The Texas Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts 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. The amendment to §92.551 is adopted with changes to the proposed text published in the April 6, 2012, issue of the Texas Register (37 TexReg 2366). The amendments to §92.2 and §92.41 are adopted without changes to the proposed text.

The amendments are adopted 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 amendment adds the requirement for a facility to develop and implement these policies and adds a definition for "vaccine preventable diseases."

A minor change was made to the Administrative Penalty Schedule of §92.551(d) to delete references to Type E Facilities, which were eliminated in 2010.

DADS received written comments from the Texas Assisted Living Association. A summary of the comments and the responses follows.

Comment: The commenter stated that the proposed rules do not provide analysis on the cost of any required vaccines and that, depending on the vaccines required, the cost for the vaccination must be incurred by the facility or the individual worker. The commenter requested that the rules acknowledge the cost implications of vaccines.

Response: The Texas Legislature has determined that a facility vaccine preventable disease policy is necessary to protect resident health and welfare. The rule does not require a facility to pay for vaccine administration to employees or other costs associated with vaccine administration. No changes were made in response to this comment.

Comment: The commenter stated that the proposed rules did not provide an analysis on the cost of any potential liability to a facility if an employee incurs an adverse reaction from the vaccination and that this could be considered a cost to the small business owner.

Response: The Texas Legislature has determined that a facility vaccine preventable disease policy is necessary to protect resident health and welfare. The rule does not require a facility to pay for vaccine administration to employees or other costs associated with vaccine administration. No changes were made in response to this comment.

Comment: The commenter stated that House Bill 2109, 82nd Legislature, 2011, Regular Session intended that both assisting living facilities and DADS staff receive annual joint training so both the facility staff and DADS staff are clear on the policies and procedures relating to aging in place. The commenter requested that the rule include a requirement that, in addition to the assisted living facility manager, DADS staff must also complete this annual requirement and keep appropriate documentation.

Response: Procedures are in place to ensure that DADS Regulatory staff complete the training requirement. It is not necessary for DADS to put this requirement in rule. No changes were made in response to this comment.

Comment: The commenter stated that the proposed rules modify Chapter 92 to include a provision that requires a facility to retain various forms from the Fire Marshal, State Fire Marshal and local fire suppression authority. The commenter also stated that there is not a provision for how a facility can obtain a timely license renewal if there are extenuating circumstances that inhibit obtaining the required signature and requested that the proposed rules allow for this by providing for an extension or issuance of a temporary license for renewal so the issue can be resolved.

Response: The process of obtaining the documentation for an evacuation waiver was not changed in the proposed rules, except for the changes required by HB 2109 that allow a facility to proactively begin the process without waiting for DADS to conduct an onsite visit. The proposed rules do not affect the license renewal process. Section 92.41(f) outlines the steps a facility takes when requesting an evacuation waiver or acknowledging that a resident may need additional services in order to age in place. The proposed rules do not amend any of the documentation a facility needs to submit to DADS. No changes were made in response to this comment.

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.