The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), an amendment to §92.2, concerning definitions, in Chapter 92, Licensing Standards for Assisted Living Facilities.

BACKGROUND AND PURPOSE

The purpose of the amendment is to implement portions of House Bill (HB) 2972 of the 81st Legislature, Regular Session, 2010. HB 2972 amended Texas Health and Safety Code, §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.

A similar amendment, along with other changes to Chapter 92, was adopted with an effective date of June 1, 2010 in the May 28, 2010, issue of the Texas Register (35 TexReg 4472). However, that amendment was inadvertently omitted when a subsequent amendment to §92.2 was published for adoption in the August 27, 2010, issue of the Texas Register (35 TexReg 7878), effectively repealing the amendment on September 1, 2010. Thus, the amendment is being proposed again.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §92.2 revises the definition of a "controlling person" to be consistent with Texas Health and Safety Code §247.005. The revised definition clarifies that if an assisted living facility or a business entity that operates or contracts with others to operate an assisted living facility is a publicly traded corporation, an officer or director of that corporation is a controlling person, but a shareholder or lender of the corporation is not.

FISCAL NOTE

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendment is in effect, enforcing or administering the amendment 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 amendment will not have an adverse economic effect on small businesses or micro-businesses, because there is no cost associated with the proposed rule.

PUBLIC BENEFIT AND COSTS

Veronda Durden, DADS Assistant Commissioner for Regulatory Services, has determined that, for each year of the first five years the amendment is in effect, the public benefit expected as a result of enforcing the amendment is the definition in the rule will be consistent with the Texas Health and Safety Code.

Ms. Durden anticipates there will not be an economic cost to persons who are required to comply with the amendment. The amendment 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-11R20, 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 11R20" 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 247, which authorizes DADS to license and regulate assisted living facilities.

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