Response: In response to comment, the department will insert the clarifying phrase "as ordered by the resident's physician." The department does not wish to make the other changes, which are substantive, without discussing them with the assisted living workgroup. The department will consider these comments as future changes to the rules are contemplated.

Comment: In §92.41(l)(5), replace "four-day" with "seven-day." The 1999 Federal Food Code, as adopted by the State of Texas, requires a seven-day supply of staple foods. The Code makes no reference to the minimum supply of perishable foods that should be maintained; therefore this requirement should be reviewed. The Texas Dietetic Association (TDA) has no specific recommendation regarding the perishable food supply requirement.

Response: The 1999 Federal Food Code is a model food code, by which the state of Texas is not bound. The department is not aware of such a requirement in the Texas Food Establishment Rules, which do apply to larger assisted living facilities, and, therefore, will not make the suggested change.

Comment: In §92.41(l)(6), insert a second sentence reading, "Food prepared in a private home may not be used or offered for human consumption in an assisted living facility." The new second sentence clarifies the intent and meaning of the first sentence, that is that food prepared for residents of a facility must be prepared in a manner which fully complies with the Federal Food Code. That Code does not apply to food prepared for consumption in a private home.

Response: The department does not concur. As previously stated, Texas is not bound by the 1999 Federal Food Code. The meaning of the rules is clear as written and, consequently, no changes will be made.

Comment: Replace §92.41(l)(7) with " Food may be stored in airtight containers with tight fitting lids." The recommended language restates the current rule in a more clear and understandable language, with the appropriate subject of the rule being the storage of food, rather than the use of plastic containers.

Response: The department does not concur. The meaning of the rule is clear as written and, consequently, no changes will be made.

Comment: Amend §92.41(l)(8) as suggested below. The recommended language changes the current rule to conform to the standards of the 1999 Federal Food Code.

"(8) Potentially hazardous food, such as meat and milk products, must be stored at 41 [45] degrees Fahrenheit or below. Hot food must be kept at 140 degrees Fahrenheit or above during preparation and serving. Food which is reheated must be heated to a minimum of 165 degrees Fahrenheit."

Response: Although the department is not bound by the 1999 Federal Food Code, the department will make the suggested change, because it is required by the Texas Food Establishment Rules, which apply to larger assisted living facilities.

Comment: Amend §92.41(l)(9) as suggested below. The change in the current rules to the 40-degree standard for refrigerators is to conform the rule to the standards of the 1999 Federal Food Code. The new sentence regarding logging of temperatures is to provide a simple mechanism to help insure compliance with the standard.

"(9) Freezers must be kept at a temperature of 0 degrees Fahrenheit or below and refrigerators must be kept at 40 [45] degrees Fahrenheit or below. Thermometers must be placed in the warmest area of the refrigerator and freezer to assure proper temperature. Daily logs shall be maintained to ensure the maintenance of the required temperatures in refrigerators and freezers."

Response: The department will change the temperature requirement to 41 degrees, as required by the Texas Food Establishment Rules. The requirement to keep daily logs is too substantive a change to make without discussion with the assisted living advisory workgroup, but the department will consider it in future rule changes.

Comment: Amend §92.41(l)(10) as suggested below. The recommended language is intended to require the use of more comprehensive techniques to prevent cross-contamination of foods. The use of the word "appropriate" to describe the utensils that must be used is intended to be broader to address the needs of those residents who may require special eating utensils or feeding techniques.

"(10) Food must be prepared and served with the least possible manual contact, with appropriate [suitable] utensils and using preparation techniques [on surfaces that prior to use have been cleaned, rinsed, and sanitized] to prevent cross-contamination of foods."

Response: The department does not concur. The language is clear and will not be changed.

Comment: Amend §92.41(l)(11) as suggested below. The recommended language is offered to clarify the meaning of the currently used term of "established" by specifying that the applicable standards are those "established" by the appropriate units of government, and, as such, would include the 1999 Federal Food Code.

"(11) Facilities must prepare food in accordance [with established] food preparation practices and safety techniques established by local state and federal units of government."

Response: The department does not concur. As previously stated, Texas is not bound by the 1999 Federal Food Code. The language is clear and will not be changed.

Comment: Amend §92.41(l)(15) as suggested below. The proposed language incorporates the standards of the 1999 Federal Food Code.

"(15) Kitchen employees must wash their hands and exposed portions of their arms before engaging in food preparation or returning to work after using the lavatory; after touching human body parts other than clean hands and clean portions of arms; after coughing, sneezing, or using a handkerchief or disposable tissue; after using tobacco, eating or drinking; after handling soiled equipment or utensils; during food preparation, as often as necessary to remove soil and contamination and to prevent cross-contamination of food when changing tasks; when switching between working with raw food and ready-to-eat food; and after engaging in other activities which could contaminate the hands or exposed portions of the arms."

Response: The department does not concur. As previously stated, Texas is not bound by the 1999 Federal Food Code. The current language is clear and does not require the additional prescriptive language.

