TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 500. COVID-19 EMERGENCY HEALTH CARE FACILITY LICENSING

SUBCHAPTER B. END STAGE RENAL DISEASE FACILITIES

26 TAC §500.20

The Executive Commissioner of the Health and Human Services Commission (HHSC) adopts on an emergency basis new §500.20, ESRD Off-Site Facilities During the COVID-19 Pandemic, in Texas Administrative Code (TAC) Title 26, Chapter 500, Subchapter B. This emergency rule will allow end stage renal disease (ESRD) facilities to treat and train dialysis patients more effectively during the COVID-19 pandemic.

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 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 exists and requires immediate adoption of this emergency rule for ESRD Off-Site Facilities During the COVID-19 Pandemic.

To protect current and future patients in health care facilities and the public health, safety, and welfare of the state during the COVID-19 pandemic, HHSC is adopting an emergency rule to allow a currently licensed ESRD facility to apply to operate an off-site outpatient facility without obtaining a new license at: (1) an ESRD facility that is no longer licensed that closed within the past 36 months; (2) a mobile, transportable, or relocatable medical unit; (3) a physician's office; or (4) an ambulatory surgical center or freestanding emergency medical care facility that is no longer licensed that closed within the past 36 months.

STATUTORY AUTHORITY

The emergency rule is adopted under Texas Government Code §2001.034 and §531.0055 and Texas Health and Safety Code §251.003 and §251.014. 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 the Health and Human Services Commission 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 §251.003 requires HHSC to adopt rules for the issuance, renewal, denial, suspension, and revocation of a license to operate an ESRD facility. Texas Health and Safety Code §251.014 requires these rules to include minimum standards to protect the health and safety of a patient of an ESRD facility.

This new section implements Texas Government Code §531.0055 and Texas Health and Safety Code Chapter 251.

§500.20.ESRD Off-Site Facilities During the COVID-19 Pandemic.

(a) Based on Governor Greg Abbott's March 13, 2020 declaration of a state of disaster in all Texas counties, the Texas Health and Human Services Commission (HHSC) adopts this emergency rule to establish continuing requirements and flexibilities to protect public health and safety during the COVID-19 pandemic. The requirements and flexibilities established in this section are applicable during an active declaration of a state of disaster in all Texas counties due to the COVID-19 pandemic, declared pursuant to §418.014 of the Texas Government Code.

(b) An end stage renal disease (ESRD) facility licensed under Texas Health and Safety Code Chapter 251 that meets the requirements of this emergency rule may use an off-site facility under its current license for added services or an increased number of stations to meet patient needs in response to COVID-19 for the duration this emergency rule is in effect or any extension of this emergency rule is in effect.

(c) The off-site facility must be:

(1) An ESRD facility no longer licensed under Texas Health and Safety Code Chapter 251 that closed within the past 36 months, or a facility with a pending application for such a license that has passed its final architectural review inspection, which:

(A) shall be capable of meeting the current licensing requirements in the Texas Administrative Code (TAC) Title 25 §117.32(a) - (e) (relating to Water Treatment, Dialysate Concentrates, and Reuse); or

(B) shall provide integrated hemodialysis machines, which incorporate water treatment and dialysis preparation and delivery into one system.

(2) A mobile, transportable, or relocatable medical unit utilizing integrated dialysis systems and defined as any trailer or self-propelled unit:

(A) equipped with a chassis on wheels;

(B) without a permanent foundation; and

(C) intended for provision of medical services on a temporary basis.

(3) A physician's office built after January 1, 2015, that is currently in use, which shall be used only for home training of COVID-19-negative dialysis patients;

(4) A physician's office built after January 1, 2015, that has closed within the past 12 months, which shall be used only for home training of COVID-19-negative dialysis patients and complies with the following:

(A) the office shall be well maintained with all building systems in good working condition; and

(B) manual fire extinguishers shall be provided in accordance with NFPA 10: Standard for Portable Fire Extinguishers.

(5) An ambulatory surgical center no longer licensed under Texas Health and Safety Code, Chapter 243 that closed within the past 36 months and will be used for either home training or providing in-center dialysis treatment where both of the following are met:

(A) the ESRD facility shall only provide integrated hemodialysis machines; and

(B) the building layout shall provide a direct view of all patient stations from a nurse's station.

(6) A freestanding emergency medical care facility no longer licensed under Texas Health and Safety Code, Chapter 254 that closed within the past 36 months and will be used for either for home training services or providing in-center dialysis treatment where both of the following are met:

(A) the ESRD facility shall only provide integrated hemodialysis machines; and

(B) the building layout shall provide a direct view of all patient stations from a nurse's station.

(d) Prior to receiving approval to use an off-site facility under this emergency rule, the ESRD facility must submit to INFOHFLC@hhs.texas.gov on a form provided by HHSC:

(1) an application to use an off-site facility for the addition of services or increased number of stations; and

(2) water culture testing results that meet the requirements of 25 TAC §117.32(c)(4).

(e) HHSC has the discretion to approve or deny any application to use an off-site facility under this emergency rule. HHSC may require an inspection of the off-site facility or additional documentation prior to considering an application.

(f) In order to protect the health, safety, and welfare of patients and the public, HHSC may withdraw its approval for an ESRD facility to use the off-site facility under this emergency rule at any time. Any patients being treated in the off-site facility at the time approval is withdrawn shall be safely relocated as soon as practicable according to the ESRD facility's policies and procedures.

(g) If an executive order or other direction is issued by the Governor of Texas, the President of the United States, or another applicable authority that is more restrictive than this section or any minimum standard relating to an ESRD facility, the ESRD facility must comply with the executive order or other direction.

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 26, 2021.

TRD-202101331

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: March 29, 2021

Expiration date: July 26, 2021

For further information, please call: (512) 834-4591


CHAPTER 550. LICENSING STANDARDS FOR PRESCRIBED PEDIATRIC EXTENDED CARE CENTERS

SUBCHAPTER C. GENERAL PROVISIONS

DIVISION 1. OPERATIONS AND SAFETY PROVISIONS

26 TAC §550.213

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 26 Texas Administrative Code, Chapter 550, Licensing Standards for Prescribed Pediatric Extended Care Centers, Subchapter C, General Provisions, Division 1, Operations and Safety Provisions, new §550.213, concerning an emergency rule in response to COVID-19 in order to reduce the risk of transmission of COVID-19. As authorized by Texas Government Code §2001.034, the Commission 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 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 Prescribed Pediatric Extended Care Center Response to COVID-19--Screening.

To protect minors being served in a prescribed pediatric extended care center and the public health, safety, and welfare of the state during the COVID-19 pandemic, HHSC is adopting an emergency rule to update screening requirements for certain persons authorized to enter a prescribed pediatric extended care center. The updates are consistent with current guidance provided by the Centers for Disease Control and Prevention (CDC).

The emergency rule adds additional signs and symptoms, as outlined by the CDC, to the list of items a prescribed pediatric extended care center must screen for before allowing entry of persons providing critical assistance.

STATUTORY AUTHORITY

The emergency rulemaking is adopted under Texas Government Code §2001.034 and §531.0055 and Texas Health and Safety Code §248A.101. 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 §248A.101, authorizes the Executive Commissioner of HHSC to adopt rules to implement Texas Health and Safety Code §248A, including rules prescribing minimum standards to protect the health and safety of minors being served in prescribed pediatric extended care centers.

The new section implements Texas Government Code §531.0055 and Texas Health and Safety Code §248A.101, Chapter 550, §550.213.

§550.213.Emergency Rule for Prescribed Pediatric Extended Care Center Response to COVID-19 - Screening.

(a) Based on state law and federal guidance, the Texas Health and Human Services Commission (HHSC) finds COVID-19 to be a health and safety risk and requires a prescribed pediatric extended care center to take the following measures. The screening required by this section does not apply to emergency services personnel entering the center in an emergency.

(b) In this section:

(1) Providers of essential services include, but are not limited to, contract doctors, contract nurses, therapists, dieticians, social workers, and home health workers whose services are necessary to ensure minors' health and safety.

(2) Persons with legal authority to enter include, but are not limited to, law enforcement officers, representatives of Disability Rights Texas, representatives of the long-term care ombudsman's office, and government personnel performing their official duties.

(3) Persons providing critical assistance include providers of essential services and persons with legal authority to enter.

(c) A prescribed pediatric extended care center must take the temperature of every person upon arrival and may not allow a person with a fever as described in subsection (e) of this section to enter or remain in the center.

(d) Staff who do not pass screening as described in subsection (g) of this section must be sent home until they meet the requirements to be able to return to work.

(e) A minor who does not pass screening as described in subsection (g) of this section must be isolated from other minors in the center until they can be sent home.

(f) A prescribed pediatric extended care center must prohibit visitors, except as provided in subsection (g) of this section.

