The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to Subchapter A, §92.2, concerning definitions, and §92.4, concerning license fees; Subchapter B, §92.20, concerning provisional license; Subchapter D, §92.63, concerning construction and initial survey of completed construction; and Subchapter G, §92.123, concerning investigation of facility employees, in Chapter 92, Licensing Standards for Assisted Living Facilities.

BACKGROUND AND PURPOSE

The purpose of the amendments is to implement portions of House Bill (HB) 2972 and Senate Bill (SB) 806, 81st Legislature, Regular Session, 2009. HB 2972 amends Texas Health and Safety Code (THSC) by adding §247.0211 which requires DADS to give assisted living facilities the option of paying a fee based on the size and type of institution to obtain an expedited Life Safety Code inspection. In addition, the amendment authorizes DADS to charge a fee if more than two Life Safety Code inspections are requested for a given application. HB 2972 also amends THSC §247.021 to clarify time frames for the expiration of a provisional license, and to require DADS to issue a provisional license to a newly constructed facility if the facility passes the inspection and meets all the requirements for a license. Previously, DADS had the option to issue a provisional license or permanent license to newly constructed facilities. HB 2972 also amends THSC §247.005 by revising the definition of a "controlling person." The definition clarifies that neither a shareholder nor lender of a publicly traded corporation is a "controlling person" of an assisted living facility.

SB 806 amends THSC §250.003 and §253.008 to require assisted living facilities to search the nurse aide registry (NAR) and the employee misconduct registry (EMR) annually to determine if an employee is listed in either registry as unemployable and to maintain a copy of the search results in the employee's personnel file.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §92.2 revises the definitions of a "controlling person," in accordance with HB 2972. The revised definition of a "controlling person" clarifies that neither a shareholder nor a lender of a publicly traded corporation is included in the definition.

The proposed amendment to §92.4 adds new subsection (g) with information regarding an expedited Life Safety Code inspection and a new fee schedule based on HB 2972. New subsection (h) allows DADS to collect an additional fee for the third and each subsequent Life Safety Code inspection requested by an applicant that pertains to the same application. Provisional license fee is deleted as one of the basic fee types because the basic license fee will be charged for a provisional license.

The proposed amendment to §92.20 clarifies what documentation an applicant must submit with a written request for DADS to issue a provisional license; clarifies that an applicant must pay a license fee to obtain a provisional license; specifies the documentation that must be submitted to DADS before beginning construction of a new facility; explains when facility construction begins; clarifies that DADS will issue a provisional license if the applicant has constructed another facility in Texas that complies with the Life Safety Code standards; and describes the time frame for the expiration of a provisional license. The proposed amendment adds new subsection (e), which provides that DADS will conduct a Life Safety Code inspection of the facility as soon as reasonably possible after DADS issues a provisional license; and new subsection (f), which provides that DADS will issue a license to the provisional license holder if the facility passes the inspection and the applicant meets all the requirements for a license. The amendment also deletes the statement that DADS will not issue a permanent license if the facility does not meet Life Safety Code and physical plant standards. This statement is unnecessary because the rule states DADS will issue a license if the facility passes the Life Safety Code inspection and meets all the requirements for a license.

The proposed amendment to §92.63 allows a facility to request an expedited Life Safety Code inspection and references the corresponding fee schedule. The amendment also changes references to the Texas Department of Human Services to DADS to reflect a change in the agency name.

The proposed amendment to §92.123 requires a facility to provide notification to an employee about the EMR in accordance with §93.3. A notification has been required, but the reference to §93.3 is new. In addition, in accordance with SB 806, the amendment adds requirements for a facility to search the NAR and EMR annually to ensure that no employee is listed in either registry as unemployable and to keep a copy of the results of the initial and annual searches of the registries in an employee's personnel file.

FISCAL NOTE

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendments are in effect, there are foreseeable implications relating to costs or revenues of state government. There are no foreseeable implications relating to costs or revenues of local governments.

The effect on state government for the first five years the proposed amendments are in effect is an estimated additional cost of $80,498 in fiscal year (FY) 2010; $70,115 in FY 2011; $70,115 in FY 2012; $70,115 in FY 2013; and $70,115 in FY 2014, for conducting expedited Life Safety Code inspections.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed amendments will not have an adverse economic effect on small businesses or micro-businesses, because the expedited inspection fee is optional for a facility and a facility can avoid the third and subsequent Life Safety Code inspection fee by passing in the first two inspections.

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 rules are in effect, the public benefit expected as a result of enforcing the proposed rules is that the rules will make it easier for facilities to obtain the needed information to submit applications for initial and renewal licenses; the rules will help ensure that facilities do not hire or retain staff members that are listed in the NAR or EMR as unemployable; and an expedited Life Safety Code inspection process will allow facilities to obtain a license more quickly, if desired. In addition, the proposed rules will benefit the public by clarifying existing facility requirements.

Ms. Durden anticipates that there will not be an economic cost to persons who are required to comply with the proposed rules because the expedited inspection fee is optional for a facility and a facility can avoid the third and subsequent Life Safety Code inspection fees by passing in the first two inspections. The proposed rules 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 Jennifer Morrison at (512) 438-4624 in DADS' Regulatory Services. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-9R015, 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: (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 9R015" in the subject line.

STATUTORY AUTHORITY

The amendments are 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 247, which authorizes DADS to license and regulate assisted living facilities.

The amendments implement Texas Government Code, §531.0055; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §§247.001 - 247.069.