The Texas Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts an amendment §92.2, concerning definitions, in Chapter 92, Licensing Standards for Assisted Living Facilities, with changes to the proposed text as published in the October 7, 2011, issue of the Texas Register (36 TexReg 6701).

The amendment is adopted to implement portions of House Bill (HB) 2972 of the 81st Legislature, Regular Session, 2009. 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 4471). 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 7877), effectively repealing the amendment on September 1, 2010. Thus, the amendment is being adopted again.

The proposed text of §92.2 contained a publication error. On page 6702, §92.2(8) should have read: "Behavioral emergency--Has the meaning given in §92.41(p)(2) of this chapter (relating to Standards for Type A and Type B Assisted Living Facilities)." This correction is included in the adoption.

Additionally, on page 6703, §92.2(36) should have read "Personal care services--Assistance with feeding, dressing, moving, bathing, or other personal needs or maintenance; or general supervision or oversight of the physical and mental well-being of a person who needs assistance to maintain a private and independent residence in the facility or who needs assistance to manage his or her personal life, regardless of whether a guardian has been appointed for the person." This correction is also included in the adoption.

DADS received a written comment from one individual. A summary of the comment and the response follows.

Comment: A commenter recommended revising the definition of "immediately available" to reconsider the "600 feet" portion of the definition to reflect a shorter distance.

Response: The proposed rule amendment corrects an omission to the definition of "controlling person" in a previously filed version of §92.2 (relating to Definitions). This comment is outside of the scope of the proposed amendment, but DADS will consider this recommendation when the rule is proposed for amendment in the future.

The amendment is 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.