The Texas Health and Human Services Commission (HHSC) adopts, 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. The amendments to §§92.2, 92.41, and 92.53 and new §92.42 are adopted with changes to the proposed text published in the January 15, 2016, issue of the Texas Register (41 TexReg 592). The amendments to §92.51 are adopted without changes to the proposed text.

The amendments and new section are adopted 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, and amendments to §247.026 and §247.029, THSC, as made by H.B. 2588 of the 84th Legislature, Regular Session, 2015.

In response to H.B. 1337, the adoption requires an assisted living facility (ALF) to request a copy of any court order and letters of guardianship 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 in a resident's records a copy of the most recent court order and letters of guardianship received by the ALF.

In response to H.B. 2588, the adoption defines the term "Alzheimer's Assisted Living Disclosure Statement Form" and "Alzheimer's disease and related disorders" and requires an ALF to use the Alzheimer's Assisted Living Disclosure Statement Form and amend the form to reflect any changes in the operation of the ALF that will affect the information in the form.

The adoption also corrects a reference in §92.41 to a rule of the Texas Department of State Health Services regarding food safety.

Minor editorial changes were made to §92.41(h)(2)(F) and §92.42(a), (b), and (d). Changes were made to §92.53(d) and (e) to clarify when an ALF must amend and provide the Alzheimer's Assisted Living Disclosure Statement form. A reference to a section in the Life Safety Code was corrected in §92.53(i)(9).

DADS received written comments from Coalition for Nurses in Advance Practice, Texas Association of Residential Care Communities, and the State Long-term Care Ombudsman. A summary of the comments and the responses follows.

Comment: Two commenters expressed concern regarding the definition of "Alzheimer's disease and related disorders" in §92.2. One commenter questioned the use of clinical references in the definition and recommended the rule provide a comprehensive definition of Alzheimer's disease and related disorders. Another commenter requested that the agency include in the definition a description of dementia and a definition of "related disorders."

Response: Texas Health and Safety Code §247.029 authorizes the HHSC Executive Commissioner to adopt by reference a definition of "Alzheimer's disease and related disorders" that is published in a generally accepted clinical resource for medical professionals. Because the understanding and classification of these conditions may change as research and treatment continue, the agency has referenced the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders and the Centers for Disease Control and Prevention as sources that describe the diseases and disorders included in this term. In response to the comment, the agency changed the definition to reference Alzheimer's disease and any other irreversible dementia instead of cognitive disorders to be more specific about the diseases and disorders included in the term.

Comment: One commenter suggested adding the terms "practitioner" to §92.41(e)(1), (e)(5)(I), (h)(1)(D), (j)(1), (j)(1)(B), (j)(1)(C), (j)(4)(A), (j)(6)(A)(i), (k)(1)(B), (m)(4), (n)(4)(D), (p)(5)(B)(i), and (p)(5)(B)(ii). In addition, the commenter requested that the agency add the terms "advanced practice registered nurse" and "physician assistant" to §92.41(e)(4) and §92.41(h)(1)(F). The commenter stated that these changes would make the rules more accurately reflect which practitioners are authorized to order and provide services to residents of an ALF.

Response: The suggested revisions to §92.41 would substantively affect responsibilities under the chapter and are outside the scope of the proposed changes. The agency will consider the implications of the suggested changes and may propose amendments to the rule in the future. The agency did not make any changes in response to this comment.

The amendment is 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 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.