TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 551. INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS

SUBCHAPTER C. STANDARDS FOR LICENSURE

26 TAC §551.46

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 26, Part 1, Texas Administrative Code, Chapter 551, Subchapter C, new §551.46, concerning an emergency rule to mitigate and contain COVID-19 in an intermediate care facility for individuals with an intellectual disability (ICF/IID) or related condition. As authorized by Texas Government Code §2001.034, HHSC may adopt an emergency rule without prior notice or hearing upon finding that an imminent peril to the public health, safety, or welfare requires adoption on fewer than 30 days' notice. Emergency rules adopted under Texas Government Code §2001.034 may be effective for not longer than 120 days and may be renewed for not longer than 60 days.

BACKGROUND AND PURPOSE

The purpose of this emergency rulemaking is to support the Governor's March 13, 2020, proclamation certifying that the COVID-19 virus poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. In this proclamation, the Governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and directed that government entities and businesses would continue providing essential services. HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this emergency rule for ICF/IID Provider Response to COVID-19 - Mitigation.

To protect individuals receiving ICF/IID services and the public health, safety, and welfare of the state during the COVID-19 pandemic, HHSC is adopting an emergency rule to mitigate and contain COVID-19. The purpose of the new rule is to describe requirements for ICF/IID Provider Response to COVID-19.

STATUTORY AUTHORITY

The emergency rulemaking is adopted under Texas Government Code §2001.034 and §531.0055 and Texas Health and Safety Code §§252.031 - 252.033 and §242.043. Texas Government Code §2001.034 authorizes the adoption of emergency rules without prior notice and hearing, if an agency finds that an imminent peril to the public health, safety, or welfare requires adoption of a rule on fewer than 30 days' notice. Texas Government Code §531.0055 authorizes the Executive Commissioner of HHSC to adopt rules and policies necessary for the operation and provision of health and human services by the health and human services system. Texas Health and Safety Code §§252.031 - 252.033 require the Executive Commissioner of HHSC to establish rules prescribing the minimum standards and process for licensure as an intermediate care facility. Texas Health and Safety Code §252.043 establishes HHSC's authority to conduct an inspection, survey, or investigation at an intermediate care facility to determine if the intermediate care facility is in compliance with the minimum acceptable levels of care for individuals who are living in an intermediate care facility, and the minimum acceptable life safety code and physical environment requirements.

The new rule implements Texas Government Code §531.0055 and §531.021 and Texas Human Resources Code §32.021.

§551.46.ICF/IID Provider Response to COVID-19--Mitigation.

(a) The following words and terms, when used in this section, have the following meanings.

(1) Cohort--A group of individuals placed in rooms, halls, or sections of an intermediate care facility with others who have the same COVID-19 status or the act of grouping individuals with other individuals who have the same COVID-19 status.

(2) COVID-19 negative--A person who has tested negative for COVID-19, is not exhibiting symptoms of COVID-19, and has had no known exposure to the virus since the negative test.

(3) COVID-19 positive--A person who has tested positive for COVID-19 and does not yet meet the Texas Department of State Health Services (DSHS) guidance for the discontinuation of transmission-based precautions.

(4) COVID-19 status--The status of a person based on COVID-19 test results, symptoms, or other factors that consider the person's potential for having the virus.

(5) Fully vaccinated person--A person who received the second dose in a two- dose series or a single dose of a one dose COVID-19 vaccine and 14 days have passed since this dose was received.

(6) Individual--A person enrolled in the ICF/IID Program.

(7) Isolation--The separation of people who have a COVID-19 positive status from those who have a COVID-19 negative status and those whose COVID-19 status is unknown.

(8) Quarantine--The practice of keeping someone who might have been exposed to COVID-19 away from others. Quarantine helps prevent spread of disease that can occur before a person knows they are sick or if they are infected with the virus without experiencing symptoms.

(9) Unknown COVID-19 status--A person, except as provided by DSHS for an individual who is fully vaccinated for COVID-19 or recovered from COVID-19, who:

(A) is a new admission or readmission;

(B) has spent one or more nights away from the facility;

(C) has had known exposure or close contact with a person who is COVID-19 positive; or

(D) is exhibiting symptoms of COVID-19 while awaiting test results.

