SECTION 260.401. Residential Agreements

(a) During a service planning team meeting to develop an enrollment, a revised, or a renewal IPP, a case manager must inform an individual or LAR of the following if the individual is interested in receiving licensed assisted living:

(1) that if the individual or LAR selects licensed assisted living, the individual or LAR will be responsible for paying the cost of room and board in accordance with a residential agreement described in subsections (b) and (c) of this section;

(2) that if the individual or LAR does not pay room and board as required by a residential agreement, the individual's program provider may evict the individual in accordance with the residential agreement and state law; and

(3) that if the program provider evicts the individual:

(A) the individual will not receive licensed assisted living until the delinquent room and board is paid; and

(B) the IPC will be revised to own home or family home if the delinquent room and board is not paid.

(b) An individual's program provider must ensure that an individual receiving licensed assisted living has a written residential agreement with the program provider.

(c) The residential agreement required by subsection (b) of this section must include:

(1) the physical address of the residence;

(2) the name of the individual;

(3) the name of the program provider;

(4) the beginning date of the residential agreement;

(5) the date the residential agreement expires;

(6) a provision that:

(A) the program provider and the individual or LAR agree that the residential agreement is a "lease," as defined in Texas Property Code Chapter 92 and that they are subject to state law governing residential tenancies, including Texas Property Code Chapters 24, 91, and 92 and the Texas Rules of Civil Procedure Rule 510;

(B) to the extent allowed by law, in the event of a conflict or inconsistency between any provision of the residential agreement and any provision of state statutory law, including Texas Property Code Chapters 91 and 92, the provision in the residential agreement governs;

(C) the individual or LAR is not waiving any right or remedy provided to tenants under state law, including the Texas Fair Housing Act in Texas Property Code Chapter 301, and is not agreeing to any notice period that is shorter than the notice period to which tenants are entitled under state law;

(D) allows the individual to terminate the residential agreement before its expiration date without any obligation under the residential agreement except an obligation that accrued before the date of termination, if the individual permanently moves from the residence for any reason, including transferring to a different program provider;

(E) if the individual permanently moves from the residence, the program provider agrees to refund any amount the individual has paid under the residential agreement for days the individual did not reside in the residence;

(F) an amount refunded under the circumstances described in paragraph (13) of this subsection will be calculated by:

(i) dividing the monthly amount the individual pays under the residential agreement by the number of days in the month; and

(ii) multiplying the quotient from subparagraph (A) of this paragraph by the number of days for which the individual paid but did not reside in the residence;

(G) the individual may furnish and decorate the individual's bedroom;

(H) the program provider agrees to be responsible for all repairs to the residence resulting from normal wear and tear, as defined in Texas Property Code §92.001;

(I) the individual will pay for damages to property in the residence if the individual caused the damage and the damage is not ordinary wear and tear;

(J) allows eviction of the individual only if:

(i) the individual or LAR fails to pay room or board, which does not include any late fee; or

(ii) the individual's DBMD Program services are terminated;

(K) the program provider will, before giving the individual or LAR a notice to vacate, give the individual or LAR a notice of proposed eviction that allows the individual or LAR at least 60 calendar days to pay the delinquent room or board;

(L) if the individual or LAR pays the delinquent room and board within the period required by subparagraph (K) of this paragraph, the program provider will not give the individual or LAR a notice to vacate or otherwise proceed to evict the individual; and

(M) the program provider will not accelerate the entire balance of the unpaid room and board owed under the remainder of the term of the residential agreement if the individual or LAR violates the residential agreement and the violation does not result in an eviction;

(7) the amount the individual or LAR is paying for room and board;

(8) the day of the month that the amount for room and board is due, which must not be before the day of the month an individual receives a primary source of income such as supplemental security income and social security disability insurance;

(9) the amount of a late fee, if any, which may be charged only once per month and must not exceed 10 percent of the amount for room and board, that the program provider may charge the individual or LAR if room and board is not paid by the third day after it is due; and

(10) the signature of the program provider and individual or the LAR.

