The Texas Department of Human Services (DHS) adopts the repeal of §92.18, §92.19, §92.20, §92.41 and §92.82; adopts amendments to §92.2, §92.3, §92.4, §92.10, §92.11, §92.12, §92.15, §92.17, §92.53, §92.61, §92.62, §92.102, §92.123, §92.125, §92.152, §92.153, §92.155, and §92.158; and new §92.18, §92.19, §92.20, §92.21, §92.22, §92.41, §92.64, and §92.82. The repeal of §92.18, §92.19, §92.20, §92.41 and §92.82; the amendments to §92.10, §92.11, §92.12, §92.15, §92.17, §92.53, §92.61, §92.102, §92.125, §92.152, §92.153, §92.155, and §92.158; and new §92.18, §92.19, §92.21, §92.22, and §92.82 are adopted without changes to the proposed text published in the December 31, 1999, issue of the Texas Register (24 TexReg 12031). The amendments to §92.2, §92.3, §92.4, §92.62, §92.123, and new §92.20, §92.41, and §92.64 are adopted with changes to the proposed text. In addition, the department is changing the name of the chapter to "Licensing Standards for Assisted Living Facilities."

Justification for the amendments and new sections is as follows.

Throughout the rules, the term "personal care" was changed to "assisted living" as mandated by Senate Bill 93, 76th Legislature.

The changes to §92.2, regarding "aging in place" and health care professionals providing services within an assisted living facility, were taken directly from Senate Bill 93.

In §92.3, Definitions, the addition of "controlling person" was mandated by Senate Bill 93, and definitions for "disclosure statement" and "health care professional" were necessary because of statutory changes in Senate Bill 93.

In §92.4, Types of Assisted Living Facilities, language regarding Type D facilities, was deleted because Senate Bill 93 excludes facilities operated by the Texas Department of Mental Health and Mental Retardation from the assisted living licensure requirement. An administrative change to §92.4(3)(A)-(B) deleted references to specific dates that are no longer applicable.

In §92.10, Criteria for Licensing, Senate Bill 93 mandated language prohibiting facilities from using the term "assisted living" unless they are licensed as such.

A new section, §92.18, Exclusions, was added, pursuant to Senate Bill 93.

A new section, §92.19, Informal Reconsiderations, was added because the current rules did not contain the requirements regarding informal reconsiderations.

In §92.20, license fees were raised, the amount of the trust fund was raised to $10 million, and fees for plan reviews were added, all pursuant to Senate Bill 93.

The new language in §92.22, Provisional License, was mandated by Senate Bill 93.

Senate Bill 93 mandated changes to §92.41, standards for Type A and Type B Assisted Living Facilities, which establish stronger qualifications and training requirements for managers of all large and small Type B facilities and bar the department from requiring the removal of a resident from a facility if adequate care can be provided by the facility or through an outside entity, if the facility, the resident, and the physician concur. The department, in conjunction with a workgroup composed of providers and advocates, also added provisions to protect residents who have chosen to age in place. Those provisions include updating the service plan annually, and upon a change in condition; sharing of service plans between facilities and outside resources; policies to prevent the diversion of controlled drugs; and specific requirements regarding the contents of resident records. Another change in §92.41 was mandated by Senate Bill 1260, 76th Legislature, which requires facilities to maintain written policies regarding the implementation of advanced directives and establishes a $500 penalty for failure to provide written notice of these policies to residents upon admission.

Senate Bill 93 mandated changes to §92.53, Standards for Type A and Type B Assisted Living Facilities, which establish stronger qualifications and training requirements for managers of Alzheimer's facilities.

The rule at §92.62(c)(2) was changed to require facilities to have monthly fire drills, an important safety feature in light of "aging in place." A new paragraph on safety operations was added at §92.62(d) to require facilities to have a written emergency preparedness response plan. These rules were developed in cooperation with the Bureau of Emergency Management at the Texas Department of Health and address the eight core functions of emergency management. Other changes at §92.62(f), regarding fire alarm and sprinkler systems were suggested by the State Fire Marshal's office.

A new section, §92.64, Plans, Approvals, and Construction Procedures, was added, pursuant to Senate Bill 93's mandate to establish plan reviews.

Changes to §92.82, Determinations and Actions Pursuant to Inspections, were made as mandated by Senate Bill 93.

In §92.123, Investigation of Facility Employees, a rule was added, which requires facilities to search the Employee Misconduct Registry before hiring an employee, as required by SB 967.

In §92.153, Revocation, the department added a provision which allowed the revocation of a license if a facility repeatedly violated the licensure standard. The provision was necessary to address facilities which, while not jeopardizing the health and safety of residents, are constantly in and out of compliance.

The department received comments from Texas Dietetic Association, Texas Association for Home Care, Texas Assisted Living Association, Texas Association of Residential Care Communities, Texas Health Information Management Association, Texas Legal Services Center, several providers, and an attorney. Summaries of the comments and the responses follow.

