SECTION 559.42. Safety

(a) Environmental safety.

(1) The physical plant safety requirements are designed to provide safety to the clients, participants, or adult individuals receiving day care.

(2) The facility must conform to all applicable state laws and local ordinances pertaining to occupancy. When these laws, codes, and ordinances are more stringent than the standards in this section, the more stringent requirements govern. If state laws or local codes or ordinances conflict with the requirements of these standards, DADS' Regulatory Services Licensing and Credentialing Section will be so informed so that these conflicts may be legally resolved.

(3) The facility must meet the provisions and requirements concerning accessibility for individuals with disabilities in the following laws and regulations: the Americans with Disabilities Act (ADA) of 1990 (Title 42, United States Code, Chapter 126); Title 28, Code of Federal Regulations, Part 35; Texas Government Code, Chapter 469, Elimination of Architectural Barriers; and 16 TAC, Chapter 68, Elimination of Architectural Barriers. Plans for new construction, substantial renovations, modifications, and alterations must be submitted to the Texas Department of Licensing and Regulation (Attn: Elimination of Architectural Barriers Program) for accessibility approval under Texas Government Code, Chapter 469. At least 50% of the client restrooms must be in accordance with ADA. Exception: Facilities licensed for 45 or fewer persons may provide one unisex restroom in accordance with accessibility requirements.

(4) DADS' jurisdiction extends beyond the licensed facility when the licensed area is only a part of a building or floor that is not fire-separated in accordance with the Life Safety Code, NFPA 101, 2000 edition, §16.1.2, New Day-Care Centers, or Life Safety Code, NFPA 101, 2000 edition, §17.1.2, Existing Day-Care Centers with Mixed Occupancies.

(b) Life Safety Code, NFPA 101, 2000 edition.

(1) The principles of the Life Safety Code, NFPA 101, 2000 edition, under Chapter 16 for new day-care centers or Chapter 17 for existing day-care centers, and operating features under §16.7 or §17.7, must be used in establishing life safety requirements for adult day care facilities, with the interpretation and exceptions as listed in paragraphs (2) and (3) of this subsection. Chapter 16 of the Life Safety Code, NFPA 101, 2000 edition, is applicable to new construction, conversions of existing unlicensed buildings, remodeling, and additions conducted after April 1, 2007. Chapter 17 of the Life Safety Code, NFPA 101, 2000 edition, is applicable to existing adult day-care facilities licensed before April 1, 2007. Life safety features and equipment installed in existing buildings that are now in excess of what is required by the Life Safety Code, NFPA 101, 2000 edition, must continue to be maintained or may be completely removed if prior written approval is obtained from DADS.

(2) Interpretations of the Life Safety Code, NFPA 101, 2000 edition, chapters 16 and 17, are as follows:

(A) The principles of chapters 16 and 17 apply to any size facility requiring licensing with four or more clients or participants.

(B) The principles of §16.1.4.2 and §17.1.4.2 relating to a building or portion thereof used less than 24 hours per day to house more than three adults requiring care, maintenance, and supervision by other than a relative apply to all facilities requiring licensing. A client must be ambulatory or semi-ambulatory and must not be bedridden. A client must not exhibit behavior that is harmful to the client or others.

(C) The manual fire alarm system and automatic smoke detection system must be installed in accordance with NFPA 72 National Fire Alarm Code series and state fire marshal licensing requirements.

(D) The facility must have a program to inspect, test, and maintain the fire alarm system and must execute the program at least once every six months.

(i) The facility must contract with a company that is registered by the State Fire Marshal's Office to execute the program.

(ii) The person who performs a service under the contract must be licensed by the State Fire Marshal's Office to perform the service and must complete, sign, and date an inspection form similar to the inspection and testing form in NFPA 72 for a service provided under the contract.

(iii) The facility must ensure fire alarm system components that require visual inspection are visually inspected in accordance with NFPA 72.

(iv) The facility must ensure fire alarm system components that require testing are tested in accordance with the NFPA 72.

(v) The facility must ensure fire alarm system components that require maintenance are maintained in accordance with NFPA 72.

(vi) The facility must ensure smoke dampers are inspected and tested in accordance with NFPA 101, 2000 edition.

(vii) The facility must maintain onsite documentation of compliance with this subsection and have available for examination by DADS, operation and maintenance manuals, and a written sequence of operation.

(E) If the facility has a complete NFPA 13 system, the facility must have a program to inspect, test, and maintain the sprinkler system and must execute the program at least once every six months.

(i) The facility must contract with a company that is registered by the State Fire Marshal's Office to execute the program.