(g) A prescribed pediatric extended care center may allow entry of persons providing critical assistance, unless the person meets one or more of the following screening criteria:

(1) fever, defined as a temperature of 100.4 Fahrenheit and above, or by the most current Centers for Disease Control and Prevention (CDC) guidance;

(2) signs or symptoms of COVID-19, including chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, new loss of taste or smell, sore throat, congestion or runny nose, nausea or vomiting, or diarrhea;

(3) additional signs and symptoms as outlined by the CDC in Symptoms of Coronavirus at cdc.gov;

(4) contact in the last 14 days, unless to provide critical assistance, with someone who has a confirmed diagnosis of COVID-19, is under investigation for COVID-19, or is ill with a respiratory illness, regardless of whether the person is fully vaccinated; or

(5) has tested positive for COVID-19 in the last 10 days.

(h) A facility must not prohibit government personnel performing their official duty from entering the facility, unless the individual meets the screening criteria of this section.

(i) If this emergency rule is more restrictive than any minimum standard relating to a prescribed pediatric extended care center, this emergency rule will prevail so long as this emergency rule is in effect.

(j) If an executive order or other direction is issued by the Governor of Texas, the President of the United States, or another applicable authority, that is more restrictive than this emergency rule or any minimum standard relating to a prescribed pediatric extended care center, the prescribed pediatric extended care center must comply with the executive order or other direction.

Filed with the Office of the Secretary of State on March 26, 2021.

TRD-202101332

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: March 29, 2021

Expiration date: July 26, 2021

For further information, please call: (512) 834-4591


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

SUBCHAPTER C. STANDARDS FOR LICENSURE

26 TAC §551.47

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, Intermediate Care Facilities for Individuals with an Intellectual Disability (ICF/IID) or Related Conditions, new §551.47, concerning an emergency rule in response to COVID-19 describing requirements for limited indoor and outdoor visitation in ICF/IID. As authorized by Texas Government Code §2001.034, the Commission 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 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. This emergency rulemaking reflects the continued reopening of the State of Texas. HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this Intermediate Care Facility COVID-19 Response--Expansion of Reopening Visitation.

To protect intermediate care facility residents and the public health, safety, and welfare of the state during the COVID-19 pandemic, HHSC is adopting a new emergency rule to require limited indoor and outdoor visitation in an intermediate care facility. The purpose of the new rule is to describe the requirements related to such visits.

STATUTORY AUTHORITY

The emergency rulemaking is adopted under Texas Government Code §2001.034 and §531.0055, and Texas Health and Safety Code §242.001 and §242.037. 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 §242.037 requires the Executive Commissioner of HHSC to make and enforce rules prescribing minimum standards quality of care and quality of life for nursing facility residents. Texas Health and Safety Code §242.001 states the goal of Chapter 242 is to ensure that nursing facilities in Texas deliver the highest possible quality of care and establish the minimum acceptable levels of care for residents who are living in a nursing facility.

The new rule implements Texas Government Code §531.0055 and Texas Health and Safety Code Chapter 242.

§551.47.Intermediate Care Facility COVID-19 Response--Expansion of Reopening Visitation.

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

(1) Closed window visit--A personal visit between a visitor and an individual during which the individual and visitor are separated by a closed window and the visitor does not enter the building.

(2) COVID-19 negative--The status of 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 in the last 14 days.

(3) COVID-19 positive--The status of a person who has tested positive for COVID-19 and does not yet meet Centers for Disease Control and Prevention (CDC) guidance for the discontinuation of transmission-based precautions.

(4) End-of-life visit--A personal visit between a visitor and an individual who is receiving hospice services or who is at or near the end of life, with or without receiving hospice services, or whose prognosis does not indicate recovery. An end-of-life visit is permitted in all facilities and for all individuals at or near the end of life.

(5) Essential caregiver--A family member or other outside caregiver, including a friend, volunteer, clergy member, private personal caregiver, or court-appointed guardian, who is at least 18 years old and has been designated by the individual or legal representative.

(6) Essential caregiver visit--A personal visit between an individual and an essential caregiver. An essential caregiver visit is permitted for all individuals with any COVID-19 status.

(7) Facility-acquired COVID-19 infection--COVID-19 infection that is acquired after admission in a facility and was not present at the end of the 14-day quarantine period following admission or readmission.

(8) Individual--A person enrolled in the intermediate care facilities for individuals with an intellectual disability or related conditions program.

(9) Indoor visit--A personal visit between an individual and one or more personal visitors that occurs in-person in a dedicated indoor space.

(10) Large intermediate care facility--An intermediate care facility serving 17 or more individuals in one or more buildings.

(11) Open window visit--A personal visit between an individual and a personal visitor during which the individual and personal visitor are separated by an open window.

(12) Outbreak--One or more laboratory confirmed cases of COVID-19 identified in either an individual or paid or unpaid staff.

(13) Outdoor visit--A personal visit between an individual and one or more personal visitors that occurs in-person in a dedicated outdoor space.

(14) Persons providing critical assistance--Providers of essential services, persons with legal authority to enter, family members or friends of individuals at the end of life, and designated essential caregivers.

(15) Persons with legal authority to enter--Law enforcement officers and government personnel performing their official duties.

(16) Physical distancing--Maintaining a minimum of six feet between persons, avoiding gathering in groups in accordance with state and local orders, and avoiding unnecessary physical contact.

(17) Plexiglass indoor visit--A personal visit between an individual and one or more personal visitors, during which the individual and the personal visitor are both inside the facility but within a booth separated by a plexiglass barrier.

(18) PPE--Personal protective equipment.

(19) Providers of essential services--Contract doctors or nurses, home health and hospice workers, health care professionals, contract professionals, clergy members and spiritual counselors, guardianship specialists, advocacy professionals, and individuals operating under the authority of a local intellectual and developmental disability authority or a local mental health authority, whose services are necessary to ensure individual health and safety.

(20) Salon services visit--A personal visit between an individual and a salon services visitor.

(21) Salon services visitor--A barber, beautician, or cosmetologist providing hair care or personal grooming services to an individual.

(22) Small intermediate care facility--An intermediate care facility serving 16 or fewer individuals.

(23) Unknown COVID-19 status--The status of a person who is a new admission or readmission, has spent one or more nights away from the facility, has had known exposure or close contact with a person who is COVID-19 positive, or who is exhibiting symptoms of COVID-19 while awaiting test results.

(24) Vehicle parade--A personal visit between an individual and one or more personal visitors, during which the individual remains outdoors on the intermediate care facility campus, and a personal visitor drives past in a vehicle.

(b) An intermediate care facility must screen all visitors prior to allowing them to enter the facility in accordance with subsection (c) of this section, except emergency services personnel entering the facility or facility campus in an emergency. Visitor screenings must be documented in a log kept at the entrance to the facility, which must include the name of each person screened, the date and time of the screening, and the results of the screening. The visitor screening log may contain protected health information and must be protected in accordance with applicable state and federal law.

(c) Visitors who meet any of the following screening criteria must leave the facility and reschedule the visit:

(1) fever, defined as a temperature of 100.4 Fahrenheit and above, or signs or symptoms of a respiratory infection, such as cough, shortness of breath, or sore throat;

(2) other signs or symptoms of COVID-19, including chills, new or worsening cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, new loss of taste or smell, sore throat, congestion or runny nose, nausea or vomiting, or diarrhea;

(3) any other signs and symptoms as outlined by the CDC in Symptoms of Coronavirus at cdc.gov;

(4) contact in the last 14 days with someone who has a confirmed diagnosis of COVID-19, is under investigation for COVID-19, or is ill with a respiratory illness, regardless of whether the person is fully vaccinated; or

(5) has tested positive for COVID-19 in the last 10 days.

(d) An intermediate care facility must allow persons providing critical assistance, including essential caregivers, and persons with legal authority to enter to enter the facility if they pass the screening in subsection (c) of this section.

(e) A person providing critical assistance who has had contact with an individual with COVID-19 positive or COVID-19 unknown status, but does not meet the CDC definition of close contact or unprotected exposure, must not be denied entry to the facility unless the person providing critical assistance does not pass the screening criteria described in subsection (c)(1) - (3) and (5) of this section, or any other screening criteria based on CDC guidance.

(f) If the facility has offered a complete series of a one- or two-dose COVID-19 vaccine to individuals and staff and documented each individual's choice to vaccinate or not vaccinate, the facility must allow essential caregiver visits, end-of-life visits, indoor visits, and outdoor visits as required by this subsection. If an intermediate care facility fails to comply with the requirements of this section, HHSC may impose licensure remedies in accordance with Subchapter H of this chapter (relating to Enforcement).

(1) A facility may not require a visitor to provide documentation of a COVID-19 negative test or COVID-19 vaccination status as a condition of visitation or to enter the facility.

(2) The following requirements apply to essential caregiver visits.

(A) There may be up to two permanently designated essential caregivers per individual.

(B) Up to two essential caregivers may visit a resident at the same time.

(C) The visit may occur outdoors, in the individual's bedroom, or in another area in the facility that limits visitor movement through the facility and interaction with other individuals and staff.

(D) Essential caregiver visitors do not have to maintain physical distancing between themselves and the individual they are visiting but must maintain physical distancing between themselves and all other individuals and staff.

(E) The individual must wear a facemask or face covering over both the nose and mouth, if tolerated, throughout the visit.

