The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts 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. The amendments to §§92.4, 92.63, and 92.123 are adopted with changes to the proposed text published in the February 26, 2010, issue of the Texas Register (35 TexReg 1714). The amendments to §92.2 and §92.20 are adopted without changes to the proposed text.

The amendments are adopted to implement portions of House Bill (HB) 2972 and Senate Bill (SB) 806, 81st Legislature, Regular Session, 2009. HB 2972 amended Texas Health and Safety Code (THSC) Chapter 247. New THSC §247.0211 requires DADS to provide assisted living facilities with the option of paying a fee to obtain an expedited Life Safety Code (LSC) inspection. The amount of the fee is based on the size and type of the facility. In addition, revisions to THSC §247.022 authorize DADS to charge a fee if more than two LSC inspections are requested relating to any one application. This fee may be assessed in addition to the non-refundable license application fee. Revisions to THSC §247.021 require DADS to issue a provisional license to a newly constructed facility if the facility passes the LSC inspection and meets all the requirements for a license. Previously, DADS was authorized to issue a provisional or permanent license to newly constructed facilities. Revisions to THSC §247.021 also clarify time frames for the expiration of a provisional license. THSC §247.005 revises 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 amended 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. Assisted living facilities must maintain a copy of the search results in the employee's personnel file.

Proposed §92.4(g) was revised to clarify that an applicant may obtain an expedited LSC inspection within 15 business days after DADS receives a written request for the expedited inspection if the applicant meets the requirements set forth in §92.4(g)(1) and (2).

Proposed §92.4(h) was revised to clarify that after the second LSC inspection, an additional fee may be charged for each subsequent inspection.

Proposed §92.63(a)(2) was revised to clarify requirements related to certain contract documents that must be sealed by a licensed professional engineer or be signed by a Responsible Managing Employee or Alarm Planning Superintendent licensed by the State Fire Marshal's Office. An additional change was made to subsection (a)(2), changing the phrase "registered" professional engineer to "licensed" professional engineer to reflect current industry practices. Also, proposed §92.63(a)(2) was revised to include a reference to "civil" engineering for consistency with other DADS program rules.

The term "fire alarm" was deleted from proposed §92.63(b)(9) to clarify that someone other than a person licensed by the Texas Board of Architectural Examiners may inspect a fire alarm system.

In addition, proposed §92.63(b)(12), (c)(4)(B), and (c)(4)(D) were revised and (b)(15) was added to provide clarity and consistency with current practices of the State Fire Marshal's office.

Proposed §92.123(e) was revised to ensure employee background checks are conducted at least every 12 months for each employee, but not necessarily during the month of the employment anniversary. The change is consistent with other DADS program rules.

DADS received no comments regarding adoption of the amendments.

The amendments are 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.