that could be a Medicare benefit, the facility must provide the resident a statement that such services and supplies could be a Medicare benefit.
(3) A facility must share a copy of the facility disclosure statement, rate schedule, and individual resident service plan with outside resources that provide any additional services to a resident. Outside resources must provide facilities with a copy of their resident care plans and must document, at the facility, any services provided, on the day provided.
(4) Each resident must have a health examination by a physician performed within 30 days before admission or 14 days after admission, unless a transferring hospital or facility has a physical examination in the medical record.
(5) The assisted living facility must secure at the time of admission of a resident the following identifying infor-mation:
(A) full name of resident;
(B) social security number;
(C) usual residence (where resident lived before admission);
(D) sex;
(E) marital status;
(F) date of birth;
(G) place of birth;
(H) usual occupation (during most of working life);
(I) family, other persons named by the resident, and physician for emergency notification;
(J) pharmacy preference; and
(K) Medicaid/Medicare number, if available.
(f) Inappropriate placement in Type A or Type B facilities.
(1) DADS or a facility may determine that a resident is inappropriately placed in the facility if a resident experi-ences a change of condition but continues to meet the facility evacuation criteria.
(A) If DADS determines the resident is inappropriately placed and the facility is willing to retain the resident, the facility is not required to discharge the resident if, within 10 working days after receiving the Statement of Licensing Violations and Plan of Correction, Form 3724, and the Report of Contact, Form 3614-A, from DADS, the facility submits the following to the DADS regional office: (i) Physician's Assessment, Form 1126, indicating that the resident is appro-priately placed and describing the resident's medical conditions and related nursing needs, ambulatory and transfer abilities, and mental status; (ii) Resident's Request to Remain in Facility, Form 1125, indicating that:
(I) the resident wants to remain at the facility; or
(II) if the resident lacks capacity to provide a written statement, the resident's family member or legally authorized representative wants the resident to remain at the facility; and (iii) Facility Request, Form 1124, indicating that the facility agrees that the resident may remain at the facility.
(B) If the facility initiates the request for an inappropriately placed resident to remain in the facility, the facility must complete and date the forms described in subparagraph (A) of this paragraph and submit them to the DADS re-gional office within 10 working days after the date the facility determines the resident is inappropriately placed, as indicated on the DADS prescribed forms.
(2) DADS or a facility may determine that a resident is inappropriately placed in the facility if the facility does not meet all requirements referenced in § 92.3 of this chapter (relating to Types of Assisted Living Facilities) for the evac-uation of a designated resident.
(A) If, during a site visit, DADS determines that a resident is inappropriately placed at the facility and the facility is willing to retain the resident, the facility must request an evacuation waiver as described in subparagraph (C) of this paragraph to the DADS regional office within 10 working days after the date the facility receives the Statement of Li-censing Violations and Plan of Correction, Form 372, and the Report of Contact, Form 3614-A. If the facility is not willing to retain the resident, the facility must discharge the resident within 30 days after receiving the Statement of Licensing Violations and Plan of Correction and the Report of Contact.
(B) If the facility initiates the request for a resident to remain in the facility, the facility must request an evacuation waiver as described in subparagraph (C) of this paragraph from the DADS regional office within 10 working days after the date the facility determines the resident is inappropriately placed, as indicated on the DADS prescribed forms.
