The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §92.2, concerning definitions; §92.3, concerning types of assisted living facilities; §92.11, concerning criteria for licensing; §92.41, concerning standards for type A, type B, and type E assisted living facilities; §92.53, concerning standards for certified Alzheimer's assisted living facilities; and the repeal of §92.71, concerning introduction and application: type E facilities; and §92.72, concerning general requirements: type E facilities, in Chapter 92, Licensing Standards for Assisted Living Facilities. The amendments and repeals are adopted without changes to the proposed text published in the May 28, 2010, issue of the Texas Register (35 TexReg 4354).

The amendments and repeals are adopted to implement portions of House Bill (HB) 216, 81st Legislature, Regular Session, 2009. HB 216 amended the definitions of "assisted living facility" and "personal care services" in Texas Health and Safety Code §247.002. In response, the agency adopts the amendment of the definition of "personal care services" in §92.2, which excludes the activities of medication administration and assistance with, or supervision of, medication from that definition. In addition, the agency adopts the amended description of an assisted living facility in §92.11(a)(1), which adds administration of medication as a service that requires a facility to be licensed as an assisted living facility and adds assistance with, or supervision of, the administration of medication as a service that may be provided by an assisted living facility.

HB 216 also repealed §247.030, regarding facilities that provide only medication supervision and general supervision of residents' welfare, known as Type E facilities. In response, the agency adopts amendments to §§92.2, 92.3, 92.41 and 92.53, which delete references to Type E facilities. The agency also adopts the repeal of §92.71 and §92.72, which contain requirements related to Type E facilities.

The agency adopts additional amendments to §92.41(e) that prohibit an assisted living facility from using its own employees to provide nursing services other than personal care services or the administration of medication. This amendment is in response to Texas Attorney General Opinion JC-0072. Other amendments update the agency name from the Department of Human Services to DADS and update section references.

DADS received one written comment from the Texas Assisted Living Association (TALA). A summary of the comment and the response follow.

Comment: The comment addressed the deletion of the phrase in §92.41(e) that states, "individuals with a terminal condition or who are experiencing a short-term, acute episode are excluded from this requirement." The commenter stated that, "this deletion could be construed as limiting the ability of individuals with terminal conditions or who are experiencing a short-term acute care episode to reside in assisted living." The commenter requested that the agency "provide assurances that the deletion from subpart (B) does not prohibit persons with terminal or short-term acute care needs from residing in assisted living facilities and from receiving the necessary nursing services."

Response: The deleted phrase allowed an individual with a terminal condition or who is experiencing a short-term, acute episode to receive daily or regular nursing services from a nurse employed by the assisted living facility. The phrase was deleted because a facility must not admit or retain a resident who cannot secure nursing services from an outside resource, if those services are needed. The amendment does not prohibit a person with terminal or short-term, acute care needs from residing in an assisted living facility or from receiving the necessary nursing services, but the services must be provided by an independent health care professional. Section 92.5 explicitly allows residents to contract with health care professionals for the provision of nursing services. The agency did not change the rule in response to this comment.

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.