The Texas Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §92.2, concerning definitions; §92.5, concerning health care professional; §92.11, concerning criteria for licensing; §92.41, concerning standards for type A and type B assisted living facilities; §92.61, concerning introduction and application; §92.62, concerning general requirements; §92.63, concerning construction and initial survey of completed construction; §92.64, concerning plans, approvals, and construction procedures; §92.102, concerning abuse, neglect, or exploitation reportable to the Texas Department of Human Services (DHS) by facilities; §92.127, concerning required postings; and the repeal of §92.101, concerning definitions of "abuse," "neglect," and "exploitation," in Chapter 92, Licensing Standards for Assisted Living Facilities.

BACKGROUND AND PURPOSE

The purpose of the proposed amendments, in part, is to implement Senate Bill (SB) 7, 82nd Legislature, First Called Session, 2011. SB 7 added Chapter 260A, Reports of Abuse, Neglect, and Exploitation of Residents of Certain Facilities. The proposed amendments add definitions for "abuse," "neglect," and "exploitation," including definitions that apply to a person under the age of 18. The amendments also require a facility to provide the resident's immediate family, and document the family's receipt of, the DADS telephone hotline number to report suspected abuse, neglect, or exploitation. The proposal amends reporting requirements to include the DADS website as a way to report suspected abuse, neglect, and exploitation and requires a facility to post a sign in public view that includes the DADS hotline number for reporting abuse, neglect, and exploitation. The proposed amendments also require specific documentation to be kept in an employee's personnel records.

SB 7 also amended Texas Health and Safety Code (THSC), §247.002 to allow the provision of skilled nursing services in an assisted living facility for limited purposes. The proposal allows for the provision of services in an assisted living facility by a health care professional within the professional's scope of practice and as authorized by THSC, Chapter 247, for limited purposes.

In addition, the proposal implements the requirements of the 2000 edition of the National Fire Protection Association (NFPA) 101, the Life Safety Code. Additional editorial changes were made for clarity and consistency.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §92.2 adds definitions for "abuse," "neglect," "exploitation," "flame spread," "local code," and "listed." The amendment also updates the definition for "NFPA 101" to reflect the current publication.

The proposed amendment to §92.5 clarifies that a health care professional may coordinate the provision of services to a resident within the professional's scope of practice and as authorized under THSC, Chapter 247.

The proposed amendment to §92.11 limits the provision of skilled nursing services to: coordinating resident care with an HCSSA or health care professional; providing or delegating personal care services and medication administration; assessing a resident to determine the care required; and delivering temporary skilled nursing services for minor illness, injury, or emergency for a period not to exceed 30 days.

The proposed amendment to §92.41 adds a requirement that a facility must provide the resident's immediate family, and document the family's receipt of, the DADS telephone hotline number to report suspected abuse, neglect, or exploitation; for specific documentation to be kept in an employee's personnel records, including a criminal history report; an annual employee misconduct registry check; an annual nurse aide registry check; documentation of an initial tuberculosis screening; documentation of an employee's compliance with or exemption from the facility vaccination policy; and a signed statement in an employee's record acknowledging that an employee may be held criminally liable for failure to report suspected abuse, neglect, or exploitation.

The proposed amendment to §92.61 updates the NFPA 101 Life Safety Code references from the 1988 edition to the 2000 edition. This includes updating organization names, terminology, and references.

The proposed amendment to §92.62 updates the NFPA 101 Life Safety Code references from the 1988 edition to the 2000 edition. This includes updating organization names, terminology, and references.

The proposed amendment to §92.63 updates the NFPA 101 Life Safety Code references from the 1988 edition to the 2000 edition. This includes updating organization names, terminology, and references.

The proposed amendment to §92.64 updates the NFPA 101 Life Safety Code references from the 1988 edition to the 2000 edition. This includes updating organization names, terminology, and references.

The proposed repeal of §92.101 removes definitions for "abuse," "neglect," and "exploitation" that have been consolidated in the proposed amendment to §92.2.

The proposed amendment to §92.102 updates the reporting requirements for abuse, neglect, or exploitation and requires a facility to obtain signed statements from employees, as a condition of employment, acknowledging that an employee may be held criminally liable for failure to report suspected abuse, neglect, or exploitation.

The proposed amendment to §92.127 requires an assisted living facility to post a sign in a public area stating that suspected abuse, neglect, and exploitation must be reported to DADS at 1-800-458-9858.

FISCAL NOTE

James Jenkins, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendments and repeal are in effect, enforcing or administering the amendments and repeal 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 and repeal will not have an adverse economic effect on small businesses or micro-businesses, because there is no cost to implement the changes. In particular, local building authorities require assisted living facilities to comply with requirements at least as stringent as the 2000 NFPA requirements.

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 and repeal are in effect, the public benefit expected as a result of enforcing the amendments and repeal is an increased assurance of the health and safety of residents in assisted living facilities.

Ms. Durden anticipates that there will not be an economic cost to persons who are required to comply with the amendments and repeal. The amendments 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 Kim Lammons at (512) 438-2264 in DADS Regulatory Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-13R09, 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 13R09" in the subject line.

STATUTORY AUTHORITY

The amendments 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; Texas Health and Safety Code, Chapter 247, which authorizes DADS to license and regulate assisted living facilities; 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 amendments implement Texas Government Code, §531.0055; Texas Health and Safety Code, §§247.001 - 247.069; and Texas Human Resources Code, §161.021.