(ii) The person who performs a service under the contract must be licensed by the State Fire Marshal's Office to perform the service and must complete, sign, and date an inspection form similar to the inspection and testing form in NFPA 25 for a service provided under the contract.

(iii) The facility must ensure sprinkler system components that require visual inspection are visually inspected in accordance with NFPA 13 and 25.

(iv) The facility must ensure sprinkler system components that required testing are tested in accordance with the NFPA 13 and 25.

(v) The facility must ensure sprinkler system components that require maintenance are maintained in accordance with NFPA 13 and 25.

(vi) The facility must ensure that individual sprinkler heads are inspected and maintained in accordance with NFPA 13 and 25.

(vii) The facility must maintain onsite documentation of compliance with this subsection and have available for examination by DADS as built drawings, operation and maintenance manuals, and a written sequence of operation.

(F) All facilities must follow the Life Safety Code, NFPA 101, 2000 edition, chapters 16 or 17, including the following:

(i) If a center is located in a building containing mixed occupancies, the occupancies must be separated by one-hour fire barriers.

(ii) Each floor occupied by clients must have access to two remote exits in accordance with Chapter 7, Means of Egress.

(I) Doors in the means of egress must be equipped with hardware that opens with a single motion.

(II) Doors must swing in the direction of egress for occupant loads greater than 50 occupants.

(iii) Every room or space normally subject to client occupancy, other than bathrooms or any room with attended individual clients, must have at least one outside window for emergency rescue or ventilation. Such window must be able to be opened from the inside without the use of tools and provide a clear opening of not less than 20 inches in width, 24 inches in height, and 5.7 sq. ft. (821 sq. in.) in area (minimum width of 20 inches by 41.2 inches high and minimum height of 24 inches by 34.2 inches wide). The bottom of the opening must be not more than 44 inches (112 cm.) above the floor. In rooms located greater than three stories above grade, the openable clear height, width, and area of the window may be modified to the dimensions necessary for ventilation. Exceptions are:

(I) buildings protected throughout by an approved, supervised automatic sprinkler system in accordance with §9.7;

(II) rooms or spaces with a door leading directly to the outside of the building; or

(III) in existing facilities, rooms smaller than 250 square feet.

(iv) Interior finish in stairways, corridors, and lobbies must be Class A. All other walls and ceilings must be Class A or Class B interior finish in accordance with Life Safety Code, NFPA 101, 2000 edition, §10.2.3. Flame spread is the rate of fire travel along the surface of a material. (This is different from other requirements for time-rated "burn through" resistance ratings such as one-hour rated.) Flame spread ratings are Class A (0-25), Class B (26-75), and Class C (76-200).

(v) Floor finish materials within corridors and exits must be Class I or Class II in accordance with §10.2.7 in new construction or new installations of flooring. Replacement or newly installed floor finish materials must be Class I or II. Existing floor finish materials in good condition may remain in use in accordance with §10.2.

(vi) A smoke detection system must be installed in accordance with §9.6 with placement of detectors in each story in front of the doors to the stairways and in the corridors of all floors occupied by the day-care occupancy. Detectors also must be installed in lounges, recreation areas, dining areas, and sleeping rooms in the center

(vii) Fire department notification must be accomplished in accordance with §9.6.4, except in day-care centers with not more than 100 clients.

(3) Exceptions to the Life Safety Code, NFPA 101, 2000 edition, chapters 16 or 17, are as follows.

(A) All required smoke detectors must be powered by the facility electrical system and be interconnected with the fire alarm system.

(B) Reference to apartment buildings in §16.1.2 or §17.1.2 must be deleted. Any floor above or below the floor of exit discharge that is used by semi-ambulatory clients, or those whose disability prevents them from taking appropriate action for self-preservation in emergencies, must be provided with smoke compartmentation.

(C) Emergency lighting is not required for means of egress if the facility operation is during daylight hours and if natural light, direct or borrowed, is provided so that the means of egress is usable in emergencies.

(D) Special protective electrical receptacle covers are not required.

(E) NFPA 96, Standard for Ventilation Control and Fire Protection of Commercial Cooking Operations, is not applicable if the facility has residential-type cooking equipment.

(F) Public corridors must not be used for return or supply air systems.

(G) Residential-type heating units or heating units designed for attic installations must not be considered to be units requiring furnace room construction as specified under §16.3.2.1 or §17.3.2.1.

(H) New additions or remodeling must be as required for new construction in accordance with paragraph (4) of this subsection.

(I) Sprinkler system for a janitor's closet as specified under §16.3.2.1 or §17.3.2.1 is not required unless the building has a complete NFPA 13 system.