Comment: As proposed, the rule would 1) raise the amount of money that can be deposited in the Nursing and Convalescent Trust Fund (the Trust Fund) from $500,000 to $10,000,000; 2) cap the Trust Fund fee assessed to $20/licensed facility bed; and 3) allow the Texas Department of Human Services (DHS) to collect a fee more than once per year, as necessary.

The Texas Assisted Living Association (TALA) believes that it is in the public interest that the Texas Department of Human Services (DHS) maintain a trust fund for the purpose of establishing trusteeships over licensed assisted living facilities. However, the amount that the department may currently raise through fees for inclusion in the Trust Fund; that is, $500,000, is more than sufficient to address the needs of DHS to establish trusteeships over licensed assisted living facilities.

According to information gathered from DHS, the amount of Trust Funds expended for assisted living (presumably in FY 99) was $234,856. Moreover, a fee assessment of the assisted living industry does not need to occur more than one time per year to meet the needs of DHS with respect to maintaining $500,000 in the Trust Fund for the purpose of establishing trusteeships over assisted living facilities.

The 76th Legislature passed HB 2909, which modified substantially the regulation of the Trust Fund. The impetus for increasing the discretionary amount available in the Trust Fund to $10 million and increasing the number of assessments that could be made in any given calendar year is the result of dramatic and systemic changes in the nursing home industry, not the assisted living industry. The assisted living industry has no authority to address the current financial crisis of the nursing facility industry. Yet, the assisted living industry is now being called upon to address this financial crisis.

The statute governing the application of the Trust Fund for assisted living, Texas Health and Safety Code §247.003(b), states that: "Subchapter D, Chapter 242, applies to an assisted living facility, and the department shall administer and enforce that subchapter for an assisted living facility in the same manner it is administered and enforced for a nursing home."

As you know, personal care facilities were once regulated under Chapter 242, which regulates nursing facilities. When Chapter 247 was promulgated, it was clear that the authors intended for there to be an assisted living trust fund. But it is also equally clear that such a trust fund was to be administered and enforced for assisted living, not for nursing facilities.

Logically, increasing the assessment for the trust fund against the nursing facility industry promotes self-regulation within that industry. But increasing the same fee assessment against the assisted living industry is not rational because it has no way to police the nursing home industry. Indeed, this is probably why the drafters of Chapter 247 included the provision that the fund would be administered and enforced for assisted living.

HB 2909 gives DHS extreme discretion regarding the administration of the Trust Fund. While the department is required to assess an annual fee if amounts in the Trust Fund are less than $10 million, it does not require that the assessment be identical for both nursing facilities and assisted living facilities. Moreover, the statute states that the department may not make more than one assessment per year unless such an assessment is necessary to cover required disbursements. Clearly, no more than one assessment is needed to cover the disbursements made with respect to assisted living facilities. TALA recommends that DHS eliminate the changes to the Trust Fund as proposed in 40 TAC §92.20(c).

Response: The department does not concur. The department is meeting the requirements of House Bill 2909, which requires the department to raise the total amount in the trust fund to $10 million and gives the department authority to assess facilities more than once a year if necessary.

Comment: Regarding §92.20(c)(2), the proposed increase in the amount to be collected and maintained in this trust fund is a direct result of bankruptcies and closings of nursing homes. The inclusion of assisted living facilities licensed under Chapter 247 is totally inappropriate. The assisted living industry has nothing to do with financial problems in nursing homes and should not be forced to bear the burden of nursing home bailouts. Any funds collected from licensed assisted living facilities under this section should be placed in a separate trust fund for the use of the department in dealing with problems in licensed assisted living facilities only. The original figure of $500,000 is more than enough to accomplish that task.

Response: The department does not concur. The department is meeting the requirements of House Bill 2909, which requires the department to raise the total amount in the trust fund to $10 million and gives the department authority to assess facilities more than once a year if necessary.

Comment: In §92.64(4)(A), the last line of that paragraph calls for a certification that is very difficult, and in some cases, impossible to obtain. The architect cannot state with absolute certainty that a facility meets the architectural requirements for licensure. They are not on the job site at all times and cannot be certain. I suggest the language in this paragraph be changed to mirror the language in 92.63(C)(4)(G).

Response: In response to comment, the department will add the phrase "to the best of their knowledge" to §92.64(4)(A) between "stating" and "the."

Comment: In §92.64(4)(B), add "unless a provisional license has been granted" to the end of this paragraph and to the end of §92.63(C)(3) in order to protect the integrity of the provisional license language that was included in Senate Bill 93. If this change is not made, then the provisional license opportunity passed by the legislature is rendered meaningless.

Response: In response to comment, the department will add the phrase "unless a provisional license has been granted" to the end of §92.64(4)(B). The department cannot make a similar change to §92.63(C)(3) because no rules were proposed for this section.