(F) The facility must develop and enforce essential caregiver visitation policies and procedures, which include:

(i) a written agreement that the essential caregiver understands and agrees to follow the applicable policies, procedures, and requirements;

(ii) training each designated essential caregiver on proper PPE usage and infection control measures, hand hygiene, and cough and sneeze etiquette;

(iii) a requirement that the essential caregiver must wear a facemask or face covering and any other appropriate PPE recommended by CDC guidance and the facility's policy while in the facility; for individuals who rely on lip reading or facial cues for communication needs, the essential caregiver may use a face mask with a clear screen over the mouth;

(iv) expectations regarding using only designated entrances and exits as directed, if applicable; and

(v) limiting visitation to the area designated by the facility in accordance with subparagraph (C) of this paragraph.

(G) An intermediate care facility must:

(i) inform the essential caregiver of applicable policies, procedures, and requirements;

(ii) approve the essential caregiver visitor's facemask or face covering and any other appropriate PPE recommended by CDC guidance and the facility's policy, or provide an approved facemask or face covering and other appropriate PPE;

(iii) maintain documentation of the essential caregiver's agreement to follow the applicable policies, procedures and requirements;

(iv) maintain documentation of the essential caregiver's training as required in subparagraph (F)(ii) of this paragraph;

(v) maintain documentation of the identity of each essential caregiver in the individual's records and verify the identity of the essential caregiver at the time of each visit; and

(vi) maintain a record of each essential caregiver visit, including:

(I) the date and time of the arrival and departure of the essential caregiver visitor;

(II) the name of the essential caregiver visitor;

(III) the name of the individual being visited; and

(IV) attestation that the identity of the essential caregiver visitor was confirmed; and

(vii) prevent visitation by the essential caregiver visitor if the essential caregiver has signs and symptoms of COVID-19 or an active COVID-19 infection.

(H) The facility may cancel the essential caregiver visit if the essential caregiver fails to comply with the facility's policy regarding essential caregiver visits or applicable requirements in this section.

(3) To permit indoor visitation, a large intermediate care facility must:

(A) have separate areas, units, wings, halls, or buildings designated for COVID-19 positive, COVID-19 negative, and unknown COVID-19 status individual cohorts; and

(B) ensure staff are designated to work with only one individual cohort and the designation does not change from one day to another.

(4) An intermediate care facility must provide instructional signage throughout the facility and proper visitor education regarding:

(A) the signs and symptoms of COVID-19;

(B) infection control precautions; and

(C) other applicable facility practices (e.g., use of facemasks and other appropriate PPE, specified entries and exits, routes to designated areas, and hand hygiene).

(5) The following limits apply to all visitation allowed under this section.

(A) Visitation appointments must be scheduled to allow time for cleaning and sanitization of the visitation area between visits.

(B) Except as provided in subparagraph (C) of this paragraph, indoor visits and outdoor visits are permitted only for individuals who are COVID-19 negative.

(C) Essential caregiver visits and end-of-life visits are permitted for individuals who have COVID-19 negative, COVID-19 positive, or unknown COVID-19 status.

(D) An individual may choose to have close or personal contact with their visitor during the visit. The visitor must maintain physical distancing between themselves and all other persons in the facility.

(E) Visits are permitted where adequate space is available as necessary to ensure physical distancing between visitation groups and safe infection prevention and control measures, including the individual's room. The facility must limit the movement of the visitor through the facility to ensure interaction with other persons in the facility is minimized.

(F) The visitor must wear a facemask or face covering over both the mouth and nose throughout the visit. For individuals who rely on lip reading or facial cues for communication needs, the visitor may use a face mask with a clear screen over the mouth.

(G) The facility must encourage the individual to wear a facemask or face covering over both the nose and mouth, if tolerated, throughout the visit. The individual may remove their facemask or face covering to eat or drink during the visit.

(H) A facility must ensure equal access by all individuals to visitors and essential caregivers.

(I) Cleaning and disinfecting the visitation area, furniture, and all other items must be performed, per CDC guidance, before and after each visit.

(J) A facility must ensure a comfortable and safe outdoor visitation area for outdoor visits, considering outside air temperature and ventilation.

(K) A facility must provide hand-washing stations, or hand sanitizer, to the visitor and individual before and after visits.

(L) The visitor and the individual must practice hand hygiene before and after the visit.

(g) If the facility has not offered a complete series of a one- or two-dose COVID-19 vaccine to individuals, the facility must allow limited personal visitation, as described in this subsection, upon meeting the qualifications described in paragraph (3) of this subsection. These criteria are not required for a closed window visit, an end-of-life visit, or an essential caregiver visit as defined in subsections (a)(1), (4), and (6) of this section. If an intermediate care facility fails to comply with the requirements of this section, HHSC may impose licensure remedies in accordance with Subchapter H of this chapter (relating to Enforcement).

(1) A facility may not require a visitor to provide documentation of a COVID-19 negative test or COVID-19 vaccination status as a condition of visitation or to enter the facility.

(2) The following requirements apply to essential caregiver visits.

(A) There may be up to two permanently designated essential caregiver visitors per individual.

(B) Only one essential caregivers at a time may visit an individual.

(C) The visit may occur outdoors, in the individual's bedroom, or in another area in the facility that limits visitor movement through the facility and interaction with other individuals and staff.

(D) Essential caregiver visitors do not have to maintain physical distancing between themselves and the individual they are visiting but must maintain physical distancing between themselves and all other individuals and staff.

(E) The individual must wear a facemask or face covering over both the nose and mouth, if tolerated, throughout the visit.

(F) The facility must develop and enforce essential caregiver visitation policies and procedures, which include:

(i) a written agreement that the essential caregiver understands and agrees to follow the applicable policies, procedures, and requirements;

(ii) training each designated essential caregiver on proper PPE usage and infection control measures, hand hygiene, and cough and sneeze etiquette;

(iii) the essential caregiver wearing a facemask or face covering, and any other appropriate PPE recommended by CDC guidance and the facility's policy while in the facility; for individuals who rely on lip reading or facial cues for communication needs, the essential caregiver may use face masks with a clear screen over the mouth;

(iv) expectations regarding using only designated entrances and exits as directed, if applicable; and

(v) limiting visitation to the area designated by the facility in accordance with subparagraph (C) of this paragraph.

(G) An intermediate care facility must:

(i) inform the essential caregiver visitor of applicable policies, procedures, and requirements;

(ii) approve the essential caregiver visitor's facemask or face covering and any other appropriate PPE recommended by CDC guidance and the facility's policy, or provide an approved facemask or face covering and other appropriate PPE;

(iii) maintain documentation of the essential caregiver visitor's agreement to follow the applicable policies, procedures and requirements;

(iv) maintain documentation of the essential caregiver visitor's training as required in subparagraph (F)(ii) of this paragraph;

(v) document the identity of each essential caregiver in the individual's records and verify the identity of the essential caregiver by creating an essential caregiver visitor badge; and

(vi) maintain a record of each essential caregiver visit, including:

(I) the date and time of the arrival and departure of the essential caregiver visitor;

(II) the name of the essential caregiver visitor;

(III) the name of the individual being visited; and

(IV) attestation that the identity of the essential caregiver visitor was confirmed; and

(vii) prevent visitation by the essential caregiver visitor if the essential caregiver has signs and symptoms of COVID-19 or an active COVID-19 infection.

(H) The facility may cancel the essential caregiver visit if the essential caregiver fails to comply with the facility's policy regarding essential caregiver visits or applicable requirements in this section.

(3) To allow limited personal visitation in accordance with paragraph (7) of this subsection, an intermediate care facility must submit a completed HHSC Long-term Care Regulation (LTCR) form 2195, COVID-19 Status Attestation Form, including a facility map indicating which areas, units, wings, halls, or buildings accommodate COVID-19 negative, COVID-19 positive, and unknown COVID-19 status individuals, to the Regional Director in the LTCR Region where the facility is located. A facility with previous approval for visitation designation does not have to submit Form 2195 and a facility map, unless the previous visitation approval has been withdrawn, rescinded, or cancelled. To receive a facility visitation designation, an intermediate care facility must demonstrate:

(A) there are separate areas, which include enclosed rooms such as bedrooms or activities rooms, units, wings, halls, or buildings designated for individual cohorts who are COVID-19 positive, COVID-19 negative, or unknown COVID-19 status;

(B) separate dedicated staff are working exclusively in the separate areas, units, wings, halls, or buildings for individuals who are COVID-19 positive, COVID-19 negative, or unknown COVID-19 status;

(C) there have been no confirmed COVID-19 cases for at least 14 consecutive days in staff working in the area, unit, wing, hall, or building that accommodates individuals who are COVID-19 negative;

(D) there have been no facility-acquired COVID-19 confirmed cases for at least 14 consecutive days in individuals in the COVID-19 negative area, unit, wing, hall, or building;

(E) staff are designated to work with only one individual cohort and the designation does not change from one day to another;

(F) evidence upon HHSC request of daily screening for staff and individuals, if a testing strategy is not used; and

(G) if an intermediate care facility has had previous cases of COVID-19 in staff or individuals in the area, unit, wing, hall, or building that accommodates individuals who are COVID-19 negative, LTCR may conduct a verification survey to confirm the following:

(i) all staff and individuals in the COVID-19 negative area, unit, wing, hall, or building have fully recovered;

(ii) the intermediate care facility has adequate staffing to continue care for all individuals and administer visits permitted by this section; and

(iii) the intermediate care facility is in compliance with infection control requirements and emergency rules related to COVID-19.