(4) For new construction, DADS requires conformance to the following codes, except that DADS may accept other nationally recognized codes that are locally enforced.

(A) If the municipality has a building code and a plumbing code, then those codes govern in those areas of construction. Where local codes or ordinances are applicable, the most restrictive parts concerning the same subject item apply unless otherwise determined by the authority having jurisdiction for local codes and the licensing agency.

(B) In the absence of local municipal codes or ordinances, nationally recognized codes must be used, such as the International Building Code and the compatible International Codes published by the International Code Council. These nationally recognized codes, when used, must all be publications of the same group or organization to assure the intended continuity.

(C) Heating, ventilating, and air-conditioning (HVAC) systems must be designed and installed in accordance with NFPA 90A and NFPA 90B, as applicable, and the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE), except as may be modified in this subchapter. Buildings required to meet NFPA 90A must have automatic shutdown upon initiation of the fire alarm system, in accordance with NFPA 90A, §4.4.

(D) Electrical and illumination systems must be designed and installed in accordance with NFPA 70 and the Lighting Handbook of the Illuminating Engineering Society (IES) of North America, except as may be modified in this subchapter.

(i) Minimum illumination must be 20 foot candles in the toilets, bathing, and general use areas, such as living areas, dining areas, corridors, and lobbies.

(ii) Minimum illumination must be 50 foot candles in the kitchen, medication or food preparation areas, and activity areas for handicrafts or reading.

(5) An existing building either occupied as an adult day care facility at the time of initial inspection by DADS, or converted to occupancy as an adult day care facility, must meet all local requirements pertaining to the building for that occupancy. DADS may require the facility sponsor or licensee to submit evidence that local requirements are satisfied.

(6) Adult day care facilities must be of recognized permanent type construction as distinguished from movable buildings or construction. Buildings must be structurally sound with regard to actual or expected dead, live, and wind loads. DADS may require submission of evidence to this effect. Foundations must be permanent, structurally sound for local soil conditions, and in good repair. A letter from a registered professional engineer may be required as validation of a permanent and structurally sound foundation.

(7) The walking surface in a facility and at the exit discharge must be consistent, nominally level, and without abrupt changes in elevation, trip hazards, or gaps. Floor surfaces may be on different elevations if connected with ramps or steps in accordance with the Life Safety Code, NFPA 101, 2000 edition, means of egress chapter.

(8) DADS will consider a written request from the facility for a waiver of requirements which, if strictly applied, would clearly be impractical in DADS' judgment for existing buildings and structures that have been converted to adult day care occupancy. Any of these modifications will be allowed only to the extent that reasonable life safety against the hazards of fire, explosion, structural, or other building failure and panic are provided and maintained.

(c) Personal safety.

(1) Fire safety.

(A) The facility must maintain an onsite copy of the annual fire marshal inspection report by the local fire marshal.

(B) Storage items must be neatly arranged and placed in the facility to minimize fire hazard. Gasoline, volatile materials, paint, and similar products must not be stored in the building housing clients unless approved by the local fire marshal. Accumulations of extraneous material and refuse are not permitted in the facility.

(C) The building must be kept in good repair.

(D) The facility's electrical, mechanical, heating, and cooling systems must be maintained in a safe manner and in working order. DADS may require the facility sponsor or licensee to submit evidence to this effect, consisting of a report from the fire marshal or city or county building official having jurisdiction or a report from a registered professional engineer.

(E) Electrical appliances, devices, and lamps used in the facility must be used in a manner that prevents overloaded circuits.

(F) If the facility uses extension cords in excess of six feet, they must be shielded or protected.

(G) Smoking regulations must be established and enforced by the facility and conspicuously posted in the facility.

(i) All smoking must be supervised.

(ii) The facility must prohibit smoking in any room, ward, or compartment where flammable liquids, combustible gas, or oxygen are used or stored and in any other hazardous location. The facility must post a "No Smoking" sign in these areas.

(iii) Ashtrays of noncombustible material and safe design must be provided in all areas where smoking is permitted.

(iv) Metal containers of substantial gauge or any UL- or FM-approved containers with self- closing cover devices into which ashtrays can be emptied must be provided in all areas where smoking is permitted.

(H) The facility must have an emergency fire lane for access of fire apparatus if required by local authorities.

(I) An initial pressure test of facility gas lines from the meter must be provided. Additional pressure tests are required when the facility has major renovations or additions during which the gas service is interrupted. Testing must be performed by a person licensed with the State Board of Plumbing Examiners.

(J) The facility must have all gas heating systems checked for proper operation and safety before the heating season by a person licensed by the Texas Department of Licensing and Regulation to perform maintenance work on gas-fired equipment. Any unsatisfactory conditions must be corrected promptly.