(b) An intermediate care facility must have a protocol in place, included in its COVID-19 response plan, that describes how, if the facility cannot successfully isolate the individual, the facility will transfer a COVID-19 positive individual to a facility capable of isolating and caring for the COVID-19 positive individual.

(1) An intermediate care facility must have contracts or agreements with alternative appropriate facilities to ensure care for COVID-19 positive individuals.

(2) An intermediate care facility must assist the individual and family members as needed to transfer the individual to the alternate facility.

(c) An intermediate care facility must have a COVID-19 response plan that includes:

(1) designated space for:

(A) COVID-19 negative individuals;

(B) individuals with unknown COVID-19 status; and

(C) COVID-19 positive individuals, when the facility is able to care for an individual at this level or until arrangements can be made to transfer the individual to a higher level of care;

(2) individual transport protocols; and

(3) if the facility houses COVID-19 positive individuals, an individual recovery plan for continuing care after an individual is recovering from COVID-19.

(d) An intermediate care facility must screen all individuals, staff, and people who come to the facility in accordance with HHSC guidance.

(e) An intermediate care facility must screen each employee or contractor in accordance with HHSC guidance before entering the facility at the start of their shift. Staff screenings must be documented in a log kept at the facility entrance, and must include the name of each person screened, the date and time of the evaluation, and the results of the evaluation. Staff who meet any of the criteria must not be permitted to enter the facility.

(f) An intermediate care facility must assign each individual to the appropriate cohort based on the individual's COVID-19 status.

(g) An individual with unknown COVID-19 status must be quarantined and monitored for fever and other symptoms of COVID-19 in accordance with DSHS guidance.

(h) An individual with COVID-19 positive status must be isolated until the individual meets DSHS recommendations for the discontinuation of transmission-based precautions, if cared for in the facility.

(i) If an individual with COVID-19 positive status must be transferred for a higher level of care, the facility must isolate the individual until the individual can be transferred.

(j) An intermediate care facility must implement a staffing policy requiring the following:

(1) staff must inform the facility per facility policy prior to reporting for work if they have known exposure or symptoms;

(2) staff must perform self-monitoring on the days they do not work; and

(3) the facility must develop and implement a policy regarding staff working with other long-term care (LTC) providers that limits the sharing of staff with other LTC providers and facilities, unless required in order to maintain adequate staffing at a facility.

(k) The facility must develop and enforce policies and procedures for infection control. The written standards, policies, and procedures for the facility's infection prevention and control program must include standard and transmission-based precautions to prevent the spread of COVID-19.

(l) A facility must notify the Texas Health and Human Services Commission (HHSC) Complaint and Incident Intake of COVID-19 activity as described below.

(1) A facility must notify HHSC of the first confirmed case of COVID-19 in staff or individuals, and the first confirmed case of COVID-19 after a facility has been without cases for 14 days or more, at HHSC Complaint and Incident Intake (CII) through TULIP, or by calling 1-800-458-9858, within 24 hours of the positive confirmation.

(2) A facility must submit a Form 3613-A Provider Investigation Report, minus the name of the person who tested positive for COVID-19, to HHSC Complaint and Incident Intake, through TULIP, by email at ciiprovider@hhs.texas.gov, or by fax at 877-438-5827, within five working days from the day a confirmed case is reported to CII.

The agency certifies that legal counsel has reviewed the emergency adoption and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 5, 2022.

TRD-202201217

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 6, 2022

Expiration date: August 3, 2022

For further information, please call: (512) 438-3161


CHAPTER 553. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES

SUBCHAPTER K. COVID-19 RESPONSE

26 TAC §553.2001

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC or Commission) adopts on an emergency basis in Title 26 Texas Administrative Code, Chapter 553, Licensing Standards for Assisted Living Facilities, new §553.2001, concerning an emergency rule in response to COVID-19 and requiring assisted living facility actions to mitigate and contain COVID-19. As authorized by Texas Government Code §2001.034, the Commission may adopt an emergency rule without prior notice or hearing if it finds that an imminent peril to the public health, safety, or welfare requires adoption on fewer than 30 days' notice. Emergency rules adopted under Texas Government Code §2001.034 may be effective for not longer than 120 days and may be renewed for not longer than 60 days.

