The Texas Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §97.2, concerning definitions; §97.3, concerning license fees; §97.15, concerning issuance of an initial license; §97.17, concerning application procedures for a renewal license; §97.19, concerning issuance of a renewal license; §97.21, concerning denial of an application or a license; §97.213, concerning agency relocation; §97.214, concerning notification procedures for a change in telephone number and agency operating hours; §97.215, concerning notification procedures for an agency name change; §97.216, concerning change in agency certification status; §97.219, concerning procedures for adding or deleting a category to the license; §97.220, concerning service areas; §97.243, concerning administrative and supervisory responsibilities; §97.255, concerning prohibition of solicitation of patients; §97.259, concerning initial educational training in administration of agencies; §97.507, concerning agency cooperation with a survey; §97.521, concerning requirements for an initial survey; §97.601, concerning enforcement actions; 97.602, concerning administrative penalties; new §97.208, concerning reporting changes in application information and fees; new §97.218, concerning agency organizational changes; and the repeal of §97.218, concerning agency organizational changes, in Chapter 97, Licensing Standards for Home and Community Support Services Agencies.

BACKGROUND AND PURPOSE

The purpose of the amendments, new rules and repeal is to implement portions of Senate Bill (SB) 223 and House Bill (HB) 1720, 82nd Legislature, Regular Session, 2011. SB 223 and HB 1720 amended Texas Health and Safety Code (THSC), Chapter 142. The proposed rules make a number of changes, including requiring a home and community support services agency (HCSSA) to report changes in certain information provided on an initial or renewal application after the license is issued, allowing DADS to assess a fee for some of the reportable changes. DADS may also assess a late fee when changes are not reported within the required time frame. The proposed rules also specify that DADS may not renew an initial HCSSA license unless DADS conducts an initial on-site survey of a non-exempt agency and allows an administrator to use DADS HCSSA joint training addressing common violations by HCSSAs to meet the required hours of initial educational training in administration of an HCSSA. Additionally, the proposal requires that an HCSSA provide a DADS representative with a reasonable and safe workspace to conduct a survey at an HCSSA.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §97.2 changes the definition for an HCSSA "administrator" and adds new definitions for "joint training" and "operating hours."

The proposed amendment to §97.3 clarifies the rule; deletes outdated provisions pertaining to one-year renewal license fees; and updates a cross-reference in the rule.

The proposed amendment to §97.15 clarifies and corrects the enforcement actions DADS may take against the holder of an initial license and makes several technical corrections.

The proposed amendment to §97.17 deletes outdated provisions pertaining to renewing a one-year license; adds notice of the administrative penalties DADS may assess; and updates a reference to §97.3.

The proposed amendment to §97.19 deletes an outdated cross-reference to §97.17 and adds a reference to §97.503, which specifies when an HCSSA is exempt from an initial and routine survey by DADS; and specifies that DADS may not renew an initial license unless DADS conducts an initial survey of an HCSSA that is not exempt from an initial survey.

The proposed amendment to §97.21 provides notice to an HCSSA that DADS may deny an application for an initial license or for renewal of a license if certain persons associated with a HCSSA violate Texas Occupations Code, §102.001 (relating to Soliciting Patients; Offense) or §102.006 (relating to Failure to Disclose; Offense); and deletes and replaces an outdated reference to rules relating to an administrative hearing.

Proposed new §97.208 includes references to the rules for reporting changes in application information and the schedule of fees for reporting, which includes a standard fee and late fee. It also provides that DADS may assess a fee if DADS determines, based on a review of an HCSSA's renewal application or a survey, that the HCSSA did not report a change in application information. It also states the enforcement action DADS may take if an HCSSA does not pay a fee as required.

The proposed amendment to §97.213 updates the requirement that an HCSSA must submit written notice to DADS to report a change in physical location; specifies when a change in physical location requires DADS review and approval; specifies that an HCSSA is exempt from the requirements of the section when a temporary relocation results from an emergency or disaster; and allows an agency to request an exemption from the 30-day time frame requirement.

The proposed amendment to §97.214 updates the requirement that an HCSSA must submit written notice to DADS to report a change in contact information and HCSSA operating hours.

The proposed amendment to §97.215 updates the requirement that an HCSSA must submit written notice to DADS to report a change in the HCSSA's name.

The proposed amendment to §97.216 amends the title of the section; requires a Medicare-certified agency to report its decision to voluntarily withdraw from the Medicare Program; clarifies the effect on a license following a voluntary or involuntary loss of Medicare certification; corrects an inaccuracy in the rule specifying that termination or denial of certification does not result in an enforcement action by DADS; and deletes the requirement for an HCSSA to notify DADS between applications of a change in the HCSSA's certification or accreditation status.

Proposed new §97.218 updates the requirements for an HCSSA to submit written notice to DADS to report a change in management personnel, requires a fee to report changes in the administrator, chief financial officer and controlling person of the HCSSA, requires a late fee for untimely reporting of changes in all management personnel, and specifies that a change in management personnel requires DADS evaluation and approval.

The proposed amendment to §97.219 requires an HCSSA to submit written notice to DADS to request to add or delete a category of service on the HCSSA's license. The section also specifies the requirements an HCSSA must meet to add a category of service.

The proposed amendment to §97.220 amends the requirements for an HCSSA to submit written notice to DADS to expand or reduce its service area; clarifies the exemption from the 30-day time frame requirement for an emergency situation that would affect client health and safety; and specifies that an HCSSA is exempt from the requirements of the section when a temporary service area expansion results from an emergency or disaster.

The proposed amendment to §97.243 specifies the responsibilities of an HCSSA administrator based on the new statutory definition of "HCSSA administrator" and the new authorization to adopt rules governing the duties and responsibilities of an HCSSA administrator.

