The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §§97.2, 97.244, 97.256, 97.292, 97.295, 97.298, 97.299, 97.301, 97.403 - 97.405, and 97.602, concerning definitions, administrator qualifications and conditions and supervising nurse qualifications, emergency preparedness planning and implementation, agency and client agreement and disclosure, client transfer or discharge notification requirements, delegation of nursing tasks by registered professional nurses to unlicensed personnel and tasks not requiring delegation, nursing education, licensure and practice, client records, standards specific to agencies licensed to provide hospice services, standards specific to agencies licensed to provide personal assistance services, standards specific to agencies licensed to provide home dialysis services, and administrative penalties; new §97.259 and §97.260, concerning initial educational training in administration of agencies and continuing education in administration of agencies; and the repeal of §97.259, concerning training in administration of agencies, in Chapter 97, Licensing Standards for Home and Community Support Services Agencies.

BACKGROUND AND PURPOSE

The main purpose of the proposed amendments is to clearly specify the requirements for licensed home and community support services agencies (agencies) and hospice facilities to develop, maintain, and implement a comprehensive emergency preparedness and response plan. The amendments are proposed to address the health and safety needs of clients who reside in a residence and clients admitted to or residing in a hospice facility during a disaster.

The proposed amendments on emergency planning were written to conform with the recommendations of DADS' Emergency Task Force; the Governor's Task Force on Evacuation, Transportation, and Logistics; a written report from the United States Government Accountability Office on disaster preparedness for vulnerable populations; and current guidance from the Centers for Medicare and Medicaid Services on emergency preparedness. The recommendations were made in response to the lessons learned by federal, state, and local governments from the devastating hurricane season of 2005 in an effort to improve public health emergency preparedness and response.

The proposed amendments were also written in response to Executive Order RP57, issued by the Governor of the State of Texas on March 21, 2006. This order directed coordination among DADS and other state entities to ensure the safe and efficient evacuation of Texans with special needs in the event of a disaster. This includes developing criteria for evacuation plans for all special needs facilities and ensuring that local jurisdictions approve evacuation plans maintained by special needs facilities.

The proposal changes current emergency rule terminology to be consistent with new and updated terminology related to emergency preparedness.

The proposed amendments also update language and terminology in response to House Bill 2426, 80th Legislature, 2007, which amended the Texas Occupations Code, Chapter 301, to rename the Board of Nurse Examiners the Texas Board of Nursing.

The new sections and repeal are proposed to separate and reorganize initial and continuing educational training requirements for a first-time administrator and alternate administrator.

New §97.259 ensures that any initial training obtained prior to designation is obtained within the 12 months immediately preceding the date of designation to the position, allows a person to obtain the additional 16 hours of training prior to the date of designation, and adds that any of the additional 16 hours of initial training not on topics specified in this section must be on subjects related to the duties of an administrator.

New §97.260 adds documentation requirements for continuing education and adds that any of the 12 hours of continuing education that are not on topics specified in this section must be on subjects related to the duties of an administrator.

Finally, the proposal updates terminology and state agency names and corrects rule cross-references to ensure that the rule reflects changes resulting from the consolidation of health and human services agencies in 2004 and updates the sections to make them consistent with other DADS rules.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §97.2 adds definitions of "community disaster resources," "disaster," "Life Safety Code," "mitigation," "preparedness," "recovery," and "response," and updates references to the Texas Board of Nursing.

The proposed amendment to §97.244 updates references to the Texas Board of Nursing and updates the cross-references to the rule sections in new §97.259 and §97.260.

The proposed amendment to §97.256 requires an agency to have a written emergency preparedness and response plan, based on its required risk assessment, that comprehensively describes its approach to a potential emergency. The amended rule requires an agency to: (1) describe who must be involved in the creation and implementation of the plan; (2) designate an agency employee as a disaster coordinator; (3) develop a continuity of operations plan; (4) include a risk assessment; (5) describe the actions and responsibilities for agency staff in each phase of emergency planning, including mitigation, preparedness, response, and recovery; (6) develop a plan to monitor disaster-related news and information; (7) have procedures for an agency to communicate with staff, clients, state and federal agencies, including DADS, and other healthcare providers and suppliers; (8) discuss disaster-related information with clients; (9) develop procedures to release client information; (10) develop procedures to triage clients; and (11) complete an internal review of the plan at least annually.