BACKGROUND AND PURPOSE

The purpose of the emergency rulemaking is to support the Governor's March 13, 2020, proclamation certifying that the COVID-19 virus poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. In this proclamation, the Governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and directed that government entities and businesses would continue providing essential services. HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this emergency rule for Assisted Living Facility COVID-19 Response.

To protect assisted living facility residents and the public health, safety, and welfare of the state during the COVID-19 pandemic, HHSC is adopting an emergency rule to require assisted living facility actions to mitigate and contain COVID-19. The purpose of the new rule is to describe these requirements.

STATUTORY AUTHORITY

The emergency rulemaking is adopted under Texas Government Code §2001.034 and §531.0055, and Texas Health and Safety Code §247.025 and §247.026. Texas Government Code §2001.034 authorizes the adoption of emergency rules without prior notice and hearing, if an agency finds that an imminent peril to the public health, safety, or welfare requires adoption of a rule on fewer than 30 days' notice. Texas Government Code §531.0055 authorizes the Executive Commissioner of HHSC to adopt rules and policies necessary for the operation and provision of health and human services by the health and human services system. Texas Health and Safety Code §247.026 requires the Executive Commissioner of HHSC to adopt rules prescribing minimum standards to protect the health and safety of assisted living residents. Texas Health and Safety Code §247.025 requires the Executive Commissioner of HHSC to adopt rules necessary to implement Texas Health and Safety Code Chapter 247 concerning assisted living facilities.

The new section implements Texas Government Code §531.0055 and Texas Health and Safety Code Chapter 247.

§553.2001.Assisted Living Facility COVID-19 Response.

(a) The following words and terms, when used in this section, have the following meanings.

(1) Cohort--A group of residents placed in rooms, halls, or sections of an assisted living facility with others who have the same COVID-19 status or the act of grouping residents with other residents who have the same COVID-19 status.

(2) COVID-19 positive--The status of a person who has tested positive for COVID-19 and does not yet meet Department of State Health Services (DSHS) guidance for the discontinuation of transmission-based precautions.

(3) COVID-19 status--The status of a person based on COVID-19 test results, symptoms, or other factors that consider the person's potential for having the virus.

(b) An assisted living facility must have a COVID-19 response plan that includes a policy that describes how, if the facility cannot successfully isolate a resident, the facility will transfer a COVID-19 positive resident to another facility capable of isolating and caring for the COVID-19 positive resident.

(c) In the situation described in subsection (b) of this section, the assisted living facility must assist the resident and family members to transfer the resident to the alternate facility.

(d) An assisted living facility must screen all residents, staff, and people who come to the facility, in accordance with Texas Health and Human Services Commission (HHSC) guidance.

(e) An assisted living facility must assign each resident to the appropriate cohort based on the resident's COVID-19 status.

(f) A resident with COVID-19 positive status must be isolated until the resident meets guidelines for the discontinuation of transmission-based precautions, if cared for in the facility.

(g) An assisted living facility must develop and enforce policies and procedures for infection control. The written standards, policies, and procedures for the facility's infection prevention and control program must include standard and transmission-based precautions.

(h) An assisted living facility must report COVID-19 activity as required by §553.261(f) of this chapter (relating to Coordination of Care). COVID-19 activity must be reported to HHSC Complaint and Incident Intake as described below.

(1) A facility must notify HHSC of the first confirmed case of COVID-19 in staff or residents and the first confirmed case of COVID-19 after a facility has been without cases for 14 days or more using the HHSC Complaint and Incident Intake through Texas Unified Licensure Information Portal (TULIP) or by calling 1-800-458-9858 within 24 hours of the positive confirmation.

(2) A facility must submit Form 3613-A, Provider Investigation Report, to HHSC Complaint and Incident Intake through TULIP or by calling 1-800-458-9858 within five working days from the day a confirmed case is reported.

The agency certifies that legal counsel has reviewed the emergency adoption and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 31, 2022.

TRD-202201116

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 3, 2022

Expiration date: July 31, 2022

For further information, please call: (512) 438-3161