The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts new §§92.1 - 92.6; 92.11 - 92.20, 92.54; and 92.551 and the repeal of §§92.2 - 92.4; 92.10 - 92.23; 92.551 - 92.595; and 92.601 - 92.616 in Chapter 92, Licensing Standards for Assisted Living Facilities. New §§92.1 - 92.3, 92.5, 92.11, 92.14 - 92.18, and §92.551 are adopted with changes to the proposed text published in the August 1, 2008, issue of the Texas Register (33 TexReg 6101). New §§92.4, 92.6, 92.12, 92.13, 92.19, 92.20, 92.54 and the repeal of §§92.2 - 92.4; 92.10 - 92.23; 92.54; 92.551 - 92.595; and 92.601 - 92.616 are adopted without changes to the proposed text and will not be republished.

The new sections and repeal are adopted, in part, to implement some of the provisions of Senate Bill (SB) 1318, 80th Legislature, Regular Session, 2007, which amended the Texas Health and Safety Code, Chapter 247. The rules are rewritten to update agency names, rule citations, and definitions; clarify criteria for licensing; reflect current application procedures; and reorganize the rules to place them in a more logical order.

Several changes were made to §92.2. Specifically, the definition of "applicant" was reworded slightly in §92.2(5). The definition of "bedfast" was removed from §92.2. "And in the facility while on duty" was added to the definition of "immediately available" in §92.2(23). "Transportation" was added to a list of service contracts that are not considered "management services" in §92.2(26). The definition for "ombudsman" was amended in §92.2(33) to include a reference to the current definition in §85.2 of this title. The definition for "outside resource" was removed from the section. The phrase "by a person licensed to administer medications" was added to the definition of "personal care services" in §92.2(36) to clarify that a person must be licensed to administer medication.

New §92.3(b) and (e) were changed to add a cross reference to evacuation requirements that a resident in a Type A or Type E facility must meet. In addition, §92.3(e) was changed to clarify and improve the accuracy of the section.

Section 92.5 was changed to delete "outside resource" and in its place, "a home and community support services agency licensed under Chapter 142 or with an independent health professional" was added to use language in Texas Health and Safety Code, §247.067(c).

Section 92.11(c)(1)(A)(iii) was changed to add "based on an onsite inspection by DADS," which provides clarification about the inspection in accordance with the Life Safety Code (LSC). In addition, "staff" was deleted from §92.11(c)(1)(B) because it is not necessary to the rule.

Section 92.11 was changed to add new subsection (e) and new paragraph (h)(9), which were inadvertently left out of the proposal but are provisions in the current assisted living facility licensing rules. Minor edits were made to the section and the section was relettered to reflect the addition of subsection (e) and paragraph (h)(9).

References to "filing" an application, in §§92.14, 92.15, 92.17, and 92.18, were changed to "submitting" an application, which clarifies and improves the accuracy of the section.

Section 92.14(f) was amended to clarify that the referenced Subchapter D relates to facility construction.

Section 92.15 had several minor editorial changes made that clarify and improve the accuracy of the section.

Section 92.15(d)(3) was amended to allow a license holder to submit an incomplete application with a letter explaining the circumstances that prevented the inclusion of the missing information during the 45-day period ending on the date the current license expires. This provision is consistent with other licensing rules of DADS.

Section 92.551(g)(1) was changed to add "and" to clarify and improve the accuracy of the section.

DADS received written comments from the Texas Association of Residential Care Communities, Texas Association for Home Care, and from two individuals. A summary of the comments and the responses follow.

Comment: Regarding the new definition of "bedfast" in §92.2(8), a commenter suggested deleting the word "permanently" from the new definition because it did not reflect actual circumstances.

Response: The agency has deleted the new definition of "bedfast" proposed in §92.2(8). The agency will solicit input from stakeholders regarding use of the term "bedfast" in current §92.4(2)(D) and in new §92.3(c) to assess the need for a definition.

Comment: Regarding the definition of "immediately available" in §92.2(23), two individuals suggested the addition of language to clarify staff that must be in the building while on duty.

Response: The agency amended the definition of "immediately available" in §92.2(23) by adding the phrase "and in the facility while on duty" to the end of the current definition to provide further clarification that is consistent with §92.41(a)(2)(A).

Comment: Regarding the definition "management services" in §92.2(26), a commenter suggested adding "transportation" to the list of sole contracts that are not considered management services.

Response: The agency agreed with the suggestion and changed the definition of "management services" to exclude transportation.

Comment: A commenter asked if the agency plans to update the "NPFA 101" definition in §92.2(32) to reference the 2000 edition of the LSC.

Response: The 1988 publication is the version currently in use by DADS. The agency did not change the rule in response to this comment.

Comment: Regarding the new definition of "outside resource" in §92.2(35), a commenter suggested clarifying who a resident has the right to contract with for health care services by changing the phrase "health care professional" to "health care entity or professional."

Response: The agency deleted the definition of "outside resource" in §92.2(35), and its use of the term in §92.5(b), and amended §92.5(b) to use the language in Health and Safety Code §247.067 to more clearly implement the statute, which states who a resident has the right to contract with for health care services and clearly defines a "health care professional."

