The Texas Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §§92.2, 92.41, 92.51, and 92.53 and new §92.42, in Chapter 92, Licensing Standards for Assisted Living Facilities.

BACKGROUND AND PURPOSE

The purpose of the amendments and new section is to implement §247.070, Texas Health and Safety Code (THSC), as added by House Bill (H.B.) 1337 of the 84th Legislature, Regular Session, 2015, regarding Guardianship Orders, and changes to §247.026 and §247.029, THSC, as added by H.B. 2588 of the 84th Legislature, Regular Session, 2015, regarding Alzheimer's Disclosure.

The proposal specifies the process an assisted living facility (ALF) must follow to request a copy of any court order appointing a guardian of a resident or a resident's estate from the resident's nearest relative or the person responsible for the resident's support and requires an ALF to maintain a copy of any court order appointing a guardian of a resident or resident's estate in the resident's records.

The proposal defines the term "Alzheimer's disease and related disorders" and requires an ALF to include in the facility's Alzheimer's disclosure statement whether the facility is certified under Texas Health and Safety Code (THSC), §247.029, to provide personal care services to residents with Alzheimer's disease and related disorders. An ALF must update the disclosure statement to reflect changes in special services provided to residents with Alzheimer's disease and related disorders.

The proposal also amends §92.41 to reflect an updated cite for a Texas Department of State Health Services (DSHS) food-safety rule contained in §92.41(m). The amendment will aid DADS in enforcing the provisions of §92.41.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §92.2 adds a definition for "Alzheimer's Assisted Living Disclosure Statement form" and "Alzheimer's disease and related disorders."

The proposed amendment to §92.41 requires an ALF to keep a copy of the most recent court order appointing a guardian of a resident and letters of guardianship in the resident's records.

The proposed amendment to §92.41 also updates a repealed cite for a DSHS rule contained in §92.41.

The proposed new §92.42 adds requirements regarding an ALF's responsibility to acquire guardianship records and letters of guardianship for a resident who has a court-appointed guardian and a resident for whom a guardian is appointed after the resident enters an assisted living facility. The proposed new section also explains which guardianship documents a facility must request, when the facility must request the documents, how often the facility must request the documents, and where the facility must keep the documents.

The proposed amendment to §92.51 updates the reference to §92.4(c) and deletes disclosure information found in §92.51(c)(1) - (2). This information is addressed in the proposed new §92.53(d). Also, the proposal deletes obsolete information in §92.51(f).

The proposed amendment to §92.53 adds subsection (d), which requires an ALF to use the Alzheimer's Assisted Living Disclosure Statement form to clarify whether an ALF is licensed under THSC §247.029 for the provision of personal care services to residents with Alzheimer's disease and related disorders. The subsection also requires an ALF to update this form as needed to reflect changes in special services provided to residents with Alzheimer's disease and related disorders.

FISCAL NOTE

David Cook, DADS Chief Financial Officer, has determined that, for the first five years the proposed rules are in effect, enforcing or administering the amendments and new section 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 rules will not have an adverse economic effect on small businesses or micro-businesses because there is no cost to nursing facilities or assisted living facilities to comply with the proposed rules.

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 proposed amendments and new section are in effect, the public benefit expected as a result of enforcing the proposed amendments and new section is there will be clear communication to guardians about a resident's care and allegations of abuse, neglect, or exploitation. The public also will benefit from the adoption of a standard definition of Alzheimer's disease and related disorders and the requirement for a facility to disclose whether it is certified by DADS to provide personal care and services to residents with Alzheimer's disease and related disorders.

Ms. Henderson anticipates that there will not be an economic cost to persons who are required to comply with the amendments and new section. The proposed amendment and new section 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 Sharon Wallace at (210) 619-8292 in DADS Long Term Care Regulatory Services. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-15R11, 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 15R11" 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 and Texas Health and Safety Code (THSC), §247.025, which authorizes the licensing of assisted living facilities.

The amendment implements Texas Government Code, §531.0055; Texas Human Resources Code, §161.021; and THSC, §247.029.