(4) A small intermediate care facility that cannot provide separate areas, units, wings, halls, or buildings for individuals who are COVID-19 positive, COVID-19 negative, or unknown COVID-19 status must demonstrate:

(A) there have been no confirmed COVID-19 cases for at least 14 consecutive days in staff;

(B) there have been no facility-acquired COVID-19 confirmed cases for at least 14 consecutive days in individuals; and

(C) if an intermediate care facility has had previous cases of COVID-19 in staff or individuals, LTCR may conduct a verification survey and confirm the following:

(i) all staff and individuals have fully recovered;

(ii) the intermediate care facility has adequate staffing to continue care for all individuals and administer visits permitted by this section; and

(iii) the intermediate care facility is in compliance with infection control requirements and emergency rules related to COVID-19.

(5) An intermediate care facility that does not meet the criteria in paragraphs (3) or (4) of this subsection, to receive a visitation designation must:

(A) permit closed window visits and visits by persons providing critical assistance, including essential caregiver visits and end-of-life visits;

(B) develop and implement a plan describing the steps the facility intends to take to meet the visitation designation; and

(C) submit the plan to the Regional Director in the LTCR Region where the facility is located within five business days of submitting the form or of receiving notification from HHSC that the intermediate care facility was not approved for visitation designation.

(6) An intermediate care facility may request exemption from the requirements in this section that a facility with a visitation designation must allow certain personal visits. Facilities may not request, and HHSC will not approve, an exemption from closed window visits or visits by persons providing critical assistance, including essential caregivers and end-of-life visits. If the intermediate care facility determines it is unable to meet one or more of the other visitation requirements of this section, the facility must request exemption from that requirement and explain its inability to meet the visitation requirement on the COVID-19 Status Attestation Form. HHSC will notify the intermediate care facility if a temporary exemption for a specific visit type is granted and the time period for exemption.

(7) An intermediate care facility must provide instructional signage throughout the facility and proper visitor education regarding:

(A) the signs and symptoms of COVID-19 signs;

(B) infection control precautions; and

(C) other applicable facility practices (e.g., use of facemask or other appropriate PPE, specified entries and exits, routes to designated visitation areas, and hand hygiene).

(8) Except if approved by HHSC for an exemption under paragraph (6) of this subsection, an intermediate care facility with a facility visitation designation must allow outdoor visits, open window visits, vehicle parades, and plexiglass indoor visits involving individuals and personal visitors. The following requirements apply to all visitation allowed under this subsection, and all other visitation types as specified:

(A) Open window visits, vehicle parades, outdoor visits, and plexiglass indoor visits are permitted as can be accommodated by the facility only for individuals who are COVID-19 negative.

(B) Closed window visits, end-of-life visits, and essential caregiver visits are permitted for individuals who are COVID-19 negative, COVID-19 positive, or unknown COVID-19 status as can be accommodated by the facility.

(C) Physical contact between individuals and visitors is prohibited, except for essential caregiver visits and end-of-life visits.

(D) Visits are permitted only where adequate space is available that meets the criteria and when adequate staff are available to comply with this section. Essential caregiver visits and end-of-life visits can take place in the individual's room or other area of the facility separated from other individuals. The facility must limit the movement of the visitor through the facility to ensure interaction with other individuals is minimized.

(E) The visitor must wear a facemask or face covering over both the mouth and nose throughout the visit, except visitors participating in a vehicle parade or closed window visit.

(F) The individual must wear a facemask or face covering over both the mouth and nose, if tolerated, throughout the visit.

(G) The facility must remind personal visitors and individuals about physical distancing of at least six feet and face mask or face covering requirements, either verbally or with a notice posted visible to personal visitors or handed to them. The facility must limit the number of visitors and individuals in the visitation area as needed to ensure physical distancing is maintained. Essential caregiver and end-of-life visitors do not have to maintain physical distancing between themselves and the individual they are visiting, but they must maintain physical distancing between themselves and all other individuals, staff, and other visitors.

(H) Cleaning and disinfecting the visitation area, furniture, and all other items must be performed, per CDC guidance, before and after each visit. The facility must schedule visits as necessary to allow time for sanitization between visits.

(I) The facility must ensure a comfortable and safe outdoor visiting area for outdoor visits, open window visits, and vehicle parades, considering outside air temperatures, weather conditions, and ventilation.

(J) For outdoor visits, the facility must designate an outdoor area for visitation that is separated from individuals and limits the ability of the visitor to interact with individuals.

(K) A facility must provide hand washing stations or hand sanitizer to the visitor and individual before and after visits, except visitors participating in a vehicle parade or closed window visit.

(L) The visitor and the individual must practice hand hygiene before and after the visit, except visitors participating in a vehicle parade or closed window visit.

(9) The following requirements apply to vehicle parades.

(A) Visitors must remain in their vehicles throughout the parade.

(B) The intermediate care facility must ensure physical distancing of at least six feet is maintained between individuals throughout the parade.

(C) The intermediate care facility must ensure individuals are not closer than 10 feet to the vehicles for safety reasons.

(D) The facility must encourage individuals to wear a facemask or face covering over both the mouth and nose, if tolerated, throughout the visit.

(10) The following requirements apply to plexiglass indoor visits.

(A) The plexiglass barrier must be installed in an area where it does not impede a means of egress, does not impede or interfere with any fire safety equipment or system, and minimizes access to the rest of the facility or contact between personal visitors and other individuals.

(B) Prior to using the booth, the facility must submit for approval a photo of the plexiglass visitation booth and its location in the facility to the Life Safety Code Program Manager in the LTCR Region in which the facility is located and must receive approval from HHSC.

(C) The visit must be supervised by facility staff for the duration of the visit.

(D) The individual must wear a facemask or face covering over both the mouth and nose, if tolerated, throughout the visit.

(E) The visitor must wear a facemask or face covering over both the mouth and nose throughout the visit.

(F) The facility shall limit the number of visitors and individuals in the visitation area as needed.

(h) A facility may allow a salon services visitor to enter the facility to provide services to an individual only if:

(1) the salon services visitor passes the screening described in subsection (c) of this section;

(2) the salon services visitor agrees to comply with the most current version of the Minimum Standard Health Protocols - Checklist for Cosmetology Salons/Hair Salons, located on open.texas.gov; and

(3) the requirements of subsection (i) of this section are met.

(i) The following requirements apply to salon services visits.

(1) A salon services visit may be permitted for all individuals with COVID-19 negative status

(2) The visit may occur outdoors, in the individual's bedroom, or in another area in the facility that limits visitor movement through the facility and interaction with other persons in the facility.

(3) Salon services visitors do not have to maintain physical distancing between themselves and each individual they are visiting, but they must maintain physical distancing between themselves and all other persons in the facility.

(4) The individual must wear a facemask or face covering over both the mouth and nose, if tolerated, throughout the visit.

(5) The intermediate care facility must develop and enforce salon services visitation policies and procedures, which include:

(A) a testing strategy for salon services visitors;

(B) a written agreement that the salon services visitor understands and agrees to follow the applicable policies, procedures, and requirements;

(C) training each salon services visitor on proper PPE usage and infection control measures, hand hygiene, and cough and sneeze etiquette;

(D) the salon services visitor must wear a facemask and any other appropriate PPE recommended by CDC guidance and the facility's policy while in the facility;

(E) expectations regarding using only designated entrances and exits, as directed; and

(F) limiting visitation to the area designated by the facility, in accordance with paragraph (2) of this subsection.

(6) The intermediate care facility must:

(A) inform the salon services visitor of applicable policies, procedures, and requirements;

(B) approve the visitor's facemask or provide an approved facemask;

(C) maintain documentation of the salon services visitor's agreement to follow the applicable policies, procedures and requirements;

(D) maintain documentation of the salon services visitor's training, as required in paragraph (5)(C) of this subsection;

(E) document the identity of each salon services visitor in the facility's records and verify the identity of the salon services visitor;

(F) maintain a record of each salon services visit, including:

(i) the date and time of the arrival and departure of the salon services visitor;

(ii) the name of the salon services visitor;

(iii) the name of the individual being visited; and

(iv) attestation that the identity of the salon services visitor was confirmed; and

(G) prevent visitation by the salon services visitor if the individual has an active COVID-19 infection.

(7) The facility may cancel the salon services visit if the salon services visitor fails to comply with the facility's policy regarding salon services visits or applicable requirements in this section.