Comment: Amend §92.41(l)(16) as suggested below. The recommended language expands the scope of the storage requirement to include pest control products which are also often found near food storage or preparation areas, clarifies the nature of the products for which special storage precautions must be taken, and clarifies the purpose (prevent cross-contamination) and the products which must be protected against cross-contamination by the special storage precautions.

"(16) Poisonous or toxic materials, such as dishwashing [Dish washing] chemicals or pest control products, used in the kitchen must [may] be stored in a manner which assures that they cannot contaminate food, equipment, utensils, linens and single-service and single-use articles [plastic containers if they are the original in which the manufacturer packaged the chemicals]."

Response: The department will not make the suggested change. As the commenter states, it expands the scope of the original rule, and the department will not make such a substantive change without first discussing it with the assisted living workgroup. The department will consider these comments as future changes to the rules are contemplated.

Comment: Amend §92.41(l)(17) as suggested below. The recommendation is intended to add clarity to the scope of the sanitary procedures required.

"(17) [Sanitary] Dishwashing, warewashing, and potwashing [dishwashing] procedures and techniques must be followed to maintain sanitary conditions."

Response: The department does not concur. The language is clear and will not be changed.

Comment: In §92.41(l)(18), requires all large assisted living facilities to meet the standards of the Texas Food Establishment rules. The Texas Dietetic Association believes that the standards of the Texas Food Establishment rules are so fundamental, and that the risk of harm to residents is at least equal between facilities on the basis of facility size, that those standards should apply to all assisted living facilities and not just the larger ones.

Response: The department does not concur. Large assisted living facilities are required to meet the Texas Food Establishment Rules because they are required to have commercial kitchens. Small facilities, which have residential-type kitchens, are not required to comply with the Texas Food Establishment Rules. The department will retain the language as proposed.

Comment: Add a new section to §92.41(l), as suggested below. The new statute makes it clear that a core service of assisted living facilities is ensuring that the daily nutritional and special dietary service needs of each resident are met. The current minimal standards of the rules do not assure adequate staffing to satisfy this requirement. The recommended rule provides minimal standards for assuring these services by means of contracted services and tailor those standards to the size of the facility. In doing so, the recommended standards are similar to but less demanding than the standards imposed by 40 TAC §19.1104 as they apply to nursing facilities.

"(19) If a facility does not employ a licensed dietitian on its staff for at least twenty (20) hours per week, the facility must ensure that a licensed dietitian is available as frequently and for such time as is necessary to assure each resident a diet that meets the daily nutritional and special dietary needs of each resident, based upon each resident's service plan and physician's orders, if any. The facility must outline consultant services in a signed contract. The facility must ensure that food and nutritional consultant hours are provided, at a minimum, as follows:

(A) for a facility housing 17 residents or fewer residents, 4 hours monthly;

(B) for a facility housing 18 to 34 residents, 4 hours monthly; and

(C) for a facility housing more than 34 residents, for each additional 7 residents or a fraction thereof, 1 hour."

Response: The department does not wish to make such a substantive change without first discussing it with the assisted living workgroup. The department will consider these comments when future changes to the rules are contemplated.

Comment: Add a new section to §92.41(l), as suggested below. There are several diet manuals on the market which can provide helpful guidance to the non-professional person regarding the nutritional and special dietary needs of the residents, basic information regarding sound nutritional practices and the numerous special diets, to aid them in the performance of their duties.

"(20) The facility shall provide the person responsible for the food and nutritional services of the facility a diet manual of a type approved by the department to assist that person in understanding and meeting the daily nutritional and special dietary needs of the residents."

Response: The department does not wish to make such a substantive change without first discussing it with the assisted living workgroup. The department will consider these comments when future changes to the rules are contemplated.

Comment: Amend §92.62(d) to add a ninth core function of emergency management, food and nutrition needs. An emergency preparedness and response plan should also address the fundamental ("core") function of providing for the food and nutrition needs of the residents in an emergency situation, and as required by the statute.

Response: This proposed language was developed to conform with recommendations from the Texas Department of Health's Office of Emergency Management; consequently, the department will retain the language as proposed.

Comment: Amend §92.62(m)(6)(B) to require all facilities, large and small, to meet the kitchen standards. Now that the statute requires that the nutrition and special dietary needs of all residents must be met, the distinction between small and large facilities in those standards relating to nutrition and special dietary needs should be identical.

Response: The department intends to draw distinctions between large and small facilities in its rules; consequently, the department will retain the language as proposed.

Comment: Amend §92.62(m)(6)(B)(iv) as suggested below. The recommended language referring to a "food sink" is the preferred terminology and more accurately refers to a separate sink for all food preparation and not just vegetables or inaccurately imply the need for separate sinks for vegetables and other foods. The food sink must be separate from both the pot sink and the hand sink.

"(iv) A food [vegetable] preparation sink must be provided. It must be separate from the pot and hand sinks."

