The Texas Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), an amendment to §90.3 and new §90.44, in Chapter 90, Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions.

BACKGROUND AND PURPOSE

The purpose of the amendment and new section is to implement House Bill 2789 of the 84th Legislature, Regular Session, 2015, which added new §161.088 to the Human Resources Code. The proposal requires an intermediate care facility for individuals with an intellectual disability or related conditions (ICF/IID) to ensure that an employee who is hired on or after May 1, 2016, completes trauma-informed care training before working directly with a resident. The proposal provides that an employee works directly with a resident if the employee serves on a resident's interdisciplinary team or otherwise works with a resident to implement the resident's individual program plan. The proposal also updates the definition for "facility" and adds a definition for "individual program plan."

SECTION-BY-SECTION SUMMARY

The proposed amendment to §90.3 updates the definition of "facility" to clarify that in Chapter 90, Subchapters C, D and F, the term includes a program provider that must comply with those subchapters in accordance with 40 TAC §9.212. The proposed amendment also adds a definition for "individual program plan," a term used in proposed new §90.44.

The proposed new §90.44 requires an ICF/IID to ensure that an employee who is hired on or after May 1, 2016, completes trauma-informed care training before working directly with a resident. The proposal provides that an employee works directly with a resident if the employee serves on a resident's interdisciplinary team or otherwise works with a resident to implement the resident's individual program plan.

FISCAL NOTE

David Cook, DADS Chief Financial Officer, has determined that, for each year of the first five years the proposed amendment and new section are in effect, there are no foreseeable implications relating to costs or revenues of state and local governments.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed amendment and new section may have an adverse economic effect on small businesses and micro-businesses, as providers may incur costs because new employees who work directly with the residents must take the training before working with the residents. DADS is unable to estimate the costs associated with these activities, but it is expected to be minimal because the training will be provided by DADS and will be computer-based.

DADS estimates that the number of small businesses and micro-businesses subject to the proposed amendment and new section is less than 102. This estimate is based on DADS records, which indicate that 102 entities that have licenses to operate an ICF/IID are formed for the purpose of making a profit, one of the requirements for being a small or micro-business. DADS does not have data regarding the number of employees and gross receipts to determine what percentage of these entities meet the definition of a small business or micro-business. DADS is unable to estimate the projected economic impact on small businesses and micro-businesses.

No alternatives were considered because the training is required by statute.

PUBLIC BENEFIT AND COSTS

Mary T. Henderson, DADS Assistant Commissioner for Regulatory Services, has determined that, for each year of the first five years the amendment and new section are in effect, the public benefit expected as a result of enforcing the amendment and new section is that specialized training will protect the health and safety of ICF/IID residents.

Ms. Henderson anticipates that there will be an economic cost to persons who are required to comply with the amendment and new section. DADS is unable to estimate the economic cost to persons who are required to comply with the amendment and new section, but it is expected to be minimal because the training will be provided by DADS and will be computer-based

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 Crystal Beard at (512) 438-2264 in DADS Regulatory Services. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-15R08, 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 15R08" 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 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; 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; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendment affects Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021 and §32.021.