The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §90.3, Definitions, and §90.42, Standards for Facilities Serving Persons with Mental Retardation or Related Conditions; new §90.43, Administration of Medication; and new §90.329, Vaccine Preventable Disease, in Chapter 90, Intermediate Care Facilities for Persons with Mental Retardation or Related Conditions.

BACKGROUND AND PURPOSE

The purpose of the amendments and new sections is to implement provisions of Senate Bill (SB) 1857, 82nd Legislature, Regular Session, 2011, which added Human Resources Code, Chapter 161, Subchapter D-1, allowing administration of medication to a resident of an intermediate care facility by an unlicensed person under certain circumstances. DADS also initiated these changes in response to provisions of SB 7, 82nd Legislature, First Called Session, 2011, which requires facilities to develop and implement a policy to protect residents from vaccine preventable diseases in accordance with Texas Health and Safety Code, Chapter 224. This proposal also changes the title of Chapter 90 to Intermediate Care Facilities for Persons with an Intellectual Disability or Related Conditions.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §90.3 adds definitions for "administration of medication," "metered dose inhaler," "oral medication," "topical medication," and "vaccine preventable diseases." In addition, the definition of "facility" has been amended to replace "mental retardation" with "intellectual disability."

The proposed amendment to §90.42 removes current requirements regarding administration of medication and clarifies that self-administration of medication is administration of medication and self-administration of medication training can be conducted by unlicensed personnel in accordance with new §90.43.

Proposed new §90.43 clarifies the circumstances in which unlicensed personnel may administer medication without delegation from a registered nurse.

Proposed new §90.329 requires a facility to develop and implement a policy to protect residents from vaccine preventable diseases and includes procedures regarding vaccination of employees.

FISCAL NOTE

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendments and new sections are in effect, enforcing or administering the amendments and new sections 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 and new sections will not have an adverse economic effect on small businesses or micro-businesses because the amendments and new sections do not require additional staff or resources to accomplish compliance. Administration of medication to individuals residing in intermediate care facilities has always required staff oversight and will continue with the exception that registered nurse delegation is not required if the medication is administered orally, topically, or by metered dose inhaler.

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 and new sections are in effect, the public benefit expected as a result of enforcing the amendments and new sections is that rules will be clarified in accordance with legislation.

Ms. Durden anticipates that there will not be an economic cost to persons who are required to comply with the amendments and new sections. The amendments and new sections 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 Policy, Rules, and Curriculum Development Unit. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-11R19, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, Texas 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 11R19" 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 Health and Safety Code, Chapter 252, which authorizes DADS to license and regulate intermediate care facilities for persons with an intellectual disability or related conditions; 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 Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program.

The amendment affects Texas Government Code, §531.0055 and §531.021; Texas Health and Safety Code, §§252.001 - 252.208; and Texas Human Resources Code, §161.021.