Comment: In §92.41(a)(1)(B), it is not clear that current managers are grandfathered. This should be spelled out more clearly. The following addition would address this problem: "An assisted living manager who is employed by a licensed assisted living facility prior to (effective date of regulation) is exempt from this requirement. An assisted living manager who is employed by a licensed assisted living facility as the manager prior to (effective date of this regulation) and changes employment to another licensed assisted living facility as the manager, providing that the break in employment is no longer than 30 days, is also exempt from this requirement."

Response: In response to comment, the department will add the suggested language in a new sub-paragraph (iv) to read: "An assisted living manager who was employed by a licensed assisted living facility on August 1, 2000, is exempt from the training requirement. An assisted living manager who was employed by a licensed assisted living facility as the manager prior to August 1, 2000, and changes employment to another licensed assisted living facility as the manager, with a break in employment of no longer than 30 days, is also exempt from the training requirement."

Comment: The language in §92.41(a)(1)(B)(II) does not allow corporate training programs to be used to satisfy this training requirement. Given the number and location of facilities, additional flexibility is needed for training provisions, without compromising content requirements. Corporate training programs should also be included in the last sentence of this section, to read: "All training must be provided or produced by academic institutions, assisted living corporations, or recognized state or national organizations or associations."

Response: In response to comment, the department will revise the language as suggested.

Comment: Add the following sentence to §92.41(a)(1)(B)(ii): "Subject matter dealing with the internal affairs of an organization will not qualify for credit," to ensure that training specific to internal policies of a particular corporation does not count toward the 24 hours of manager training.

Response: In response to comment, the department will make the suggested change.

Comment: Regarding §92.62(i)(4), these facilities are not nursing homes. The requirement for flame-resistant draperies in non-smoking resident units is clearly an infringement on the individual resident's right to independence and privacy. Large Type B facilities are protected throughout by NFPA13 sprinkler systems making this requirement totally unnecessary.

Response: The department does not concur. Although these facilities are not nursing facilities, they are in the same occupancy chapter (12) of the Life Safety Code as nursing facilities. The operating features chapter (31) of the Life Safety Code requires treated draperies and curtains, including cubicle curtains and other similar furnishings and decorations in health care occupancies, in Chapter 12 buildings. This requirement is in addition to the Life Safety Code requirement that large Type B facilities be protected through sprinkler systems.

Comment: §92.62(k)(1) appears to require metal or U.L. approved waste containers throughout a Type B facility. If that is the case, this requirement is an infringement on the individual resident's right to independence and privacy and will add a significant up-front expense to the initial move-in cost incurred by a resident. In addition, the facility will incur the cost of replacing all existing trash containers with approved containers and will be made to appear much more institutional in the process. The existing requirement is appropriate and anything beyond the existing requirement is not justified.

Response: The department does not concur. The department is responsible for assuring the fire safety of buildings it licenses. Type B facilities are governed by Chapter 12 of the Life Safety Code. The operating features chapter (31) of the Life Safety Code requires Chapter 12 buildings to have wastebaskets of noncombustible or other approved materials, which is what §92.62(k)(1) requires. The department will change "metal" to "noncombustible" to reflect the Life Safety Code language.

Comment: Regarding §92.41(e)(3), copies of this information should be made available rather than provided. The burden of notifying all providers each time rates or policies change could become enormous. This unfairly shifts the home health agency's liability to the facility for failing to adequately assess what their patient is receiving from the facility, which may relate to duplicate-billing issues.

Response: The department does not concur. The intent of the rule is to require facilities to actively share information with outside resources to foster better communications between entities, thereby ensuring more continuity of care for the resident.

Comment: Regarding §92.2(b)(2), the phrase "comparable to services available in a nursing facility" is too vague and open to interpretation. Remember that Community Based Alternatives (CBA) clients must meet nursing home level eligibility. The line should be drawn with language such as "continuous nursing care" or "services which may only be provided in a nursing home."

Response: The department does not concur. The phrase "comparable to services available" is taken directly from statute, and the meaning is clear.

Comment: Regarding §92.41(e)(1)(A), the statement, "Compliance with applicable life safety code requirements is a fundamental criterion which must be met prior to the consideration of 'aging in place' or securing additional services" is unnecessary and confusing, particularly since residency criteria are listed in this section anyway and "aging in place" is not defined. Life safety codes are already referenced in §92.62.

Response: In response to comment, the department will substitute the following sentence for the sentence in question, "Regardless of the possibility of "aging in place" or securing additional services, the facility must meet all life safety code requirements based on each resident's evacuation capabilities." "Aging in place" is a concept new to assisted living and bears explanation in relation to life safety code issues.

Comment: Regarding §92.41 (a)(1)(D), concerns were raised about the statement that "the manager must be on duty 40 hours per week." What if the manager is traveling on company business (i.e., training) or on vacation? Adding the following will clarify: "The manager shall be available by telephone or pager when conducting facility business off-site. In the manager's absence, an on-site designee shall be in charge."

Response: In response to comment, the department is changing §92.41 (a)(l)(D) to read: