The Texas Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to Subchapter A, §92.2, concerning definitions; Subchapter C, §92.41, concerning standards for type A and type B assisted living facilities; and Subchapter H, Division 9, §92.551, concerning administrative penalties, in Chapter 92, Licensing Standards for Assisted Living Facilities.

BACKGROUND AND PURPOSE

The purpose of the amendments is to implement House Bill (HB) 2109, 82nd Legislature, Regular Session, 2011, and Senate Bill (SB) 7, Article 8, 82nd Legislature, First Called Session, 2011. HB 2109 amends Texas Health and Safety Code, §247.066 and §247.068, regarding assisted living facilities. A resident of an assisted living facility may be considered inappropriately placed due to a change in the types of services the resident needs or a change in the resident's evacuation capability. HB 2109 allows an assisted living facility to proactively submit documents to DADS for a waiver of the requirement to discharge an inappropriately placed resident instead of waiting for DADS to make the initial determination. HB 2109 also authorizes DADS to take action when a facility has not discharged a resident when required to do so and prohibits DADS staff from retaliating against an assisted living facility for complaints about or disagreements with a DADS employee. Additionally, HB 2109 requires facility supervisors and other staff, as appropriate, to complete training regarding aging in place and retaliation.

SB 7, Article 8, requires a facility to develop policies to ensure that employees are immunized against vaccine preventable diseases. The proposed amendment adds the requirement for a facility to develop and implement these policies and adds a definition for "vaccine preventable diseases."

SECTION-BY-SECTION SUMMARY

The proposed amendment to §92.2 adds a definition of "vaccine preventable diseases."

The proposed amendment to §92.41(f) clarifies the process DADS and an assisted living facility must follow if a resident is inappropriately placed in the facility. Section 92.41(f)(4)(A) - (B) authorizes DADS to take action if a facility has not discharged a resident when required to do so. The actions include assessing administrative penalties, seeking emergency suspension or closing, or other sanctions under appropriate circumstances. Section 92.41(f)(5) requires a facility to notify a resident and the resident's legally authorized representative of the waiver policies and process regarding aging in place. Section 92.41(f)(6) requires a facility manager to annually complete DADS training relating to aging in place and retaliation. Section 92.41(r) adds requirements for a facility to develop and implement a policy to protect residents from vaccine preventable diseases. Section 92.41(s) prohibits a DADS employee from retaliating against a facility or a facility employee for complaining about the conduct of a DADS employee, disagreeing with a DADS employee about the existence of a violation or rule, or asserting a right under state or federal law.

The proposed amendment to §92.551(d) adds new administrative penalties to the schedule to reflect that DADS may assess the administrative penalty described in the proposed amendments to §92.41(f)(4).

FISCAL NOTE

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendments are in effect, enforcing or administering the amendments 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 may have an adverse economic effect on small businesses as a result of enforcing or administering the amendments, because the rule allows DADS to assess an administrative penalty against an assisted living facility that intentionally or repeatedly disregards the waiver process.

DADS estimates that the number of small businesses subject to the proposed amendments is less than 1,455. The estimate is based on DADS records which indicate that of the 1,680 licensed assisted living facilities, approximately 1,455 of them are formed for the purpose of making a profit, one of the requirements for being classified as a "small business." DADS does not have specific data regarding number of employees and gross receipts to determine what percentage of these facilities are operated by an entity that would meet the definition of a small business or micro-business.

The projected economic impact for a small business is an administrative penalty of $700 to $1,000, but that penalty is incurred only if the small business intentionally and repeatedly disregards the waiver process in accordance with the proposed amendments. For that reason, DADS projects that there will be minimal economic impact to small businesses subject to these amendments.

Several alternatives were considered in determining how to accomplish the objectives of the proposed rules while minimizing the adverse economic effect on small businesses. THSC §247.066 gives DADS the option of assessing an administrative penalty if an assisted living facility intentionally or repeatedly disregards the waiver process. DADS considered not imposing a penalty against a facility that intentionally or repeatedly disregards the waiver process. However, DADS did not consider this option to be consistent with its responsibility as a regulatory agency and specifically determined that this option would not adequately address the need for waivers or relocation of inappropriately placed residents. DADS considered the use of lower penalties to minimize the adverse economic impact on small businesses, but determined that imposition of a lower penalty would not be effective in encouraging compliance with the rule. The proposed penalty amount is consistent with other penalty amounts DADS imposes for non-compliance with similar requirements that may directly impact the health and safety of a resident.

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 are in effect, the public benefit expected as a result of enforcing the amendments is that an assisted living facility may proactively submit waiver documents to DADS relating to an inappropriately placed resident to address the evacuation and health concerns of an aging resident without waiting for DADS to make the initial determination during an on-site inspection. By requiring the facility to include specific information regarding facility policies on aging in place in the facility's disclosure statement, residents and their families will have a better understanding of the potential needs and concerns residents may face in an assisted living facility as they age in place. Additionally, a facility may be more inclined to follow the requirements if an administrative penalty is imposed for intentionally or repeatedly disregarding the regulations.

Ms. Durden anticipates that there will not be an economic cost to persons who are required to comply with the amendments. The amendments 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 Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-11R26, 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 11R26" 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.