The proposed amendment to §97.292 corrects a rule cross-reference.

The proposed amendment to §97.295 corrects a rule cross-reference.

The proposed amendment to §97.298 requires an agency to comply with 22 TAC Chapter 224 (relating to Delegation of Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel for Clients with Acute Conditions or in Acute Care Environments) and 22 TAC, Chapter 225 (relating to RN Delegation to Unlicensed Personnel and Tasks Not Requiring Delegation in Independent Living Environments for Clients with Stable and Predictable Conditions) and updates a reference to the Texas Board of Nursing.

The proposed amendment to §97.299 updates a reference to the Texas Board of Nursing.

The proposed amendment to §97.301 corrects a rule cross-reference.

The proposed amendment to §97.403 states that, in addition to the requirements described in §97.256, a freestanding hospice facility is required to have a written emergency preparedness and response plan that includes: (1) the core functions of direction and control; (2) communication; (3) resource management; (4) sheltering; (5) evacuation; (6) transportation; and (7) training in its written emergency preparedness and response plan. The amendment also updates rule language concerning a client's representative and updates references to the Texas Board of Nursing and DADS.

The proposed amendment to §97.404 updates references to the Texas Board of Nursing and DADS.

The proposed amendment to §97.405 updates terminology related to emergencies, medical emergencies, and emergency preparedness and updates a reference to DADS.

The proposed amendment to §97.602 updates rules references and rule language concerning severity level A and B violations and an agency's emergency preparedness plan requirements and updates a reference to the Texas Board of Nursing.

Proposed new §97.259 requires that any initial educational training obtained prior to designation as a first-time administrator or alternate administrator is obtained within the 12 months immediately preceding the date of designation to the position, allows a person to obtain the additional 16 hours of initial training prior to the date of designation, and adds that any of the additional 16 hours of initial training not on topics specified in this section must be on subjects related to the duties of an administrator.

Proposed new §97.260 adds documentation requirements for continuing education and adds that any of the 12 hours of continuing education that are not on topics specified in this section must be on subjects related to the duties of an administrator.

The proposed repeal of §97.259 deletes the existing rule as part of the reorganization of administrator training requirements.

FISCAL NOTE

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendments, new sections, and repeal are in effect, enforcing or administering the rule proposals does not have foreseeable implications relating to costs or revenues of state or local governments.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that there is no adverse economic effect on small businesses or micro-businesses as a result of enforcing or administering the proposed amendments, because the proposal does not create new requirements, but rather expands and clarifies DADS' requirements concerning an emergency preparedness plan. The proposal will provide agencies with greater detail and clearer direction concerning emergency preparedness plan requirements and initial and continuing educational training requirements for an administrator or alternate administrator.

In addition, the public will benefit from clearer rules concerning the minimum training requirements for administrator or alternate administrator.

PUBLIC BENEFIT AND COSTS

Veronda Durden, DADS Assistant Commissioner for Regulatory Services, has determined that, for each year of the first five years the proposed amendments, new sections, and repeal are in effect, the public benefit expected as a result of enforcing the rule proposals is that agencies will have clearer and easier-to-follow rules concerning emergency preparedness plan requirements. The amendments are proposed to better address the health and safety needs of clients who reside in a residence and clients admitted to or residing in a hospice facility during an emergency.

The public will also benefit from updated and clarified rules that will be more accurate and easier for the public and agencies to use and understand.

In addition, the public will benefit from updated rules concerning initial and continuing training for an administrator or alternate administrator of an agency.

Ms. Durden anticipates that there will not be an economic cost to persons who are required to comply with the proposed amendments, new sections, and repeal. The proposed amendments, new sections, and repeal will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

DADS has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Sylvia Trevino at (361) 878-3419 in DADS' Regulatory Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-045, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be either: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 045" in the subject line.

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Health and Safety Code, Chapter 142, which provides the Aging and Disability Services Council with the authority to make recommendations regarding rules governing licensing and regulation of home and community support services agencies.

The amendment implements Texas Government Code, §531.0055; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §§142.001 - 142.030.