(d) A program provider must:

(1) give the individual or LAR at least three calendar days to review, request changes, and sign the residential agreement;

(2) ensure the residential agreement is fully executed before the individual begins living in a residence in which licensed assisted living is provided, except that the individual may begin living in such a residence before the residential agreement is fully executed in the event of an emergency;

(3) if an individual begins living in a residence in which licensed assisted living is provided before a residential agreement is fully executed because of an emergency, as allowed by paragraph (2) of this subsection:

(A) document the details of the emergency; and

(B) ensure the residential agreement is fully executed within seven calendar days after the individual begins living in the residence; and

(4) provide one copy of the residential agreement to the individual or LAR within three business days after the date the residential agreement is fully executed.

(e) If a program provider becomes aware that a modification to the provision in the residential agreement that the individual may furnish and decorate the individual's bedroom is needed based on a specific assessed need of an individual, the program provider must:

(1) notify the case manager of the needed modification; and

(2) provide the case manager the documentation described in §260.403(b)(2) of this chapter (relating to Requirements for Program Provider-Owned Residential Settings).

(f) If a case manager receives a notification and documentation as described in subsection (e) of this section, the case manager must convene a meeting of the service planning team to revise the individual's IPP in accordance with §260.403(b) of this chapter.

(g) After the service planning team revises the individual's IPP, as required by subsection (f) of this section, the program provider may implement the modification.

(h) If an individual or LAR is delinquent in payment of room or board and the program provider wants to evict the individual, the program provider must:

(1) notify the case manager that the individual or LAR is delinquent in the payment of room or board under the residential agreement and that the program provider wants to evict the individual;

(2) after providing the notification required by paragraph (1) of this subsection, meet with the individual or LAR, including the representative payee if one has been appointed by the Social Security Administration, and the case manager to discuss the alleged non-payment of room or board and options to prevent an eviction; and

(3) if the program provider intends to proceed to evict the individual, at the meeting required by paragraph (2) of this subsection:

(A) give the individual or LAR a written notice of proposed eviction that allows the individual or LAR at least 60 calendar days to pay the delinquent room and board; and

(B) provide the case manager with a copy of the written notice of proposed eviction.

(i) If the individual or LAR pays the delinquent room or board within the period required by subsection (h)(3) of this section, the program provider must not give the individual or LAR a notice to vacate or otherwise proceed to evict the individual.

(j) If the individual or LAR does not pay the delinquent room and board within the period required by subsection (h)(3) of this section, the program provider:

(1) must report the failure to pay to one of the following as appropriate:

(A) the SSA;

(B) the probate court that appointed the individual's guardian; or

(C) DFPS as an allegation of the LAR's exploitation or neglect of the individual;

(2) must meet with the individual or LAR to discuss alternative living settings for the individual; and

(3) if the program provider wants to proceed to evict the individual, the program provider must:

(A) give the individual or LAR a written notice to vacate the residence in accordance with the residential agreement and state law; and

(B) send a copy of the written notice described in subparagraph (A) of this paragraph to the individual's case manager within one business day after the individual or LAR is given the notice.

(k) If an individual is evicted by a program provider and the individual or LAR has not paid the delinquent room and board, the case manager must convene a meeting or meetings to revise the IPP and revise the IPC as described in §260.77 of this chapter (relating to Renewal and Revision of an IPP and IPC). If the individual or LAR wants to keep licensed assisted living on the individual's IPC, the case manager must inform the individual or LAR at the meeting or meetings that HHSC will deny licensed assisted living if included on the individual's IPC, until the individual pays the delinquent room and board.

(l) If a program provider evicts an individual who has an LAR and the LAR fails to arrange an alternative living setting for the individual, the program provider must report the LAR's failure to DFPS as neglect of the individual and notify the case manager that such report was made.

(m) If an individual pays the delinquent room and board, a program provider must, within one business day after the payment, notify the individual's case manager that the individual is no longer delinquent.

Source Note: The provisions of this §260.401 adopted to be effective February 26, 2023, 48 TexReg 896