The Texas Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §90.3, concerning definitions; and §90.42, concerning standards for facilities serving persons with an intellectual disability or related conditions, in Chapter 90, Intermediate Care Facilities for Persons with an Intellectual Disability or Related Conditions.

BACKGROUND AND PURPOSE

The purpose of the amendments is to increase medical professional service options for intermediate care facilities for individuals with an intellectual disability or related conditions (ICF/IID), as allowed by current federal regulations, which state at 42 Code of Federal Regulations, §483.460(a)(4), that "to the extent permitted by state law, the facility may utilize physician assistants and nurse practitioners to provide physician services as described in this section."

Existing §90.42 allows only a physician to provide written and oral orders for medication, participate on an interdisciplinary team reviewing issues related to restraint, implement policies and procedures for automatic stop orders for medications, and order specialized nutritional support. DADS proposes to amend §90.42 to allow a licensed healthcare professional acting within the scope of the professional's practice to perform these services as well. The proposed amendment will also allow a licensed health care professional acting within the professional's scope of practice to delegate to unlicensed staff the provision of specialized nutritional support.

The proposed amendment to §90.3, relating to definitions, clarifies that the term "health care professional" includes a physician, licensed nurse, physician assistant, podiatrist, dentist, physical therapist, speech therapist, and occupational therapist; and "licensed nurse" includes a licensed vocational nurse, registered nurse, or advanced practice nurse. In addition, definitions were added for "advanced practice nurse," "licensed vocational nurse," and "registered nurse."

SECTION-BY-SECTION SUMMARY

The proposed amendment to §90.3 adds definitions for "advanced practice nurse," "health care professional," "licensed nurse," "licensed vocational nurse," and "registered nurse."

The proposed amendment to §90.42 updates terminology used in the section, adds physician assistant and advanced practice nurse to the interdisciplinary team that identifies factors and conditions that must be taken into account if the use of restraint is considered for a facility resident, and adds a physician assistant or licensed nurse to those who may review the identified factors and conditions as required of the facility at least annually. The proposed amendment also adds a health care professional acting within the scope of his or her practice to provisions regarding pharmacy services and a health care professional acting within the scope of his or her practice or a person to whom a health care professional has properly delegated performance of a task to provisions regarding specialized nutrition support.

FISCAL NOTE

David Cook, DADS Interim 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 will not have an adverse economic effect on small businesses or micro-businesses, because ICF/IID providers have always been required to use a physician to provide written and oral orders for medication, participate on the interdisciplinary team, develop and implement policies and procedures for automatic stop orders for medications, and order specialized nutritional support for individuals residing in their facilities. Allowing other licensed health care professionals to perform these services should not increase the cost to providers.

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 individuals may receive services from a health care professional other than a physician if the professional is acting within the scope of the professional's practice.

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 Kim Lammons at (512) 438-2264 in DADS Regulatory Services. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-12R03, 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 12R03" 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 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; Texas Health and Safety Code, Chapter 252, which authorizes DADS to license and regulate intermediate care facilities for individuals with an intellectual disability or related conditions; 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.

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