(j) If, at any time after facility visitation designation is approved by HHSC, the area, unit, wing, hall, or building accommodating individuals who are COVID-19 negative, or facility-wide for small intermediate care facilities that received visitation designation in accordance with subsection (g)(5) of this section, experiences an outbreak of COVID-19, the facility must notify the Regional Director in the LTCR Region where the facility is located that the area, unit, wing, hall, building or facility no longer meets visitation criteria, and all visit types authorized under the facility's visitation designation, including outdoor visits, open window visits, vehicle parades, and indoor plexiglass visits, must be cancelled until the area, unit, wing, hall, building or facility meets the criteria described in subsection (g)(4) or (5) of this section and visitation approval is provided by HHSC.

(k) If an intermediate care facility fails to comply with the requirements of this section, HHSC may rescind the visitation designation and may impose licensure remedies in accordance with Subchapter H of this chapter (relating to Enforcement).

(l) If an executive order or other direction is issued by the Governor of Texas, the President of the United States, or another applicable authority, that is more restrictive than this rule or any minimum standard relating to a facility, the facility must comply with the executive order or other direction.

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 24, 2021.

TRD-202101303

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: March 24, 2021

Expiration date: July 21, 2021

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


CHAPTER 553. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES

SUBCHAPTER K. COVID-19 EMERGENCY RULE

26 TAC §553.2003

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 26, Texas Administrative Code, Chapter 553, Licensing Standards for Assisted Living Facilities, Subchapter K, COVID-19 Emergency Rule, new §553.2003, an emergency rule in response to COVID-19 describing requirements for limited indoor and outdoor visitation in a facility. 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--Expansion of Reopening Visitation.

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 limited indoor and outdoor visitation in an assisted living facility. The purpose of the new rule is to describe the requirements related to such visits.

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 HHSC. Texas Health and Safety Code §247.025 and §247.026 require the Executive Commissioner of HHSC to adopt rules necessary to implement Chapter 247 and to adopt rules prescribing minimum standards to protect the health and safety of assisted living facility residents.

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

§553.2003.Assisted Living Facility COVID-19 Response--Expansion of Reopening Visitation.

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

(1) Closed window visit--A personal visit between a personal visitor and a resident during which the resident and personal visitor are separated by a closed window and the personal visitor does not enter the facility.

(2) COVID-19 negative--The status of a person who has either tested negative for COVID-19, is not exhibiting symptoms of COVID-19, and has had no known exposure to the virus in the last 14 days.

(3) COVID-19 positive--The status of a person who has tested positive for COVID-19 and does not yet met the Centers for Disease Control and Prevention (CDC) guidance for the discontinuation of transmission-based precautions.

(4) End-of-life visit--A personal visit between a personal visitor and a resident who is receiving hospice services or who is at or near the end of life, with or without receiving hospice services, or whose prognosis does not indicate recovery. An end-of-life visit is permitted for all residents at or near the end of life.

(5) Essential caregiver--A family member or other outside caregiver, including a friend, volunteer, clergy member, private personal caregiver, or court-appointed guardian, who is at least 18 years old and has been designated by the resident or legal representative.

(6) Essential caregiver visit--A personal visit between a resident and an essential caregiver. An essential caregiver visit is permitted for all residents with any COVID-19 status.

(7) Facility-acquired COVID-19 infection--COVID-19 infection that is acquired after admission in a facility and was not present at the end of the 14-day quarantine period following admission or readmission.

(8) Indoor visit--A personal visit between a resident and one or more personal visitors that occurs in-person in a dedicated indoor space.

(9) Open window visit--A personal visit between a resident and a personal visitor during which the resident and personal visitor are separated by an open window.

(10) Outbreak--One or more laboratory confirmed cases of COVID-19 identified in either a resident or paid or unpaid staff.

(11) Outdoor visit--A personal visit between a resident and one or more personal visitors that occurs in-person in a dedicated outdoor space.

(12) Persons providing critical assistance--Providers of essential services, persons with legal authority to enter, and family members or friends of residents at the end of life, and designated essential caregivers.

(13) Persons with legal authority to enter--Law enforcement officers, representatives of the long-term care ombudsman's office, and government personnel performing their official duties.

(14) Physical distancing--Maintaining a minimum of six feet between persons, avoiding gathering in groups in accordance with state and local orders, and avoiding unnecessary physical contact.

(15) Plexiglass indoor visit--A personal visit between a resident and one or more personal visitors, during which the resident and the personal visitor are both inside the facility but within a booth separated by a plexiglass barrier.

(16) PPE--Personal protective equipment.

(17) Providers of essential services--Contract doctors or nurses, home health and hospice workers, health care professionals, contract professionals, and clergy members and spiritual counselors, whose services are necessary to ensure resident health and safety.

(18) Salon services visit--A personal visit between a resident and a salon services visitor.

(19) Salon services visitor--A barber, beautician, or cosmetologist providing hair care or personal grooming services to a resident.

(20) Unknown COVID-19 status--The status of a person who is a new admission or readmission, has spent one or more nights away from the facility, has had known exposure or close contact with a person who is COVID-19 positive, or who is exhibiting symptoms of COVID-19 while awaiting test results.

(21) Vehicle parade--A personal visit between a resident and one or more personal visitors, during which the resident remains outdoors on the facility's property and a personal visitor drives past in a vehicle.

(b) An assisted living facility must screen all visitors prior to allowing them to enter the facility in accordance with subsection (c) of this section, except emergency services personnel entering the facility or facility campus in an emergency. Visitor screenings must be documented in a log kept at the entrance to the facility, which must include the name of each person screened, the date and time of the screening, and the results of the screening. The visitor screening log may contain protected health information and must be protected in accordance with applicable state and federal law.

(c) Visitors who meet any of the following screening criteria must leave the facility and reschedule the visit:

(1) fever, defined as a temperature of 100.4 Fahrenheit and above, or signs or symptoms of a respiratory infection, such as cough, shortness of breath, or sore throat;

(2) other signs or symptoms of COVID-19, including chills, new or worsening cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, new loss of taste or smell, sore throat, congestion or runny nose, nausea or vomiting, or diarrhea;

(3) any other signs and symptoms as outlined by the CDC in Symptoms of Coronavirus at cdc.gov;

(4) contact in the last 14 days with someone who has a confirmed diagnosis of COVID-19, is under investigation for COVID-19, or is ill with a respiratory illness, regardless of whether the person is fully vaccinated; or

(5) has tested positive for COVID-19 in the last 10 days.

(d) An assisted living facility must allow persons providing critical assistance, including essential caregivers, and persons with legal authority to enter to enter the facility if they pass the screening subsection (c) of this section.

(e) A person providing critical assistance who has had contact with a person with COVID-19 positive or COVID-19 unknown status, but does not meet the CDC definition of close contact or unprotected exposure, must not be denied entry to the facility unless the person providing critical assistance does not pass the screening criteria described in subsection (c)(1) - (3) and (5) of this section, or any other screening criteria based on CDC guidance.

(f) If the facility has offered a complete series of a one- or two-dose COVID-19 vaccine to residents and staff and documented each resident's choice to vaccinate or not vaccinate, the facility must allow essential caregiver visits, end-of-life visits, indoor visits, and outdoor visits as required in this subsection. If a facility fails to comply with the requirements of this subsection, HHSC may take action in accordance with Subchapter H of this chapter (relating to Enforcement).

(1) A facility may not require a visitor to provide documentation of a COVID-19 negative test or COVID-19 vaccination status as a condition of visitation or to enter the facility.

(2) The following requirements apply to essential caregiver visits.

(A) There may be up to two permanently designated essential caregiver visitors per resident.

(B) Up to two essential caregivers may visit a resident at the same time.

(C) The visit may occur outdoors, in the resident's bedroom, or in another area in the facility that limits the visitor movement through the facility and interaction with other residents and staff.

(D) Essential caregiver visitors do not have to maintain physical distancing between themselves and the resident they are visiting but must maintain physical distancing between themselves and all other residents and staff.

(E) The resident must wear a facemask or face covering over both the mouth and nose, if tolerated, throughout the visit.

(F) The facility must develop and enforce essential caregiver visitation policies and procedures, which include:

(i) a written agreement that the essential caregiver understands and agrees to follow the applicable policies, procedures, and requirements;

(ii) training each essential caregiver on proper PPE usage and infection control measures, hand hygiene, and cough and sneeze etiquette;

(iii) a requirement that the essential caregiver must wear a facemask or face covering and any other appropriate PPE recommended by CDC guidance and the facility's policy while in the facility;

(iv) expectations regarding using only designated entrances and exits as directed, if applicable; and

(v) limiting visitation to the area designated by the facility in accordance with subparagraph (C) of this paragraph.

(G) An assisted living facility must:

(i) inform the essential caregiver of applicable policies, procedures, and requirements;

(ii) approve the essential caregiver's facemask or face covering and any other appropriate PPE recommended by CDC guidance and the facility's policy, or provide an approved facemask or face covering and other appropriate PPE;

(iii) maintain documentation of the essential caregiver's agreement to follow the applicable policies, procedures, and requirements;

(iv) maintain documentation of the essential caregiver's training as required in subparagraph (F)(ii) of this paragraph;

(v) maintain documentation of the identity of each essential caregiver in the resident's records and verify the identity of the essential caregiver at the time of each visit; and

(vi) maintain a record of each essential caregiver visit, including:

(I) the date and time of the arrival and departure of the essential caregiver visitor;

(II) the name of the essential caregiver visitor;

(III) the name of the resident being visited; and

(IV) attestation that the identity of the essential caregiver visitor was confirmed; and

(vii) prevent visitation by the essential caregiver visitor if the essential caregiver visitor has signs and symptoms of COVID-19 or an active COVID-19 infection.