(C) To request an evacuation waiver for an inappropriately placed resident, a facility must submit to the DADS re-gional office: (i) Physician's Assessment, Form 1126, indicating that the resident is appropriately placed and describing the resident's medical conditions and related nursing needs, ambulatory and transfer abilities, and mental status; (ii) Resident's Request to Remain in Facility, Form 1125, indicating that:
(I) the resident wants to remain at the facility; or
(II) if the resident lacks capacity to provide a written statement, the resident's family member or legally authorized representative wants the resident to remain at the facility; (iii) Facility Request, Form 1124, indicating that the facility agrees that the resident may remain at the facility; (iv) a detailed emergency plan that explains how the facility will meet the evacuation needs of the resident, including:
(I) the specific staff positions that will be on duty to assist with evacuation and their shift times;
(II) specific staff positions that will be on duty and awake at night; and
(III) specific staff training that relates to resident evacuation; (v) a copy of an accurate facility floor plan, to scale, that labels all rooms by use and indicates the specific resident's room; (vi) a copy of the facility's emergency evacuation plan; (vii) a copy of the facility fire drill records for the last 12 months; (viii) a copy of a completed Fire Marshal/State Fire Marshal Notification, Form 1127, signed by the fire authority having jurisdiction (either the local Fire Marshal or State Fire Marshal) as an acknowledgement that the fire authority has been notified that the resident's evacuation capability has changed; (ix) a copy of a completed Fire Suppression Authority Notification, Form 1129, signed by the local fire suppression authority as an acknowledgement that the fire suppression authority has been notified that the resident's evacuation capability has changed; (x) a copy of the resident's most recent comprehensive assessment that addresses the areas required by subsection (c) of this section and that was completed within 60 days, based on the date stated on the evacuation waiver form submitted to DADS; (xi) the resident's service plan that addresses all aspects of the resident's care, particularly those areas identified by DADS, including:
(I) the resident's medical condition and related nursing needs;
(II) hospitalizations within 60 days, based on the date stated on the evacuation waiver form submitted to DADS;
(III) any significant change in condition in the last 60 days, based on the date stated on the evacuation waiver form submitted to DADS;
(IV) specific staffing needs; and
(V) services that are provided by an outside provider; (xii) any other information that relates to the required fire safety features of the facility that will ensure the evacuation capability of any resident; and (xiii) service plans of other residents, if requested by DADS.
(D) A facility must meet the following criteria to receive a waiver from DADS: (i) The emergency plan submitted in accordance with subparagraph (C)(iv) of this paragraph must ensure that:
(I) staff is adequately trained;
(II) a sufficient number of staff is on all shifts to move all residents to a place of safety;
(III) residents will be moved to appropriate locations, given health and safety issues;
(IV) all possible locations of fire origin areas and the necessity for full evacuation of the building are addressed;
(V) the fire alarm signal is adequate;
(VI) there is an effective method for warning residents and staff during a malfunction of the building fire alarm system;
(VII) there is a method to effectively communicate the actual location of the fire; and
(VIII) the plan satisfies any other safety concerns that could have an effect on the residents' safety in the event of a fire; and (ii) the emergency plan will not have an adverse effect on other residents of the facility who have waivers of evacuation or who have special needs that require staff assistance.
(E) DADS reviews the documentation submitted under this subsection and notifies the facility in writing of its de-termination to grant or deny the waiver within 10 working days after the date the request is received in the DADS re-gional office.
(F) Upon notification that DADS has granted the evacuation waiver, the facility must immediately initiate all provi-sions of the proposed emergency plan. If the facility does not follow the emergency plan, and there are health and safety concerns that are not addressed, DADS may determine that there is an immediate threat to the health or safety of a resident.
(G) DADS reviews a waiver of evacuation during the facility's annual renewal licensing inspection.
(3) If a DADS surveyor determines that a resident is inappropriately placed at a facility and the facility either agrees with the determination or fails to obtain the written statements or waiver required in this subsection, the facility must discharge the resident.
(A) The resident is allowed 30 days after the date of notice of discharge to move from the facility.
(B) A discharge required under this subsection must be made notwithstanding: (i) any other law, including any law relating to the rights of residents and any obligations imposed under the Property Code; and (ii) the terms of any con-tract.
(4) If a facility is required to discharge the resident because the facility has not submitted the written statements required by paragraph (1) of this subsection to the DADS regional office, or DADS denies the waiver as described in paragraph (2) of this subsection, DADS may:
(A) assess an administrative penalty if DADS determines the facility has intentionally or repeatedly disregarded the waiver process because the resident is still residing in the facility when DADS conducts a future onsite visit; or
(B) seek other sanctions, including an emergency suspension or closing order, against the facility under Texas Health and Safety Code Chapter 247, Subchapter C (relating to General Enforcement), if DADS determines there is a significant risk and immediate threat to the health and safety of a resident of the facility.
