The Texas Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts 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. The amendments to §§92.2, 92.5, 92.41, and 92.61 - 92.63 are adopted with changes to the proposed text published in the July 26, 2013, issue of the Texas Register (38 TexReg 4710). The amendments to §§92.11, 92.64, 92.102, and 92.127, and the repeal of §92.101 are adopted without changes to the proposed text.

The amendments are adopted, in part, 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, to Texas Health and Safety Code (THSC). The 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 to a resident's immediate family, and document the family's receipt of, the DADS telephone hotline number to report suspected abuse, neglect, or exploitation. The amendments revise reporting requirements to include the DADS website as a way to report suspected abuse, neglect, and exploitation, and require a facility to post a sign in public view that includes the DADS hotline number for reporting abuse, neglect, and exploitation. The amendments also require specific documentation to be kept in an employee's personnel records.

SB 7 also amended THSC §247.002 to allow the provision of skilled nursing services in an assisted living facility for limited purposes. The amendments implement those changes by describing the purposes for which a facility may provide skilled nursing services. The amendments also allow a health care professional to coordinate services within the professional's scope of practice and as authorized by THSC, Chapter 247.

In addition, the amendments implement the requirements of the 2000 edition of the National Fire Protection Association (NFPA) 101, the Life Safety Code.

A change was made to §92.61(a) to reflect that an existing facility is one that operated with a license before January 6, 2014, and new construction is any construction work that began on or after January 6, 2014.

Changes were made to §92.62(e)(2) and (f)(1)(A)(ii) and (iii) to correct inaccurate references to Chapters 18 and 19 of the NFPA. Also, a correction was made to the NFPA reference in §92.62(f)(1)(H). Additionally, the requirements for kitchens in small facilities were moved from the list of requirements for kitchens in large facilities to new §92.62(m)(6)(B) and the remainder of the subparagraphs in (m)(6) have been re-lettered.

A change was made to §92.41(o) to replace the term "local mental health and mental retardation authority" with the term "local authority" to reflect person-first respectful language. In addition, minor editorial corrections were made to §92.5.

DADS received written comments from the Coalition for Nurses in Advanced Practice (CNAP), and seven individuals. A summary of the comments and the responses follows.

Comment: Concerning §92.2(44), one commenter requested that the agency change the reference to "advanced practice nurse" in the definition of "practitioner" to "advanced practice registered nurse" to reflect current terminology resulting from provisions in Senate Bill 406, 83rd Legislature, 2013.

Response: The agency agrees and has changed the reference to an "advanced practice nurse" in the definition of "practitioner" to an "advanced practice registered nurse" to reflect current terminology related to nursing licensure.

Comment: Concerning §92.11(a)(2), one commenter requested that DADS move the proposed text regarding the provision of skilled nursing services in an ALF from §92.11 to §92.41. The commenter believes that the proposed language relates to staffing and does not affect the issuance of a license.

Response: The agency notes that §92.11(a)(2) is consistent with THSC §247.002(1)(D) in describing what an ALF is and the types of services it may provide. No change was made in response to the comment.

Comment: Concerning §92.41, one commenter requested that the term "practitioner" be used in place of the term "physician" because other practitioners may have primary responsibility for managing a resident's health care.

Response: Replacing the term "physician" with "practitioner" in §92.41 is outside of the scope of the current amendments. The agency will review and consider the suggested change in connection with future amendments to Chapter 92. No changes were made in response to the comments.

Comment: Concerning §92.61(a) and (b)(4), two commenters expressed concern that existing facilities must comply with the 2000 edition of the Life Safety Code and recommended that DADS give existing facilities the discretion to comply with the portions of the NFPA, 101, Life Safety Code, 2000 edition, as feasible.

Response: The Life Safety Code and the licensing standards note the differences between existing facility licensing requirements and new construction licensing requirements. A new facility must meet the requirements for new construction and an existing facility must meet the requirements for existing construction. The proposed rule does not require existing facilities to upgrade to the new standards or new codes. To clarify which NFPA chapters apply to new construction and which NFPA chapters apply to existing construction, the agency included the titles for the NFPA chapters at each first reference in the section.

Comment: Concerning §92.61(b)(4)(E), two commenters stated that a reference to Chapter 31 of the NFPA 101 should be added to the list of chapters in the NFPA that an ALF must comply with.

