The Texas Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §90.3, concerning definitions; and §90.42, concerning standards for facilities serving individuals with an intellectual disability or related conditions, in Chapter 90, Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions. The amendment to §90.42 is adopted with changes to the proposed text published in the February 1, 2013, issue of the Texas Register (38 TexReg 481). The amendment to §90.3 is adopted without changes to the proposed text.

The amendments are adopted 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."

The 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 90.42 allows a licensed health care professional acting within the scope of the professional's practice 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. In addition, §90.42 allows a licensed health care professional acting within the professional's scope of practice to delegate to unlicensed staff the provision of specialized nutritional support.

DADS received a written comment from one individual. A summary of the comment and the response follows.

Comment: Regarding §90.42, relating to physician's orders for restraints, the commenter questioned if the rule can be interpreted to mean that a physician may be asked to write an order for restraint that occurred the previous day for a patient he or she does not know and for a situation or event about which that doctor has no knowledge.

Response: The agency responds that a physician must certify that the resident of an ICF/IID needs the level of care provided by an ICF/IID, establish a written plan of care for the resident, and serve as a member of the resident's interdisciplinary team. In addition, an ICF/IID is required to ensure the availability of physician services 24 hours a day. Therefore, a physician who is knowledgeable of the resident's conditions, needs, and behaviors should be available to issue an order for restraint, even if the physician was not present when the restraint occurred.

While a physician should be available to issue an order for restraint, the agency has broadened the rule, at §90.42(e)(4)(G), to authorize a health care professional acting within the professional's scope of practice to issue an order. This is consistent with other rules that have been amended to allow health care professionals acting within the scope of their practice to provide services.

The amendment is adopted under Texas Government Code, §531.0005, 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.