The proposed amendment to §97.255 specifies that DADS may take enforcement action against an HCSSA if the HCSSA violates Texas Occupations Code, §102.001 and §102.006.

The proposed amendment to §97.259 allows an administrator to use DADS joint training if it meets the requirements for the 24 hours of educational training required in the rule and clarifies that initial educational training may be completed before designation as an administrator and alternate administrator.

The proposed amendment to §97.507 specifies that an HCSSA must not refuse to allow a DADS representative to inspect a book, record or file required to be maintained by or on behalf of the HCSSA; and must provide a DADS representative with a reasonable and safe workspace at the agency. It also specifies what an HCSSA must do if notified by DADS that a workspace requirement is not met and the actions DADS may take for an HCSSA's willful refusal to provide a reasonable and safe workspace.

The proposed amendment to §97.521 clarifies the requirement for an HCSSA to submit a written request to DADS for an initial licensure survey; adds a reference to §97.15, which specifies the enforcement actions DADS may take against an initial license; and specifies when an HCSSA is exempt from the requirement to submit a written request to DADS for an initial licensure survey.

The proposed amendment to §97.601 adds the correct references to violations of the Texas Occupations Code for which DADS may take enforcement action against an HCSSA; updates references to the rules for requesting an administrative hearing; and specifies that an HCSSA must continue to submit a renewal application until an enforcement action proposed by DADS is completed.

The proposed amendment to §97.602 provides that DADS may assess an administrative penalty against a person who violates Texas Occupations Code, §102.001 or §102.006, if the violation is related to providing HCSSA services. It also updates the rule cites and subject matter descriptions listed in the Severity Level A and B Violations penalty tables.

FISCAL NOTE

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendments, new sections, and repeal are in effect, there are foreseeable implications relating to costs or revenues of state government. There are no foreseeable implications relating to costs or revenues of local governments.

The effect on state government for the first five years the proposed amendments, new sections, and repeal are in effect is an estimated increase in revenue of $17,054 in fiscal year (FY) 2012; $102,325 in FY 2013; $102,325 in FY 2014; $102,325 in FY 2015; $102,325 in FY 2016; and $85,271 in FY 2017.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed amendments, new sections, and repeal may have an adverse economic effect on small businesses or micro-businesses, because of the possibility of a HCSSA being assessed a change fee, a late fee, or an administrative penalty.

DADS is able to provide approximate numbers for the small businesses or micro-businesses subject to the proposed amendments, new sections, and repeal. All HCSSAs will be subject to payment of a fee for reporting changes in application information. On November 30, 2011, based on employee numbers provided by 2,568 Medicare-certified home health agencies (HHAs), 2,529 had fewer than 100 employees and 2,137 of them had fewer than 20 employees. Of the 365 Medicare-certified hospice agencies, 342 had fewer than 100 employees and 240 had fewer than 20 employees. DADS does not have data on the gross annual receipts for the Medicare-certified HHAs and hospice agencies qualifying as a small business based on number of employees. DADS also does not have data on the number of employees or annual gross receipts to determine what percentage of all other HCSSAs meet the definition of a small business or a micro-business. On August 1, 2011, there were a total of 4,803 parent agencies. A small or micro-business that reports a change in application information between applications will be required to pay a "per-occurrence" fee of $30 for some changes; and, if applicable, a "per occurrence" late fee of $100.

Several alternatives were considered in determining how to accomplish the objectives of the proposed rules while minimizing the adverse economic effect on small businesses or micro-businesses. The amendment to THSC requires an HCSSA to pay a fee not to exceed $50 for reporting a change in application information. DADS considered the use of graduated fees based on the size of an HCSSA for reporting a change in application information. However, DADS determined that the work involved in establishing such a system would have additional administrative costs associated with it that outweigh the benefits of such a system. DADS considered setting the amount of the fee in a two-tiered system based on the amount of work required for DADS staff to process each change requiring a fee. However, DADS determined the cost would be lower by assessing a standard fee of $30 for all changes that require a fee due to the frequency with which HCSSAs report these changes. DADS also considered a late fee of less than $100 for reporting changes in application information after the time frames specified in the rules. However, DADS determined that imposition of a late fee lower than $100 would not be effective in encouraging compliance with the time frames for reporting changes, including changes in HCSSA location, phone number, and management personnel. Also, this alternative was rejected because a small or micro-business can avoid the late fee all together by complying with the time frames in the rules for reporting changes.

PUBLIC BENEFIT AND COSTS

Veronda L. Durden, DADS Assistant Commissioner for Regulatory Services, has determined that, for each year of the first five years the amendments, new sections, and repeal are in effect, the public benefit expected as a result of enforcing the amendments, new sections, and repeal is that HCSSAs and DADS will operate under rules that comply with changes in law. The public will benefit from rules that require HCSSAs to report all management personnel changes, allowing DADS to review each person's qualifications, to ensure quality of care and client health and safety.

Ms. Durden anticipates that there will be an economic cost to persons who are required to comply with the amendments, new sections, and repeal. The probable economic cost to persons required to comply with the amendments, new sections, and repeal for each year of the first five years the amendments, new sections, and repeal are in effect will be $17,054 in fiscal year (FY) 2012; $102,325 in FY 2013; $102,325 in FY 2014; $102,325 in FY 2015; $102,325 in FY 2016; and $85,271 in FY 2017. The amendments, new sections, and repeal 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 Sylvia Trevino at (361) 878-3419 in DADS Regulatory Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-11R21, 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 11R21" in the subject line.

STATUTORY AUTHORITY

The amendments and new sections are 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; and 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 142, which provides DADS with the authority to adopt rules for the licensing and regulation of home and community support services agencies.

The amendments and new sections implement Texas Government Code, §531.0055; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §§142.001 - 142.030.