Response: The agency agrees. A reference to Chapter 31 of NFPA 101 was inadvertently left out of the rule. The suggested change has been made in response to the comment.

Comment: Concerning §92.61(b)(5)(B), one commenter requested that the Uniform Plumbing Code be added to the list of codes used in the absence of a local code.

Response: The agency agrees and the rule was changed in response to the comment.

Comment: Concerning §92.61(b)(8), one commenter stated it may be difficult for existing facilities to meet the accessibility requirements and requested that the phrase "for facilities built after August 1, 2013, the facility must" be added to the rule language.

Response: The agency disagrees with the comment. Existing licensed facilities only have to meet the requirements in the chapter for existing construction. No changes were made in response to the comment.

Comment: Concerning §92.62(c)(1), one commenter requested that the agency change the term "and" to "and/or" as the latter term was originally used in the phrase "all fires causing damage to the facility and/or equipment must be reported." The commenter believes that the proposed language could be misinterpreted to mean that a facility should only report a fire if the fire damages both a facility and equipment, but not when fire damages the facility or equipment alone. The commenter had a similar concern with the use of the term "and" in §92.62(l) and §92.62(m)(1)(A) and (m)(1)(B) as it relates to a bedroom for a person with a disability or mobility impairment.

Response: The agency agrees that the term "and" may be misinterpreted and has redrafted the sentences to clarify that a fire that causes damage to the facility or equipment must be reported and a bedroom for a person with a physical disability or mobility impairment must meet accessibility standards.

Comment: Concerning §92.62(e)(6), one commenter suggested that the rule should specifically include a reference to charcoal lighter fluid to the list of products that must not be stored in a building where residents are housed. The commenter believes that because charcoal lighter fluid is commonly used at barbecues, many ALFs may not consider the substance to be hazardous, and may, therefore, store it in a building where residents are housed.

Response: The agency agrees and made the suggested change in response to the comment.

Comment: Concerning §92.62(f)(1)(A)(i), one commenter suggested that an exception be written into the rule allowing a quick response head to satisfy the requirement for a heat detector contact in smoke detectors in apartments.

Response: The current amendments encompass updates to references to the Life Safety Code from the 1988 edition to the 2000 edition. Therefore, the comment is outside the scope of the amendments. The agency will consider suggested changes to the fire alarm provisions of Chapter 92 in future amendments to the chapter. No changes were made in response to the comment.

Comment: Concerning §92.62(g)(4), one commenter suggested changing the term "handicap standards" to "Texas Accessibility Standards".

Response: The agency agrees that the suggested term is more current and the rule was changed in response to the comment.

Comment: Concerning §92.62(h)(11), one commenter questioned whether the addition of accessibility standards is to require existing facilities to upgrade restrooms in compliance with the standards. The commenter requested that the proposed rule provide that existing facilities must comply with Texas Accessibility Standards or Americans with Disabilities Act requirements.

Response: The requirement for an ALF to comply with the Texas Accessibility Standards or the Americans with Disabilities Act is found at §92.61(b)(8). It is not the intent of the agency to duplicate that requirement in §92.62(h). No changes were made in response to the comment.

Comment: Concerning §92.62(j)(1), one commenter stated that the correct designation for the portable dry chemical fire extinguisher should be "20-B:C" and not "20-B Class B:C."

Response: The agency agrees and the rule was changed in response to the comment.

Comment: Concerning §92.62(j)(7), three commenters stated that the reference to "NFPA 10A" is incorrect and should be changed to "NFPA 10."

Response: The agency agrees and the rule was changed in response to the comment.

Comment: Concerning §92.63(c)(3), one commenter asked if the term "architectural section" is meant to refer to Life Safety Code staff.

Response: The term "architectural section" is meant to refer to DADS Life Safety Code staff. The rule was changed accordingly.

Comment: Concerning §92.127, one commenter requested that all documents or information that an ALF is required to post, including information regarding authorized electronic monitoring in §92.129(g), be placed in §92.127 so providers can refer to one section in the rules for information about every required posting.

Response: Section 92.127 is amended to require an ALF to post information about who to contact in cases of suspected abuse, neglect, or exploitation. The amendment implements SB 7, 82nd Legislature, First Called Session, 2011. An amendment to §92.129 was not proposed. The agency will consider placing requirements regarding all information or documents an ALF must post in one section as part of a future amendment to Chapter 92. No changes were made in response to the comment.

The amendments are 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 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.