(H) The facility may cancel the essential caregiver visit if the essential caregiver fails to comply with the facility's policy regarding essential caregiver visits or applicable requirements in this section.

(3) To permit indoor visitation an assisted living facility must:

(A) have separate areas, which include enclosed rooms such as bedrooms, or activities rooms, units, wings, halls, or buildings, designated for COVID-19 positive, COVID-19 negative, and unknown COVID-19 status resident cohorts; and

(B) ensure separate staff are designated to work with only one resident cohort and the designation does not change from one day to another.

(4) An assisted living facility must provide instructional signage throughout the facility and proper visitor education regarding:

(A) the signs and symptoms of COVID-19;

(B) infection control precautions; and

(C) other applicable facility practices (e.g., use of facemasks and other appropriate PPE, specified entries and exits, routes to designated visitation areas, and hand hygiene).

(5) The following limits apply to all visitation allowed under this subsection.

(A) Visitation appointments must be scheduled to allow time for cleaning and sanitization of the visitation area between visits.

(B) Except as provided in subparagraph (C) of this paragraph, indoor visits and outdoor visits are permitted only for residents who are COVID-19 negative.

(C) Essential caregiver visits and end-of-life visits are permitted for residents who have COVID-19 negative, COVID-19 positive, or unknown COVID-19 status.

(D) A resident may choose to have close or personal contact with their visitor during the visit. The visitor must maintain physical distancing between themselves and all other persons in the facility.

(E) Visits are permitted where adequate space is available as necessary to ensure physical distancing between visitation groups and safe infection prevention and control measures, including the resident's room. The facility must limit the movement of the visitor through the facility to ensure interaction with other persons in the facility is minimized.

(F) The visitor must wear a facemask or face covering over both the mouth and nose throughout the visit.

(G) The facility must encourage the resident to wear a facemask or face covering over both the mouth and nose, if tolerated, throughout the visit. The resident may remove their facemask or face covering to eat or drink during the visit.

(H) A facility must ensure equal access by all residents to visitors and essential caregivers.

(I) Cleaning and disinfecting the visitation area, furniture, and all other items must be performed, per CDC guidance, before and after each visit.

(J) A facility must ensure a comfortable and safe outdoor visitation area for outdoor visits, considering outside air temperature and ventilation.

(K) A facility must provide hand washing stations, or hand sanitizer, to the visitor and resident before and after visits.

(L) The visitor and the resident must practice hand hygiene before and after the visit.

(g) If the facility has not offered a complete series of a one- or two-dose COVID-19 vaccine to residents, the facility must allow limited personal visitation as described in this subsection upon meeting the qualifications described in paragraph (3) of this subsection. These criteria are not required for a closed window visit, an end-of-life visit, or an essential caregiver visit as defined in subsection (a)(1), (4), and (6) of this section. If a facility fails to comply with the requirements of this subsection, HHSC may take action in accordance with Subchapter H of this chapter (relating to Enforcement).

(1) A facility may not require a visitor to provide documentation of a COVID-19 negative test or COVID-19 vaccination status as a condition of visitation or to enter the facility.

(2) The following requirements apply to essential caregiver visits.

(A) There may be up to two permanently designated essential caregivers per resident.

(B) Only one essential caregiver visitor at a time may visit a resident.

(C) The visit may occur outdoors, in the resident's bedroom, or in another area in the facility that limits visitor movement through the facility and interaction with other residents and staff.

(D) Essential caregiver visitors do not have to maintain physical distancing between themselves and the resident they are visiting but must maintain physical distancing between themselves and all other residents and staff.

(E) The resident must wear a facemask or face covering over both the mouth and nose, if tolerated, throughout the visit.

(F) The facility must develop and enforce essential caregiver visitation policies and procedures, which include:

(i) a written agreement that the essential caregiver understands and agrees to follow the applicable policies, procedures, and requirements;

(ii) training each essential caregiver on proper PPE usage and infection control measures, hand hygiene, and cough and sneeze etiquette;

(iii) a requirement that the essential caregiver must wear a facemask or face covering and any other appropriate PPE recommended by CDC guidance and the facility's policy while in the facility;

(iv) expectations regarding using only designated entrances and exits as directed, if applicable; and

(v) limiting visitation to the area designated by the facility in accordance with subparagraph (C) of this paragraph.

(G) An assisted living facility must:

(i) inform the essential caregiver visitor of applicable policies, procedures, and requirements;

(ii) approve the essential caregiver visitor's facemask or face covering and any other appropriate PPE recommended by CDC guidance and the facility's policy, or provide an approved facemask or face covering and other appropriate PPE;

(iii) maintain documentation of the essential caregiver's agreement to follow the applicable policies, procedures, and requirements;

(iv) maintain documentation of the essential caregiver's training as required in subparagraph (F)(ii) of this paragraph;

(v) maintain documentation of the identity of each essential caregiver visitor in the resident's records and verify the identity of the essential caregiver visitor at the time of each visit;

(vi) maintain a record of each essential caregiver visit, including:

(I) the date and time of the arrival and departure of the essential caregiver visitor;

(II) the name of the essential caregiver visitor;

(III) the name of the resident being visited; and

(IV) attestation that the identity of the essential caregiver visitor was verified; and

(vii) prevent visitation by the essential caregiver visitor if the essential caregiver has signs and symptoms of COVID-19 or active COVID-19 infection.

(H) The facility may cancel the essential caregiver visit if the essential caregiver fails to comply with the facility's policy regarding essential caregiver visits or applicable requirements in this section.

(3) To allow limited personal visitation in accordance with paragraph (8) of this subsection, a facility must submit a completed HHSC Long-term Care Regulation (LTCR) form 2196, COVID-19 Status Attestation form, including a facility map indicating which areas accommodate COVID-19 negative, COVID-19 positive, and unknown COVID-19 status residents, to the Regional Director in the LTCR Region where the facility is located. A facility with previous approval for visitation does not have to submit Form 2196 and a facility map, unless the previous visitation approval has been withdrawn, rescinded, or cancelled. To receive a facility visitation designation, an assisted living facility must demonstrate that:

(A) there are separate areas, which include enclosed rooms such as bedrooms or activities rooms, units, wings, halls, or buildings designated for resident cohorts who are COVID-19 positive, COVID-19 negative or unknown COVID-19 status;

(B) separate dedicated staff are working exclusively in the separate areas, units, wings, halls, or buildings for residents who are COVID-19 positive, COVID-19 negative or unknown COVID-19 status;

(C) there have been no confirmed COVID-19 cases for at least 14 consecutive days in staff working in the area, unit, wing, hall, or building that accommodates residents who are COVID-19 negative;

(D) there have been no facility-acquired COVID-19 confirmed cases for at least 14 consecutive days in residents in the COVID-19 negative area, unit, wing, hall, or building;

(E) staff are designated to work with only one resident cohort and the designation does not change from one day to another;

(F) evidence upon HHSC request of daily screening for staff and residents, if a testing strategy is not used; and

(G) if an assisted living facility has had previous cases of COVID-19 in staff or residents in the area, unit, wing, hall, or building that accommodates residents who are COVID-19 negative, LTCR may conduct a verification survey to confirm the following:

(i) all staff and residents in the COVID-19 negative area, unit, wing, hall, or building have fully recovered;

(ii) the assisted living facility has adequate staffing to continue care for all residents and administer visits permitted by this section; and

(iii) the assisted living facility is in compliance with infection control requirements and emergency rules related to COVID-19.

(4) A small assisted living facility that cannot provide separate areas, including enclosed rooms such as bedrooms or activities rooms, units, wings, halls, or buildings for residents who are COVID-19 positive, COVID-19 negative, or unknown COVID-19 status must demonstrate:

(A) there have been no confirmed COVID-19 cases for at least 14 consecutive days in staff;

(B) there have been no facility-acquired COVID-19 confirmed cases for at least 14 consecutive days in residents; and

(C) if an assisted living facility has had previous cases of COVID-19 in staff or residents, LTCR may conduct a verification survey and confirm the following:

(i) all staff and residents have fully recovered;

(ii) the assisted living facility has adequate staffing to continue care for all residents and administer visits permitted by this section; and

(iii) the assisted living facility is in compliance with infection control requirements and emergency rules related to COVID-19.

(5) An assisted living facility that does not meet the criteria in paragraphs (3) or (4) of this subsection to receive a visitation designation, must:

(A) permit closed window visits and visits by persons providing critical assistance, including essential caregiver visits and end-of-life visits;

(B) develop and implement a plan describing the steps the facility intends to take in order to meet the criteria; and

(C) submit the plan to the Regional Director in the LTCR Region where the facility is located within five business days of submitting the form or of receiving notification from HHSC that the facility was not approved for visitation designation.

