The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §90.3, Definitions, and §90.42, Standards for Facilities Serving Persons with an Intellectual Disability 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 an Intellectual Disability or Related Conditions. The amendment to §90.42 and new §90.43 are adopted with changes to the proposed text published in the April 6, 2012, issue of the Texas Register (37 TexReg 2359). The amendments to §90.3 and new §90.329 are adopted without changes to the proposed text.

The amendments and new sections are adopted 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 added Texas Health and Safety Code, Chapter 224, and requires facilities to develop and implement a policy to protect residents from vaccine preventable diseases.

A change was made to the text of §90.42(e)(7)(B) to clarify that a self-administration of medication training program may be conducted by a person who holds a license that authorizes a person to administer medication, a person to whom a registered nurse (RN) has delegated the administration of medication, or an unlicensed person who administers medication in accordance with Texas Human Resources Code, Chapter 161, Subchapter D-1.

DADS received written comments from EduCare/ResCare; Private Providers Association of Texas; Morning Light, Inc., of Texas; Midland Association for Retarded Citizens; and Special Texas Homes, Inc. A summary of the comments and the responses follows.

Comment: Concerning §90.43, relating to administration of medication, four commenters questioned the regulatory flexibility analysis, stating that it does not reflect the cost of RN hours needed to fulfill the requirements of Chapter 161, Subchapter D-1, of the Texas Human Resources Code.

Response: The agency responds that SB 1857, which allows unlicensed personnel to administer medication under certain circumstances, requires a facility to incur costs when an RN assesses individuals receiving medication and unlicensed personnel administering the medication. However, these costs will be offset over time because the unlicensed personnel can administer medication without RN delegation. Without the provisions of SB 1857, facilities may incur greater cost for RN involvement in medication administration to comply with existing law governing the practice of professional nursing in Texas. The rule was not changed in response to this comment.

Comment: Concerning §90.43 and the projected effective date of June 1, 2012, two commenters stated that the projected effective date presents numerous compliance challenges.

Response: The agency responds that the effective date for §90.43 has been changed to September 1, 2012.

Comment: Concerning §90.329, relating to vaccine preventable diseases, four commenters questioned the regulatory flexibility analysis, stating that it does not reflect costs related to the new vaccine preventable disease requirements in Texas Health and Safety Code, Chapter 224.

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 vaccines administered to employees or other costs associated with vaccine administration. The costs to verify that employees are in compliance with the facility policy can be covered with existing resources and systems. The rule was not changed in response to this comment.

Comment: Concerning §90.329 and the effective date of June 1, 2012, one commenter was concerned that the effective date presents compliance challenges.

Response: The agency responds that although the effective date of §90.329 is June 1, 2012, facilities have until September 1, 2012, to implement the rule requirements. The rule was not changed 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 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.