(5) The facility's disclosure statement must notify the resident and resident's legally authorized representative of the waiver process described in this section and the facility's policies and procedures for aging in place.
(6) After the first year of employment and no later than the anniversary date of the facility manager's hire date, the manager must show evidence of annual completion of DADS training on aging in place and retaliation.
(g) Advance directives.
(1) The facility must maintain written policies regarding the implementation of advance directives. The policies must include a clear and precise statement of any procedure the facility is unwilling or unable to provide or withhold in accordance with an advance directive.
(2) The facility must provide written notice of these policies to residents at the time they are admitted to receive services from the facility.
(A) If, at the time notice is to be provided, the resident is incompetent or otherwise incapacitated and unable to receive the notice, the facility must provide the written notice, in the following order of preference, to: (i) the resi-dent's legal guardian; (ii) a person responsible for the resident's health care decisions; (iii) the resident's spouse; (iv) the resident's adult child; (v) the resident's parents; or (vi) the person admitting the resident.
(B) If the facility is unable, after diligent search, to locate an individual listed under subparagraph (A) of this para-graph, the facility is not required to give notice.
(3) If a resident who was incompetent or otherwise incapacitated and unable to receive notice regarding the facil-ity's advance directives policies later becomes able to receive the notice, the facility must provide the written notice at the time the resident becomes able to receive the notice.
(4) Failure to inform the resident of facility policies regarding the implementation of advance directives will result in an administrative penalty of $ 500.
(A) Facilities will receive written notice of the recommendation for an administrative penalty.
(B) Within 20 days after the date on which written notice is sent to a facility, the facility must give written consent to the penalty or make written request for a hearing to the Texas Health and Human Services Commission.
(C) Hearings will be held in accordance with the formal hearing procedures at 1 TAC Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedures Act).
(h) Resident records.
(1) Records that pertain to residents must be treated as confidential and properly safeguarded from unauthorized use, loss, or destruction.
(2) Resident records must contain:
(A) information contained in the facility's standard and customary admission form;
(B) a record of the resident's assessments;
(C) the resident's service plan;
(D) physician's orders, if any;
(E) any advance directives;
(F) documentation of a health examination by a physician performed within 30 days before admission or 14 days after admission, unless a transferring hospital or facility has a physical examination in the medical record. Christian Scientists are excluded from this requirement; and
(G) documentation by health care professionals of any services delivered in accordance with the licensing, certifi-cation, or other regulatory standards applicable to the health care professional under law.
(3) Records must be available to residents, their legal representatives, and DADS staff.
(i) Personnel records. An assisted living facility must keep current and complete personnel records on a facility employee for review by DADS staff including:
(1) documentation that the facility performed a criminal history check;
(2) an annual employee misconduct registry check;
(3) an annual nurse aide registry check;
(4) documentation of initial tuberculosis screenings referenced in subsection (n) of this section;
(5) documentation of the employee's compliance with or exemption from the facility vaccination policy referenced in subsection (r) of this section; and
(6) the signed statement from the employee referenced in § 92.102 of this chapter acknowledging that the em-ployee may be criminally liable for the failure to report abuse, neglect and exploitation.
(j) Medications.
(1) Administration. Medications must be administered according to physician's orders.
(A) Residents who choose not to or cannot self-administer their medications must have their medications admin-istered by a person who: (i) holds a current license under state law that authorizes the licensee to administer medica-tion; or (ii) holds a current medication aide permit and acts under the authority of a person who holds a current nurs-ing license under state law that authorizes the licensee to administer medication. A medication aide must function under the direct supervision of a licensed nurse on duty or on call by the facility. (iii) is an employee of the facility to whom the administration of medication has been delegated by a registered nurse, who has trained them to administer medications or verified their training. The delegation of the administration of medication is governed by 22 TAC Chapter 225 (relating to RN Delegation to Unlicensed Personnel and Tasks Not Requiring Delegation in Independent Living Environments for Clients with Stable and Predictable Conditions), which implements the Nursing Practice Act.