(6) An assisted living facility may request exemption from requirements of this section that a facility with a visitation designation allow certain personal visits. Facilities may not request, and HHSC will not approve, an exemption from closed window visits or visits by persons providing critical assistance, including essential caregivers and end-of-life visits. If the assisted living facility determines it is unable to meet one or more of the other visitation requirements of this section, the facility must request exemption from that requirement and explain its inability to meet the visitation requirement on the COVID-19 Status Attestation Form. HHSC will notify the assisted living facility if a temporary exemption for a specific visit type is granted and the time period for exemption.

(7) An assisted living facility must provide instructional signage throughout the facility and proper visitor education regarding:

(A) the signs and symptoms of COVID-19 signs;

(B) infection control precautions; and

(C) other applicable facility practices (e.g., use of facemask or other appropriate PPE, specified entries and exits, routes to designated visitation areas, and hand hygiene).

(8) Except if approved by HHSC for an exemption under paragraph (6) of this subsection, an assisted living facility with a facility visitation designation must allow outdoor visits, open window visits, vehicle parades, and plexiglass indoor visits involving residents and personal visitors. The following requirements apply to all visitation required under this subsection, and other visitation types as specified:

(A) Open window visits, vehicle parades, outdoor visits, and plexiglass indoor visits are permitted as can be accommodated by the facility only for residents who are COVID-19 negative.

(B) Closed window visits, end-of-life visits, and essential caregiver visits are permitted for residents who are COVID-19 negative, COVID-19 positive, or unknown COVID-19 status as can be accommodated by the facility.

(C) Physical contact between residents and visitors is prohibited, except for essential caregiver visits and end-of-life visits.

(D) Visits are permitted only where adequate space is available that meets the criteria and when adequate staff are available to comply with this section. Essential caregiver visits and end-of-life visits can take place in the resident's room or other area of the facility separated from other residents. The facility must limit the movement of the visitor through the facility to ensure interaction with other residents is minimized.

(E) The visitor must wear a facemask or face covering over both the mouth and nose throughout the visit, except visitors participating in a vehicle parade or closed window visit.

(F) The resident must wear a facemask or face covering over both the mouth and nose, if tolerated, throughout the visit.

(G) The facility must remind personal visitors and residents about physical distancing of at least six feet and face mask or face covering requirements either verbally or with a notice posted visible to personal visitors or handed to them. The facility must limit the number of visitors and residents in the visitation area as needed to ensure physical distancing is maintained. Essential caregiver and end-of-life visitors do not have to maintain physical distancing between themselves and the resident they are visiting, but they must maintain physical distancing between themselves and all other residents, staff, and other visitors.

(H) Cleaning and disinfecting the visitation area, furniture, and all other items must be performed, per CDC guidance, before and after each visit. The facility must schedule visits as necessary to allow time for sanitization between visits.

(I) The facility must ensure a comfortable and safe outdoor visiting area for outdoor visits, open window visits, and vehicle parades, considering outside air temperatures, weather conditions, and ventilation.

(J) For outdoor visits, the facility must designate an outdoor area for visitation that is separated from residents and limits the ability of the visitor to interact with residents.

(K) A facility must provide hand washing stations or hand sanitizer to the visitor and resident before and after visits, except visitors participating in a vehicle parade or closed window visit.

(L) The visitor and the resident must practice hand hygiene before and after the visit, except visitors participating in a vehicle parade or closed window visit.

(9) The following requirements apply to vehicle parades.

(A) Visitors must remain in their vehicles throughout the parade.

(B) The facility must encourage physical distancing of at least six feet between residents throughout the parade.

(C) The facility must prohibit residents from being closer than 10 feet to the vehicles for safety reasons.

(D) The facility must encourage residents to wear a facemask or face covering over both the mouth and nose, if tolerated, throughout the parade.

(10) The following requirements apply to plexiglass indoor visits.

(A) The plexiglass barrier must be installed in an area where it does not impede a means of egress, does not impede or interfere with any fire safety equipment or system, and minimizes access to the rest of the facility and contact between personal visitors and other residents.

(B) Prior to using the booth, the facility must submit for approval a photo of the plexiglass visitation booth and its location in the facility to the Life Safety Code Program Manager in the LTCR Region in which the facility is located and must receive approval from HHSC.

(C) The visit must be supervised by facility staff for the duration of the visit.

(D) The resident must wear a facemask or face covering over both the mouth and nose, if tolerated, throughout the visit.

(E) The visitor must wear a facemask or face covering over both the mouth and nose throughout the visit.

(F) The facility shall limit the number of visitors and residents in the visitation area as needed.

(h) A facility may allow a salon services visitor to enter the facility to provide services to a resident only if:

(1) the salon services visitor passes the screening described in subsection (c) of this section;

(2) the salon services visitor agrees to comply with the most current version of the Minimum Standard Health Protocols - Checklist for Cosmetology Salons/Hair Salons, located on website: open.texas.gov; and

(3) the requirements of subsection (i) of this section are met.

(i) The following requirements apply to salon services visits.

(1) A salon services visit may be permitted for all residents with COVID-19 negative status.

(2) The visit may occur outdoors, in the resident's bedroom, or in another area in the facility that limits visitor movement through the facility and interaction with other persons in the facility.

(3) Salon services visitors do not have to maintain physical distancing between themselves and each resident they are visiting, but they must maintain physical distancing between themselves and all other persons in the facility.

(4) The resident must wear a facemask or face covering over both the mouth and nose, if tolerated, throughout the visit.

(5) The facility must develop and enforce salon services visitation policies and procedures, which include:

(A) a testing strategy for salon services visitors;

(B) a written agreement that the salon services visitor understands and agrees to follow the applicable policies, procedures, and requirements;

(C) training each salon services visitor on proper PPE usage and infection control measures, hand hygiene, and cough and sneeze etiquette;

(D) the salon services visitor must wear a facemask and any other appropriate PPE recommended by CDC guidance and the facility's policy while in the facility.

(E) expectations regarding using only designated entrances and exits as directed; and

(F) limiting visitation to the area designated by the facility in accordance with paragraph (2) of this subsection.

(6) The assisted living facility must:

(A) inform the salon services visitor of applicable policies, procedures, and requirements;

(B) approve the visitor's facemask or provide an approved facemask;

(C) maintain documentation of the salon services visitor's agreement to follow the applicable policies, procedures and requirements;

(D) maintain documentation of the salon services visitor's training as required in paragraph (5)(C) of this subsection;

(E) document the identity of each salon services visitor in the facility's records and verify the identity of the salon services visitor; and

(F) maintain a record of each salon services visit, including:

(i) the date and time of the arrival and departure of the salon services visitor;

(ii) the name of the salon services visitor;

(iii) the name of the resident being visited; and

(iv) attestation that the identity of the salon services visitor was confirmed; and

(G) prevent visitation by the salon services visitor if the resident has an active COVID-19 infection.

(7) The facility may cancel the salon services visit if the salon services visitor fails to comply with the facility's policy regarding salon services visits or applicable requirements in this section.

(j) If, at any time after facility visitation designation is approved by HHSC, the area, unit, wing, hall, or building accommodating residents who are COVID-19 negative, or facility-wide for small assisted living facilities that received visitation designation in accordance with subsection (g)(4) of this section, experiences an outbreak of COVID-19, the facility must notify the Regional Director in the LTCR Region where the facility is located that the area, unit, wing, hall, building or facility no longer meets visitation criteria, and all visit types authorized under the facility's visitation designation, including outdoor visits, open window visits, vehicle parades, and indoor plexiglass visits, must be cancelled until the area, unit, wing, hall, building or facility meets the criteria described in subsection (g)(3) or (4) of this section.

(k) If an assisted living fails to comply with the requirements of this section, HHSC may rescind the visitation designation and may impose licensure remedies in accordance with Subchapter H of this chapter (relating to Enforcement).

(l) If an executive order or other direction is issued by the Governor of Texas, the President of the United States, or another applicable authority, that is more restrictive than this rule or any minimum standard relating to a facility, the facility must comply with the executive order or other direction.

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 24, 2021.

TRD-202101302

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: March 24, 2021

Expiration date: July 21, 2021

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


CHAPTER 558. LICENSING STANDARDS FOR HOME AND COMMUNITY SUPPORT SERVICES AGENCIES

SUBCHAPTER I. RESPONSE TO COVID-19 AND PANDEMIC-LEVEL COMMUNICABLE DISEASE

26 TAC §558.960

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 26 Texas Administrative Code, Chapter 558, Licensing Standards for Home and Community Support Services Agencies, new §558.960, concerning an emergency rule in response to COVID-19 in order to reduce the risk of transmission of COVID-19. As authorized by Texas Government Code §2001.034, the Commission 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 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 critical 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 HCSSA Response to COVID-19.

To protect clients served by home and community support services agencies (HCSSA) and the public health, safety, and welfare of the state during the COVID-19 pandemic, HHSC is adopting an emergency rule to require screening of staff, clients, and household members for COVID-19 and offer alternative methods to provide non-essential services.