(K) Curtains or draperies in public spaces and individual rooms in which smoking is allowed must be flame retardant.

(L) Portable fire extinguishers of appropriate type and placed in the appropriate location must be provided by the facility in accordance with NFPA 10.

(M) The facility must inspect and maintain portable fire extinguishers.

(i) Portable fire extinguishers must be visually inspected monthly by facility staff. Facility staff conducting the monthly visual inspection must assure portable fire extinguishers are protected from damage, kept on their mounting brackets or in cabinets at all times, and kept in proper condition and working order.

(ii) Portable fire extinguishers must be inspected and maintained at least once every 12 months in accordance with NFPA 10 by a person licensed by the State Fire Marshal's office, to include hydrostatic testing as recommended by the manufacturer.

(iii) A record of all fire extinguisher inspections and maintenance performed must be kept onsite by the facility.

(N) Garbage, waste, or trash containers provided for kitchens, janitor closets, laundries, mechanical or boiler rooms, general storage, and similar places must be made of metal or any UL- or FM-approved material, having a close fitting cover. Disposable plastic liners may be used in these containers for sanitation.

(2) General requirements.

(A) All exterior site conditions must be designed, constructed, and maintained in the interest of clients' safety. Newly constructed ramps must not exceed 1:12 slope. Ramps, walks, and steps must be of slip-resistive texture and be smooth and uniform, without irregularities. Guard rails, fences, and hand rails must be provided as required.

(B) All stairways must have substantial hand rails properly secured.

(C) Tubs or showers for client use must have non-slip bottoms or floor surfaces, either built in or applied to the surface.

(D) Elevators for client use must be in safe operating condition.

(E) An adequate supply of hot water must be provided. The hot water system connected to all client-use fixtures must deliver warm water no hotter than 120 degrees Fahrenheit at the fixture. Hot water for other sanitary usages must be provided at the temperatures required for the appliance or fixture served, or for the operation involved.

(F) There must be no occupancies or activities adversely affecting the safety of the clients in the buildings or on the premises of the facility.

(G) Licensure capacity will be calculated at 40 square feet per client. This space may not include the kitchen/food service area, rest rooms, bath areas, office, corridors, stairways, storage areas, and outdoor space. Facilities licensed before October 1, 2000, will be allowed to meet the requirements in effect before October 1, 2000, of 35/50 square feet for ambulatory and semi- ambulatory clients. If a facility licensed before October 1, 2000, chooses to increase its capacity, changes ownership, or relocates, the facility will be required to meet the current standards for usable space, outdoor area, and rooms for privacy.

(H) An office area must be provided in a central location to record and maintain files for each client.

(I) An area for rest, other than the treatment and/or exam room, must be provided with a sufficient number of reclining lounge chairs or beds to accommodate the needs of clients.

(J) The facility must provide a separate room or rooms with beds and with walls from floor to ceiling for those clients who prefer privacy. Facilities licensed on or after May 1, 1999, must ensure that the room(s) with beds provide space for a minimum 5% of the licensed capacity. The usable space in the room(s) must provide not less than 80 square feet per bed for a one-bed room and not less than 60 square feet per bed for multiple-bed rooms. A bedroom shall be not less than eight feet in its smallest dimension, unless otherwise approved by DADS.

(K) The facility must have at least one room available as a treatment or examination room for use by the nursing staff or the client's physician. The client may not be treated or examined in an area other than the treatment room.

(L) The facility must have a safe, secure, and suitable outdoor recreation or relaxation area for clients. This area must be connected to, be a part of, be controlled by, and be directly accessible from the facility. This area must be enclosed by a wall or a fence or located in a courtyard and supervised by staff to prevent wandering and large enough to conduct outdoor activities. A chain- link fence must provide protection on top to prevent injury from wire points. This area must be suitably furnished. A minimum of 20% of the required outdoor space must be shaded. The required outdoor space for facilities licensed on or after May 1, 1999 is:

(i) 400 square feet for facilities up to 59 clients;

(ii) 600 square feet for facilities up to 99 clients; and

(iii) 800 square feet for facilities with 100 or more clients.

Source Note: The provisions of this §559.42 adopted to be effective May 1, 1999, 24 TexReg 3100; amended to be effective November 1, 2000, 25 TexReg 10753; amended to be effective April 1, 2007, 32 TexReg 1749; amended to be effective August 1, 2011, 36 TexReg 4677; transferred effective January 15, 2021, as published in the Texas Register December 18, 2020, 45 TexReg 9249