The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §90.3, concerning definitions, §90.11, concerning criteria for licensing, and §90.17, concerning criteria for denying a license or renewal of a license, in Chapter 90, Intermediate Care Facilities for Persons with Mental Retardation or Related Conditions.

BACKGROUND AND PURPOSE

The purpose of the amendments is to implement Senate Bill (SB) 643, 81st Legislature, Regular Session, 2009, which amended Texas Health and Safety Code (HSC), Chapter 252, to define "controlling person," as it relates to obtaining a license to operate a facility. The amendments replace the terms "affiliate," "person with a disclosable interest," and "manager" with the term "controlling person" and add a definition of "license holder." The amendments also extend the review period of a person applying for an initial or renewal license from two years to five years.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §90.3 deletes definitions of the terms "affiliate," "person with a disclosable interest," and "manager" and adds a definition for "controlling person" to be consistent with the changes made by SB 806. A definition of "license holder" is also added for clarification.

The proposed amendment to §90.11 replaces the terms "affiliate," "person with a disclosable interest," and "manager" with the term "controlling person" as a person requiring a background check prior to being issued a license.

The proposed amendment to §90.17 extends the review period of a person applying for an initial or renewal license from two years to five years to increase consistency across DADS' programs and improve client protection efforts.

FISCAL NOTE

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendments are in effect, enforcing or administering the amendments 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 the proposed amendments will not have an adverse economic effect on small businesses or micro-businesses, because it is DADS' responsibility to complete background checks at no cost to facilities.

PUBLIC BENEFIT AND COSTS

Veronda Durden, DADS Assistant Commissioner for Regulatory Services, has determined that, for each year of the first five years the amendments are in effect, the public benefit expected as a result of enforcing the amendments is that client protections will be enhanced because DADS will be more likely to identify facility license applicants with criminal backgrounds and prevent such applicants from being issued a license.

Ms. Durden anticipates that there will not be an economic cost to persons who are required to comply with the amendments. The amendments 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 Kim Lammons at (512) 438-2264 in DADS' Regulatory Services. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-9R017, 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 9R017" 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 252, which authorizes DADS to license and regulate intermediate care facilities for persons with mental retardation or related conditions.

The amendment implements Texas Government Code, §531.0055; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §§252.001 - 252.208.