STATUTORY AUTHORITY

The emergency rulemaking is adopted under Texas Government Code §2001.034 and §531.0055 and Texas Health and Safety Code §142.012. 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 §142.012, authorizes the Executive Commissioner of HHSC to adopt rules necessary to implement Chapter 142 of the Texas Health and Safety Code, concerning Home and Community Support Services. Texas Health and Safety Code §142.012, authorizes the Executive Commissioner of HHSC to adopt rules governing minimum standards for home and community support services agencies that are necessary to protect the public.

The new section implements Texas Government Code §531.0055 and Texas Health and Safety Code §142.012.

§558.960.Emergency Rule for HCSSA Response to COVID-19.

(a) Based on state law and federal guidance, the Texas Health and Human Services Commission (HHSC) finds COVID-19 to be a health safety risk and requires a home and community support services agency (HCSSA) to take the following measures. The screening required by this section does not apply to emergency services personnel entering an agency in an emergency situation.

(b) For the purposes of this section, personal protective equipment means specialized clothing or equipment worn by agency staff for protection against transmission of infectious diseases such as COVID-19, including surgical or N95 masks, goggles, gloves, and disposable gowns.

(c) Agency staff have legal authority to enter a facility licensed under Health and Safety Code Chapters 242, 247, or 252, or Human Resources Code Chapter 103, to provide services to the facility's residents who are agency clients. Agency staff entering a licensed facility must follow the infection control protocols of the facility including COVID-19 testing requirements.

(d) An agency must screen its staff and must not allow staff to remain in the agency, enter a licensed facility, or make home visits if the employee, volunteer or contractor meets one or more of the following screening criteria:

(1) fever defined as a temperature of 100.4 Fahrenheit and above, or by the most current Centers for Disease Control and Prevention (CDC) guidance relating to fever or signs or symptoms of a respiratory infection;

(2) signs or symptoms of COVID-19, including chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, new loss of taste or smell, sore throat, congestion or runny nose, nausea or vomiting, or diarrhea;

(3) additional signs and symptoms as outlined by the CDC in Symptoms of Coronavirus at cdc.gov; or

(4) contact in the last 14 days, unless to provide critical assistance in a licensed facility or essential services through the HCSSA, with someone who has a confirmed diagnosis of COVID-19, is under investigation for COVID-19, or is ill with a communicable respiratory illness.

(e) The agency must determine if a scheduled home visit requires essential services or non-essential services.

(1) Essential services include a service that must be delivered to ensure the client's health and safety, such as nursing services, therapies, medication administration, assisting with self-administered medications and other personal care tasks, wound care, transfer, or ambulation. This is determined on a case-by-case basis and according to the client's need for the service on the day of the scheduled visit in accordance with the plan of care, care plan or individualized service plan (ISP).

(2) If the visit requires non-essential services, the visit:

(A) must be conducted by phone or video conference, if possible; or

(B) must be rescheduled for a later date.

(3) If the visit requires essential services, staff must conduct the visit in person and screen the client and household members using the same criteria for staff that is described in subsection (d) of this section and proceed as described below.

(A) If the client or a member of the household meet one or more of the screening criteria, use appropriate personal protective equipment during the visit.

(B) If the client or a member of the household does not meet one or more of the screening criteria, conduct the visit as indicated for the type of service provided.

(4) An agency must document any missed visits in the plan of care, care plan, or ISP and notify the attending physician or practitioner, if applicable.

(f) Providers of essential services include HCSSA employees and contractors, including but not limited to physicians, nurses, hospice aides, home health aides, attendants, social workers, therapists, spiritual counselors, and volunteers in any of those roles.

(g) A parent agency administrator or alternate administrator, or supervising nurse or alternate supervising nurse may make the monthly supervisory visit required for branch supervision by §558.321(d)(1) of this chapter (relating to Standards for Branch Offices) or as required for alternative delivery site by §558.322(c)(1) of this chapter (relating to Standards for Alternate Delivery Sites) by virtual communication, such as video or telephone conferencing systems.

(h) A hospice registered nurse may make the supervisory visit required for hospice aides in §558.842(d) of this chapter (relating to Hospice Aide Services) by virtual communication, such as video or telephone conferencing systems.

(i) If this emergency rule is more restrictive than any minimum standard relating to a home and community support services agency, this emergency rule will prevail so long as this emergency rule is in effect.

(j) If an executive order or other direction is issued by the Governor of Texas, the President of the United States, or another applicable authority, that is more restrictive than this emergency rule or any minimum standard relating to a home and community support services agency, the home and community support services agency must comply with the executive order or other direction.

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 26, 2021.

TRD-202101333

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: March 29, 2021

Expiration date: July 26, 2021

For further information, please call: (512) 834-4591


CHAPTER 559. DAY ACTIVITY AND HEALTH SERVICES REQUIREMENTS

SUBCHAPTER D. LICENSURE AND PROGRAM REQUIREMENTS

26 TAC §559.65

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 559, Day Activity and Health Services Requirements, new §559.65, concerning an emergency rule in response to COVID-19 in order to reduce the risk of transmission of COVID-19. As authorized by Texas Government Code §2001.034, the Commission 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 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 Day Activity and Health Services Response to COVID-19 - Screening and Activities.

To protect day activity and health services clients and the public health, safety, and welfare of the state during the COVID-19 pandemic, HHSC is adopting an emergency rule to update screening requirements in accordance with Centers for Disease Control and Prevention guidance for those persons authorized to enter a day activity and health services facility. In addition, the emergency rule allows for the entry of volunteers who pass screening and receive appropriate training in infection control and prevention to enter the facility to assist with facility-coordinated activities.

STATUTORY AUTHORITY

The emergency rulemaking is adopted under Texas Government Code §2001.034 and §531.0055 and Texas Human Resources Code §103.004 and §103.005. 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 Human Resources Code §103.004 authorizes the Executive Commissioner of HHSC to adopt rules implementing Texas Human Resources Code Chapter 103, concerning Day Activity and Health Services Facilities. Texas Human Resources Code §103.005 authorizes the Executive Commissioner of HHSC to adopt rules governing the standards for safety and sanitation of a licensed day activity and health services facility.

The new section implements Texas Government Code §531.0055 and Texas Human Resources Code Chapter 103.005.

§559.65.Emergency Rule for Day Activity and Health Services Response to COVID-19 - Screening and Activities.

(a) Based on state law and federal guidance, the Texas Health and Human Services Commission (HHSC) finds COVID-19 to be a health and safety risk and requires a day activity and health services facility to take the following measures. The screening required by this section does not apply to emergency services personnel entering the facility in an emergency situation.

(b) In this section:

(1) providers of essential services include contract doctors, contract nurses, contract healthcare workers, spiritual clergy, volunteers assisting with facility-coordinated group activities and home health workers whose services are necessary to ensure client health and safety;

(2) persons with legal authority to enter include law enforcement officers and government personnel performing their official duties; and

(3) persons providing critical assistance include providers of essential services and persons with legal authority to enter.

(c) A day activity and health services facility must take the temperature of every person upon arrival and must not allow a person with a fever as described in subsection (e) of this section to enter or remain in the facility.

(d) A day activity and health services facility must prohibit visitors, except as provided in subsection (e) of this section.

(e) A day activity and health services facility may allow entry of persons providing critical assistance, including volunteers assisting with facility-coordinated group activities, unless the person meets one or more of the following screening criteria:

(1) fever, defined as a temperature of 100.4 Fahrenheit and above, or by the most current Centers for Disease Control and Prevention (CDC) guidance;

(2) signs or symptoms of COVID-19, including chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, new loss of taste or smell, sore throat, congestion or runny nose, nausea or vomiting, or diarrhea;

(3) additional signs and symptoms as outlined by the CDC in Symptoms of Coronavirus at cdc.gov;

(4) contact in the last 14 days, unless to provide critical assistance, with someone who has a confirmed diagnosis of COVID-19, someone who is under investigation for COVID-19, or someone who is ill with a respiratory illness, regardless of whether or not the person has been fully vaccinated; or

(5) has tested positive for COVID-19 in the last 10 days.

(f) A facility must not prohibit government personnel performing their official duty from entering the facility, unless the individual meets the above screening criteria.

(g) A facility may offer facility-coordinated group activities as well as allow volunteers to enter the facility to assist with the activities. Facilities that allow volunteers to enter the facility to assist with activities must ensure the following:

(1) volunteers must be trained on proper infection and prevention control standards;

(2) volunteers must pass all screening requirements, as outlined in subsection (e) of this section and must be overseen by facility staff; and

(3) volunteers must adhere to the same personal protective equipment requirements as staff.

(h) Facilities must execute a written agreement with all volunteers documenting training requirements and facility policies regarding infection and prevention control standards.

(i) If this emergency rule is more restrictive than any minimum standard relating to a day activity and health services facility, this emergency rule will prevail so long as this emergency rule is in effect.

(j) If an executive order or other direction is issued by the Governor of Texas, the President of the United States, or another applicable authority, that is more restrictive than this emergency rule or any minimum standard relating to a day activity and health services facility, the day activity and health services facility must comply with the executive order or other direction.

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 26, 2021.

TRD-202101362

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: March 29, 2021

Expiration date: July 26, 2021

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