Response: The department concurs and will make the suggested change.

Comment: Amend §92(m)(6)(B)(vii) as suggested below. The recommended additional language is intended to clarify that the restroom facilities referred to are for the exclusive use of the kitchen and other staff for purposes of assuring sanitary food preparation and service conditions.

"(vii) Staff restroom facilities, separate from resident restroom facilities, with lavatory must be directly accessible to kitchen staff without traversing resident use areas . . ."

Response: The department does not concur. The language is clear and will not be changed.

Comment: Amend §92.62(m)(6)(B)(x) as suggested below. The added language clarifies that the door separating the kitchen from the dining or serving areas must be a fire door, because the kitchen area of any facility has so much greater a risk of fire, and sound fire safety standards require such protection between the kitchen and other areas of the facility.

"(x) A fire door must separate the [Doors between] kitchen and dining or serving areas and must have a l/4-inch fixed-wire glass view panel mounted in a steel frame."

Response: The department does not concur. The language is clear and will not be changed.

Comment: Amend §92.62(m)(6)(C)(i) to require a seven-day minimum supply of nonperishable food. As stated in our previous comments, the 1999 Federal Food Code standard requires the longer 7-day supply.

Response: Texas is not bound by the 1999 Federal Food Code and, therefore, the department will not make the suggested change.

Comment: Amend §92.62(m)(6)(D)(iii) as suggested below. Because the ceilings of auxiliary serving kitchen areas pose as significant a risk as the other surfaces of such an area, no exception should be allowed to the requirement that the surfaces of these areas conform to the same standards applicable to the kitchen area. The second change is merely to conform to the new recommended terminology of the applicable sections.

"(iii) Finishes of all surfaces [except ceilings] must be the same as those required for food and nutrition services [dietary] kitchens or comparable areas."

Response: In response to comment, the department will make the suggested change.

Comment: It is not likely that assisted living facilities will have the luxury of a Health Information Management professional on the staff; consequently it is my opinion that more detailed information should be furnished in the "Resident Records" section. Some of these are listed elsewhere in the document, but do not specify that they should be a part of the clinical record. The following are recommendations to §92.41(g), Resident Records, that I would like to present for your consideration:

"(1) Records should be maintained in a secured storage area, where they are organized and filed in a manner conducive to easy retrieval. They should be kept for five (5) years following date of last discharge from the facility, at which time they may be destroyed by shredding or burning. The facility should retain the "Admission Information" form, discharge date, destination and reason for transfer or discharge.

(2) Resident records must contain:

(A) information contained in the facility's standard and customary admission form which should be kept updated throughout the course of the stay;

(B) a record of the resident's assessments which are performed within 14 days of admission, upon significant change of condition and annually. This includes any emergency admission;

(C) The resident's service plan for providing care that is developed at the time of admission based on the assessment. It is to be approved and signed by the person responsible for the resident's health care decisions and must be updated annually and upon a significant change in condition, as determined by an assessment of the resident. Service plans for respite clients are to be done every six months:

(D) physician's orders, if any;

(E) any advance directives;

(F) documentation of 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 which has been signed/authenticated by the resident's physician. A rubber stamp signature is acceptable when the physician furnishes the facility with a letter of intent stating that he/she will be using the stamp and signs the letter with the same signature. Subsequently, annual examinations should be done by the resident's physician.

(G) documentation by health care professionals of any services delivered in accordance with the licensing, certification or other regulatory standards applicable to the health care professional under law. Resident care plans from rehabilitation or any other outside resources must be provided to the facility, along with documentation at the facility of any services provided on the day provided.

(H) documentation of administration of medications will be done according to physician orders. If the resident is in the facility, and medication is not given as prescribed, the reason will be stated along with the name and strength of the medication missed and date and time it should have been given.

(I) Documentation should be entered into the record if the resident is incompetent or incapacitated to make decisions and exercise rights.

(J) Any change of condition or unusual reactions to medications or treatment will be reported to the resident's physician and responsible party and documented in the record.

(3) Records must be available to residents, their legal representatives and the Texas Department of Human Services (DHS) staff.

(A) copies will be furnished upon request of resident/legal guardian, at a rate equitable with normal copying fees charged in the community, not to exceed $.25 per page, plus clerical time required.

(4) Annual consultation will be provided by a Registered Health Information Technician or a Registered Health Information Administrator to assure, that quality records management is being achieved and that systems are in place to attain desired professional practice standard goals at the highest level."

Response: The department does not concur with the recommended changes, many of which are unnecessary because they contain information already required in other parts of the rules. Other changes, such as the "stamped signature" and the requirement for consultation by a health information professional, are substantive, and the department does not wish to make these changes without first discussing them with the assisted living workgroup.

The amendments are adopted under the Health and Safety Code, Chapter 247, which authorizes the department to license personal care facilities.

The amendments implement the Health and Safety Code, Chapter 247.001-247.066.