Comment: Regarding the definition for "physician" in §92.2(37), a commenter stated the definition was too prescriptive and limiting and suggested broadening the definition to include the same body of physicians permitted in the home and community support services agency (HCSSA) rule language.

Response: The HCSSA definition for physician found in Chapter 90, which includes physicians from contiguous states that border Texas, reflects a unique situation that is limited to home health or hospice services delivered by a home and community support services agency licensed in the state of Texas, and is authorized by the Texas Occupations Code, §151.056(b)(4) and the Texas Medical Board's rule, Title 22, §172.12(f)(g). The agency did not make the suggested change.

Comment: Regarding the definition "working day" in §92.2(53), a commenter suggested using the term "business day" instead.

Response: The term "working day" is used in Health and Safety Code Chapter 247 governing assisted living facilities. The agency feels the use of the term "working day" in §92.2(53) meets the intent of the statute. The agency did not change the proposed rule in response to this comment.

Comment: A commenter suggested deleting the words "health" and "staff" used in §92.11(c)(1)(B) because the terms are unnecessary.

Response: Section 92.11(c)(1)(B) applies to an initial application. The agency retained the word "health" in §92.11(c)(1)(B) to distinguish the visit required in §92.11(c)(1)(B), for the purpose of observing resident care, from the initial LSC visit required in §92.11(c)(1)(A)(iii) for the purpose of ensuring the building is safe to occupy. However, the agency amended §92.11(c)(1)(A)(iii), to provide clarification about the LSC visit and also deleted the word "staff" in §92.11(c)(1)(B).

Comment: A commenter suggested revising the rule language in §92.11(c)(2) so that it does not offer the presumption that all facilities are accredited.

Response: The "or" at the end of §92.11(c)(1)(B) provides the applicant the option to affirmatively show that the facility meets §92.11(c)(1), the DADS licensing standards, or §92.11(c)(2), the standards for accreditation. The agency did not make the suggested change.

Comment: A commenter suggested revising §92.11(h)(7)(A) and §92.11 (h)(7)(E) to capture the history of the applicant "in any state."

Response: The history of the applicant in any state is addressed in §92.11(h)(7). The agency did not change the rule in response to this comment.

Comment: A commenter suggested adding language to §92.12(c) to emphasize the need for the application to include written approval from the local fire authority.

Response: The agency feels the rule language in proposed §92.12(c) sufficiently conveys the requirement. The agency did not change the rule in response to this comment.

Comment: A commenter suggested shortening the timeframe in §92.13(b), which states the agency denies an application that remains incomplete 120 days after the date that the DADS Licensing and Credentialing Section receives the application.

Response: The agency declined to shorten the timeframe at this time, but may consider making the change in the future. The agency did not change the rule in response to this comment.

Comment: A commenter suggested adding language to §92.14(d) to emphasize the agency will not conduct an on-site LSC inspection until the applicant has satisfied the application filing requirements, which includes submitting written approval from the local fire authority.

Response: The agency feels the rule language in §92.14(d) sufficiently conveys that the LSC inspection occurs after an applicant has met the requirements of §92.11 and §92.12. The agency did not change the rule in response to this comment.

Comment: A commenter suggested adding language to §92.14(f) to clarify the number of residents that can be admitted to a facility for a health inspection after a facility has met the licensure requirements in Subchapter D.

Response: The agency feels the rule language in proposed §92.14(f) sufficiently conveys the requirement. However, the agency amended §92.14(f) to clarify that Subchapter D relates to Facility Construction requirements.

Comment: Regarding §92.14(e), a commenter requested flexibility in the rule language and suggested substituting the word "denies" with the words "may deny."

Response: A current rule at §92.10(c) states that "an application which remains incomplete after 120 days will be denied." The language in §92.14(e) adopts current practice as rule and clarifies that "if the facility fails to meet the LSC requirements within 120 days after the LSC inspection, DADS denies the application for an increase in capacity." The agency did not make the suggested change.

Comment: A commenter suggested substituting "one year" for "12 months" and "24 months" for "two years" in §92.15(a)(1) and (b)(1) and (2).

Response: The agency has determined that the language used in §92.15(a)(1) and §92.15(b)(1) and (2) sufficiently conveys the intended meaning. The agency did not change the rule in response to this comment.

Comment: A commenter suggested deleting the word "health" used in §92.16(f), stating the term was inappropriate as used.

Response: The rule language proposed in §92.16(f) applies to a change of ownership application. DADS retained the word "health" in §92.16(f) to distinguish between the on-site visit required for the purpose of observing resident care from the LSC visit that DADS may also conduct if the facility is out of compliance with the Life Safety Code licensure requirements in Subchapter D (relating to Facility Construction). However, the agency amended §92.16(f) to provide clarification about the LSC visit.

Comment: A commenter stated that the rule language in §92.18(e) was unnecessarily restrictive and suggested substituting the word "denies" with the words "may deny."

Response: Current requirements in §92.10(c) indicate that "an application which remains incomplete after 120 days will be denied." The language in §92.18(e) adopts current practice as rule and clarifies that "if the facility fails to meet the LSC requirements within 120 days after the LSC inspection, DADS denies the application for an increase in capacity." DADS did not change the rule in response to this comment.

The repeal is adopted 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 247, which authorizes DADS to license and regulate assisted living facilities.