The Texas Department of Human Services (DHS) adopts amendments to §92.4, §92.20, §92.41, and adopts new §92.71 and §92.72. New §92.72 is adopted with changes to the proposed text in the September 1, 2000, issue of the Texas Register (25 TexReg 8613). The amendments to §92.4, §92.20, §92.41, and new §92.71 are adopted without changes to the proposed text in the September 1, 2000, issue of the Texas Register (25 TexReg 8613) and will not be republished.

Justification for the amendments and new sections is to establish a separate assisted living licensure category for facilities serving persons who need assistance only with medications and general supervision as required by Health and Safety Code §247.030. The rules provide a different category of Life Safety Code requirements, more appropriate for a population which is fully capable of evacuation unassisted and is not medically frail. The rules also add staff training requirements that address this population's unique needs in the areas of medication and behavior.

The department received a comment from the Health and Human Services Commission (HHSC). A summary of the comment and DHS's response follow.

Comment: We find the rules to be inconsistent with aspects of Goal 1 of the Fiscal Year 2001 Health and Human Services Coordinated Strategic Plan to "Promote effective and appropriate long term care services so people with functional limitations can live as independently as possible within a continuum of care ranging from in-home and community services to institutional care."

The rule, as currently written, appears to have an adverse effect on the range of services available within the community. We would encourage DHS to consider changes to the proposed rules that allow current high quality providers to continue providing services, either through a grandfathering mechanism or other appropriate changes to the proposed rules.

Response: The department discussed this concern with HHSC, and as a result of the discussion, HHSC has concurred with the rules as written. The intent of the rules is to provide more options in the community for persons requiring only supervision of their medications and general welfare.

Other comments were received from Advocacy Incorporated, the Mental Health Association of Tarrant County, numerous individuals writing in support of Herrin House, a facility serving persons with mental illness, and the International Conference of Building Officials. A summary of the comments and DHS's responses follow.

Comment: The proposed rule which limits Type E facilities to one story would prevent Herrin House from obtaining a Type E license. While we understand that the restrictions for a one-story building and only 16 clients may be based on the idea of protecting mobility-impaired residents, we believe that the rule would result in fewer facilities being available to persons needing the type of services that Herrin House has been providing for many years.

Mobility-impaired residents can be protected by placing them in the first story of its two-story building. We recommend that the following be added to the rules:

1) A grandfather or waiver provision that would allow existing facilities to continue to serve residents so long as the residents are not in danger.

2) A provision allowing two-story facilities so long as mobility-impaired residents are only housed on the first floor.

Response: The department will retain the rules as proposed. The restriction to a single story was not based on protecting mobility-impaired residents, but rather on the belief that meeting the Life Safety Code requirements for a multi-story building would be cost prohibitive. A two-story building requires a second stairway for exiting the second floor and enclosing interior stairways (vertical openings). The need for a minimum of two exits from each floor and enclosing vertical openings has been well documented by historical fire experience. The cost for these provisions was considered prohibitive so the Type E licensure was limited to a single story. Section 247.030 Health and Safety Code authorizes the department to modify accessibility and life safety code standards as necessary for a facility of this type. Note: Herrin House has been licensed as a Type A assisted living facility.

Comment: We question the necessity of limiting Type E licensure to 16 beds. The growing shortage of both affordable housing and residential programs that supervise medication for the mentally ill continually add to the number of homeless mentally ill clients living on our streets. Type E licensing was supposed to alleviate the shortage of facilities for such clientele. It is our hope that each existing facility could be judged on its own safety merits and track record with clients. We recommend deleting or modifying the 16-bed limit.

Response: The department will retain the rules as proposed. Type E licensure was limited to 16 beds because the Life Safety Code provisions for residential board and care homes for not more than 16 residents ("small" homes) are less stringent than the current standards for assisted living facilities. Facilities with more than 16 residents are defined as "large" and are required to meet more stringent Life Safety Code requirements. Section 247.030 Health and Safety Code authorizes the department to modify accessibility and life safety code standards as necessary for a facility of this type.

Comment: In §92.71(b)(4)(A) and (B), reference is made to the 1988 editions of the Uniform Building Code (UBC) and the Uniform Plumbing Code. These publications are some 12 years out of date. The 1988 version of the UBC is no longer in print.

The International Conference of Building Officials, the Southern Building Code Congress International and the Building Officials and Code Administrators International began a process of merging their separate sets of codes into a single set in 1994. That process is complete and the 2000 editions of the three organization's codes published under the umbrella of the International Code Council are now available. We strongly encourage you to reference the 2000 edition of the International Building Code, International Plumbing Code, International Fuel Gas Code, and International Mechanical Code in your revised rules.

Response: The department will retain the rules as proposed. The licensing standards for assisted living facilities requires compliance with the 1988 Edition of the Life Safety Code and references similar editions of the model building codes "in the absence of local codes or their enforcement for new construction." The 1994 Edition of the Life Safety Code requires all facilities to be protected by an automatic sprinkler system. The cost of a sprinkler system was considered prohibitive for a Type E facility so the enforcement of the 1988 Edition of the Life Safety Code was continued. The edition year of the building code is set by the local authorities, and the 1988 editions are enforced by DHS only in their absence.

Comment: Regarding §92.72(l)(1)(B), delete the requirement that no more than 50% of a facility's beds may be in bedrooms of 3 or more. There does not seem to be any health or safety reason for this requirement. If one bedroom can have 4 beds, why can't all bedrooms?

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

Comment: Regarding §92.72(l)(2)(E), which requires hot water to be between 100 and 125 degrees Fahrenheit, change 125 to 120 degrees. A similar reduction was made to the general assisted living standards August 1, 2000.

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

Comment: The rules that govern licensure of assisted living facilities do not adequately address the use and restrictions of emergency interventions (restraints, seclusion and chemical restraint). The residents' rights rules currently address only this issue:

"Each resident in the assisted living facility has the right to be free from physical and mental abuse, including corporal punishment or physical and chemical restraints that are administered for the purpose of discipline or convenience and not required to treat the resident's medical symptoms. A provider may use physical and chemical restraints only if the use is authorized in writing by a physician or the use is necessary in an emergency to protect the resident or others from injury. A physician's written authorization for the use of restraints must specify the circumstances under which the restraints may be used and the duration for which the restraints may be used. Except in an emergency, restraints may only be administered by qualified medical personnel."

This language empowers physicians and care givers, who have no mandated training or experience, to make a subjective decision as to when and how they can impose restraints or seclusion on residents.

Assisted living facilities are characterized by DHS staff and providers as providing individuals the assistance they need to "reside in their own homes." People are not legally restrained, secluded, or forcibly administered medications in their own home. Providers should not have the right to do so in assisted living facilities. Neither the educational or training requirements ensure that staff have the expertise or training to appropriately assess these situations, correctly administer an intervention, or provide necessary medical care subsequent to the intervention. There is no definition of emergency or restraints. There is no guidance to physicians as to when it may be appropriate to order such an intervention. In other residential settings, the use of such interventions is governed by strict standards and people die even when those standards are followed. Advocacy, Inc. is not attempting to prohibit the appropriate use of supportive devices or protective devices. Nor would we disagree that in an emergency a provider may need to physically intervene immediately and then request assistance from law enforcement. This is standard practice in any individual's home. However, the standard must provide more guidance to providers and physicians in this matter.

Currently, staff/client ratios are developed monthly by the administrator based on the needs identified in the care plan developed for the residents. With a population of individuals whose needs basically consist of food, shelter and assistance with medication, it is likely that routinely a staff/client ratio of 1-16 will be created. We question the adequacy of this ratio, particularly when providers are reluctant to restrict the use of emergency interventions. The two positions appear to be in conflict. If their concern is valid, it seems reasonable to mandate a minimum of 2 staff to 16 clients.

Response: Regarding the issue of restraints, the department will be convening a work group to address this issue through a separate rule promulgation process. It should be noted that the quoted rule language from the commenter is taken directly from the rights of the elderly, §102.003(c) of the Human Resources Code. The issue of staff ratios was thoroughly discussed by the workgroup and advisory committees during the development of these rules. The intent of these rules is to provide an avenue for currently unlicensed facilities to seek an appropriate level of licensure for the services they provide. The assisted living standards require facilities to staff appropriately, based upon individual assessments of their resident's needs. The department's position is 1 to 16 is an adequate minimum ratio for the clientele Type E facilities would serve. The department will not mandate a ratio of 2 staff to 16 clients; to do so would be contrary to the rules requiring staffing based upon individual assessments of a facility's residents.

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

The amendment implements the Health and Safety Code, Chapter 247.001-247.066.