(B) All resident's prescribed medication must be dispensed through a pharmacy or by the resident's treating phy-sician 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 must be listed on an individual resident's medication profile record. The recorded information obtained from the prescription label must include, but is not limited to, the medication: (i) name; (ii) strength; (iii) dosage; (iv) amount received; (v) directions for use; (vi) route of administration; (vii) prescription num-ber; (viii) pharmacy name; and (ix) 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 without assistance 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 an individual resident's medication profile record the medication: (i) name; (ii) strength; (iii) dosage; (iv) amount received; (v) directions for use; (vi) route of administration; (vii) prescription number; (viii) pharmacy name; and (ix) 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 must 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. The facility must keep a written record of counseling.
(B) Residents who choose to keep their medications locked in the central medication storage area may be per-mitted entrance or access to the area for the purpose of self-administering their own medication/treatment regimen. A facility staff member must 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 must be kept when the resident does not receive or take his/her medications/treatments as prescribed. The documentation must 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 assisted living facility.
(5) Storage.
(A) The facility must provide a locked area for all medications. Examples of areas include, but are not limited to: (i) central storage area; (ii) medication cart; and (iii) resident room.
(B) Each resident's medication must be stored separately from other resident's medications within the storage area.
(C) A refrigerator must have a designated and locked storage area for medications that require refrigeration, un-less it is inside a locked medication room.
(D) Poisonous substances and medications labeled for "external use only" must be stored separately within the locked medication area.
(E) If facilities store controlled drugs, facility policies and procedures must address the prevention of the diversion of the controlled drugs.
(6) Disposal.
(A) Medications no longer being used by the resident for the following reasons are to be kept separate from cur-rent 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 that remain after a resident is deceased; or (iii) medications that have passed the expiration date.
(B) Needles and hypodermic syringes with needles attached must be disposed as required by 25 TAC §§ 1.131 - 1.137 (relating to Definition, Treatment, and Disposition 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.
(k) Accident, injury, or acute illness.
(1) In the event of accident or injury that requires emergency medical, dental or nursing care, or in the event of apparent death, the assisted living facility will:
(A) make arrangements for emergency care and/or transfer to an appropriate place for treatment, such as a phy-sician's office, clinic, or hospital;
(B) immediately notify the resident's physician and next of kin, responsible party, or agency who placed the resi-dent in the facility; and
(C) describe and document the injury, accident, or illness on a separate report. The report must contain a state-ment of final disposition and be maintained on file.
(2) The facility must 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 illness or injury may have those services delivered by persons qualified to deliver the necessary service.
(l) Resident finances. The assisted living facility must keep a simple financial record on all charges billed to the resident for care and these records must be available to DADS. If the resident entrusts the handling of any personal finances to the assisted living facility, a simple financial record must be maintained to document accountability for receipts and expenditures, and these records must be available to DADS. Receipts for payments from residents or family members must be issued upon request.
(m) Food and nutrition services.
(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 must 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 must be specifically ap-proved by DADS.
(3) Menus must be planned one week in advance and must be followed. Variations from the posted menus must be documented. Menus must be prepared to provide a balanced and nutritious diet, such as that recommended by the National Food and Nutrition Board. Food must be palatable and varied. Records of menus as served must be filed and maintained for 30 days after the date of serving.
(4) Therapeutic diets as ordered by the resident's physician must be provided according to the service plan. Ther-apeutic diets that cannot customarily be prepared by a layperson must be calculated by a qualified dietician. Thera-peutic diets that can customarily be prepared by a person in a family setting may be served by the assisted living facility.
(5) Supplies of staple foods for a minimum of a four-day period and perishable foods for a minimum of a one-day period must be maintained on the premises.
(6) Food must 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 must be kept sealed, and labeled. Food subject to spoilage must 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, must be stored at 45 degrees Fahrenheit or below. Hot food must be kept at 140 degrees Fahrenheit or above during preparation and serving. Food that is reheated must be heated to a minimum of 165 degrees Fahrenheit.
(9) Freezers must be kept at a temperature of 0 degrees Fahrenheit or below and refrigerators must be 41 de-grees Fahrenheit or below. Thermometers must be placed in the warmest area of the refrigerator and freezer to as-sure proper temperature.
(10) Food must be prepared and served with the least possible manual contact, with suitable utensils, and on sur-faces that have been cleaned, rinsed, and sanitized before use to prevent cross-contamination.
(11) Facilities must prepare food in accordance with established food preparation practices and safety techniques.
(12) A food service employee, while infected with a communicable disease 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, must not work in the food service area in any capacity in which there is a likelihood of such per-son contaminating food or food-contact surfaces with pathogenic organisms or transmitting disease to other persons.
(13) Effective hair restraints must be worn to prevent the contamination of food.
(14) Tobacco products must not be used in the food preparation and service areas.
(15) Kitchen employees must wash their hands before returning to work after using the lavatory.
(16) Dishwashing chemicals used in the kitchen may be stored in plastic containers if they are the original con-tainers in which the manufacturer packaged the chemicals.
(17) Sanitary dishwashing procedures and techniques must be followed.
(18) Facilities that house 17 or more residents must comply with 25 TAC §§ 229.161 - 229.171 and §§ 229.173 - 229.175 (relating to Texas Food Establishment rules) and local health ordinances or requirements must be observed in the storage, preparation, and distribution of food; in the cleaning of dishes, equipment, and work area; and in the storage and disposal of waste.
(n) 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 must comply with departmental rules regarding special waste in 25 TAC §§ 1.131 - 1.137.
(3) The name of any resident of a facility with a reportable disease as specified in 25 TAC §§ 97.1 - 97.13 (relating to Control of Communicable Diseases) must be reported immediately to the city health officer, county health officer, or health unit director having jurisdiction, and appropriate infection control procedures must 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 em-ployees.
(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.
(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 for TB within two weeks of employment and annually, according to Centers for Disease Control and Prevention (CDC) screening guidelines. All persons who provide services under an outside resource contract must, upon request of the facility, provide evidence of compliance with this requirement.
(D) All residents should be screened upon admission and after exposure to TB, in accordance with the attending physician's recommendations and CDC guidelines.
(5) Personnel must handle, store, process, and transport linens so as to prevent the spread of infection.
(6) Universal precautions must be used in the care of all residents.
(o) Access to residents. The facility must allow an employee of DADS or an employee of a local authority into the facility as necessary to provide services to a resident.
(p) Restraints. All restraints for purposes of behavioral management, staff convenience, or resident discipline are prohibited. Seclusion is prohibited.
(1) As provided in § 92.125(a)(3) of this chapter (relating to Resident's Bill of Rights and Provider Bill of Rights), a facility may use physical or chemical restraints only:
(A) if the use is authorized in writing by a physician and specifies: (i) the circumstances under which a restraint may be used; and (ii) the duration for which the restraint may be used; or
(B) if the use is necessary in an emergency to protect the resident or others from injury.
(2) A behavioral emergency is a situation in which severely aggressive, destructive, violent, or self-injurious be-havior exhibited by a resident:
(A) poses a substantial risk of imminent probable death of, or substantial bodily harm to, the resident or others;
(B) has not abated in response to attempted preventive de-escalatory or redirection techniques;
(C) could not reasonably have been anticipated; and
(D) is not addressed in the resident's service plan.
(3) Except in a behavioral emergency, a restraint must be administered only by qualified medical personnel.
(4) A restraint must not be administered under any circumstance if it:
(A) obstructs the resident's airway, including a procedure that places anything in, on, or over the resident's mouth or nose;
(B) impairs the resident's breathing by putting pressure on the resident's torso;
(C) interferes with the resident's ability to communicate; or
(D) places the resident in a prone or supine position.
(5) If a facility uses a restraint hold in a circumstance described in paragraph (2) of this subsection, the facility must use an acceptable restraint hold.
(A) An acceptable restraint hold is a hold in which the individual's limbs are held close to the body to limit or pre-vent movement and that does not violate the provisions of paragraph (4) of this subsection.
