(a) Request for a waiver. A facility may submit a written request to the Hospital Licensing Director, Health Facility Licensing and Compliance Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756 for a waiver or modification of a particular provision of §134.122 or §134.123 of this title (relating to New Construction Requirements and Spatial Requirements for New Construction). Waivers will not be granted for fire safety requirements required by the National Fire Protection Association (NFPA). The written request shall specify the specific provision for which a waiver is requested.
(b) Consideration. In considering the waiver or modification request, the Hospital Licensing Director (HL director) shall consider whether the waiver or modification:
  (1) will adversely affect the health and safety of the facility patients, employees, or the general public;
  (2) will adversely impact the hospital's participation in the federal Medicare program or accreditation by the Joint Commission on Accreditation of Healthcare Organizations or the American Osteopathic Association;
  (3) if not granted, would impose an unreasonable hardship on the facility in providing adequate care for patients;
  (4) will facilitate the creation or operation of the facility; and
  (5) is appropriate when balanced against the best interests of the individuals served or to be served by the facility.
(c) Supporting documentation. The HL director may request written documentation from the facility to support the waiver or modification including, but not limited to:
  (1) a statement addressing each of the criteria in subsection (b) of this section;
  (2) evidence of approval by the local building and fire authorities;
  (3) evidence of provisions in the Act or this chapter which will mitigate any adverse effect of the waiver or modification; and
  (4) evidence of any mitigating act in excess of the Act or this chapter which will be used by the hospital to offset any adverse effect of the waiver or modification.
(d) Written recommendation. The HL director shall submit his written recommendation for granting or denying the waiver to the commissioner of health (commissioner). The HL director's recommendation shall address each of the criteria in subsection (b) of this section.
(e) Granting order. If the HL director recommends that the waiver or modification be granted, the commissioner may issue a written order granting the waiver or modification.
(f) Denial of order. If the HL director recommends that the waiver or modification be denied, the commissioner may issue a written order denying the waiver or modification.
(g) File documentation. The licensing file for the facility maintained by the Texas Department of Health shall contain a copy of the request, the documents requested in subsection (c) of this section (if applicable), the written recommendation of the HL director, and the order.

Source Note: The provisions of this §510.129 adopted to be effective January 1, 2004, 28 TexReg 5154; transferred effective June 1, 2019, as published in the Texas Register May 17, 2019, 44 TexReg 2469