(B) After the use of restraint, the facility must: (i) with the resident's consent, make an appointment with the res-ident's physician no later than the end of the first working day after the use of restraint and document in the resident's record that the appointment was made; or (ii) if the resident refuses to see the physician, document the refusal in the resident's record.
(C) As soon as possible but no later than 24 hours after the use of restraint, the facility must notify one of the fol-lowing persons, if there is such a person, that the resident has been restrained: (i) the resident's legally authorized representative; or (ii) an individual actively involved in the resident's care, unless the release of this information would violate other law.
(D) If, under the Health Insurance Portability and Accountability Act, the facility is a "covered entity," as defined in 45 Code of Federal Regulations (CFR) § 160.103, any notification provided under subparagraph (C)(ii) of this paragraph must be to a person to whom the facility is allowed to release information under 45 CFR § 164.510.
(6) In order to decrease the frequency of the use of restraint, facility staff must be aware of and adhere to the findings of the resident assessment required in subsection (c) of this section for each resident.
(7) A facility may adopt policies that allow less use of restraint than allowed by the rules of this chapter.
(8) A facility must not discharge or otherwise retaliate against:
(A) an employee, resident, or other person because the employee, resident, or other person files a complaint, presents a grievance, or otherwise provides in good faith information relating to the misuse of restraint or seclusion at the facility; or
(B) a resident because someone on behalf of the resident files a complaint, presents a grievance, or otherwise provides in good faith information relating to the misuse of restraint or seclusion at the facility.
(q) Accreditation status. If a license holder uses an on-site accreditation survey by an accreditation commission instead of a licensing survey by DADS, as provided in § 92.11(c)(2) and § 92.15(j) of this chapter (relating to Criteria for Licensing; and Renewal Procedures and Qualifications), the license holder must provide written notification to DADS within five working days after the license holder receives a notice of change in accreditation status from the accredita-tion commission. The license holder must include a copy of the notice of change with its written notification to DADS.
(r) Vaccine Preventable Diseases.
(1) Effective September 1, 2012, a facility must develop and implement a policy to protect a resident from vaccine preventable diseases in accordance with Texas Health and Safety Code, Chapter 224.
(2) The policy must:
(A) require an employee or a contractor providing direct care to a resident to receive vaccines for the vaccine preventable diseases specified by the facility based on the level of risk the employee or contractor presents to resi-dents by the employee's or contractor's routine and direct exposure to residents;
(B) specify the vaccines an employee or contractor is required to receive in accordance with paragraph (1) of this subsection;
(C) include procedures for the facility to verify that an employee or contractor has complied with the policy;
(D) include procedures for the facility to exempt an employee or contractor from the required vaccines for the medical conditions identified as contraindications or precautions by the Centers for Disease Control and Prevention;
(E) for an employee or contractor who is exempt from the required vaccines, include procedures the employee or contractor must follow to protect residents from exposure to disease, such as the use of protective equipment, such as gloves and masks, based on the level of risk the employee or contractor presents to residents by the employee's or contractor's routine and direct exposure to residents;
(F) prohibit discrimination or retaliatory action against an employee or contractor who is exempt from the required vaccines for the medical conditions identified as contraindications or precautions by the Centers for Disease Control and Prevention, except that required use of protective medical equipment, such as gloves and masks, may not be considered retaliatory action;
(G) require the facility to maintain a written or electronic record of each employee's or contractor's compliance with or exemption from the policy;
(H) include disciplinary actions the facility may take against an employee or contractor who fails to comply with the policy.
(3) The policy may:
(A) include procedures for an employee or contractor to be exempt from the required vaccines based on reasons of conscience, including religious beliefs; and
(B) prohibit an employee or contractor who is exempt from the required vaccines from having contact with resi-dents during a public health disaster, as defined in Texas Health and Safety Code, § 81.003 (relating to Communicable Diseases).
(s) A DADS employee must not retaliate against an assisted living facility, an employee of an assisted living facility, or a person in control of an assisted living facility for:
(1) complaining about the conduct of a DADS employee;
(2) disagreeing with a DADS employee about the existence of a violation of this chapter or a rule adopted under this chapter; or
(3) asserting a right under state or federal law.
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