The Texas Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), proposes amendments to Chapter 90, Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions, §90.3, concerning Definitions; §90.50, concerning Emergency Preparedness and Response; §90.61, concerning Introduction, Application, and General Requirements for Facilities for Persons with an Intellectual Disability or Related Conditions; and §90.74, concerning Safety Operations.

BACKGROUND AND PURPOSE

The Centers for Medicare & Medicaid Services (CMS) adopted a rule that made the 2012 edition of two publications of the National Fire Protection Association (NFPA)-the Life Safety Code (NFPA 101) and the Health Care Facilities Code (NFPA 99)-apply to an intermediate care facility for individuals with an intellectual disability or related conditions (ICF/IID). Therefore, the proposed amendments refer to the 2012 editions of those publications and make references to the publications consistent throughout the amended sections. Consistent with the CMS rule, the proposed amendments allow an existing small facility until July 5, 2019, to be in compliance with the NFPA provisions in Chapter 33 regarding sprinklers and heat detection systems in attics.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §90.3 clarifies that "Life Safety Code" is synonymous with NFPA 101 and adds a definition of the acronym "NFPA." Definitions of "NFPA 99" and "NFPA 101" are added to specify the edition of the codes adopted by CMS, and to explain how to obtain a copy of NFPA 99 and NFPA 101.

The proposed amendment to §90.50 replaces the term "Life Safety Code, 2000 Edition" with a reference to the newly defined term, "NFPA 101."The proposed amendment also adds a new requirement that a large facility's fire safety plan must include a provision concerning "emergency phone call to fire department." The 2012 edition of NFPA 101 added a requirement that a large facility's fire safety plan include a provision for calling a fire department, in addition to any automatic notification.

The proposed amendment to §90.61 deletes references to the "Life Safey Code," using the newly defined term "NFPA 101" in its place. The proposed amendment deletes references to the 2000 and 2001 edition NFPA publications. The proposed amendment deletes the definitions of several terms from subsection (c) because they are included in §90.3. The proposed amendment changes dates in the descriptions of "new construction" and an "existing facility" in new subsection (c) to establish that new construction is any construction work that began on or after July 5, 2016, and an existing facility is one that was operating with a license before November 1, 2016. These descriptions determine which chapters of the 2012 edition of NFPA 101 will apply to an ICF/IID. The amendment also requires an ICF/IID to comply with a Tentative Interim Amendment issued by the NFPA for any of the NFPA publications with which an ICF/IID is required to comply. The amendment includes a list of Tentative Interim Agreements that have been issued for NFPA 101 and NFPA 99. The amendment also corrects references to statutes.

The proposed amendment to §90.74 uses the acronym "NFPA" to refer to a publication, because the acronym is now a defined term. The proposed amendment also removes a reference to the 2000 edition of NFPA 101 to be consistent with the definition of "NFPA 101," which means the 2012 edition.

FISCAL NOTE

David Cook, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendments are in effect, enforcing or administering the amendments 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 will not have an adverse economic effect on small businesses or micro-businesses.

PUBLIC BENEFIT AND COSTS

Mary T. Henderson, Assistant Commissioner, has determined that, for each year of the first five years the amendments are in effect, the public will benefit from updated rules that are designed to better protect residents of an ICF/IID from fire.

Ms. Henderson anticipates that ICF/IIDs will incur costs to comply with the rules that CMS adopted effective July 5, 2016. However, because all ICF/IIDs in Texas are federally certified, an ICF/IID would incur those costs, even if DADS did not update the licensing rules. The amendment 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 Barbie Blankenship at (512) 438-5502 in DADS Regulatory Services Division. Written comments on the proposal may be submitted to Barbie Blankenship at 701 West 51st Street, Austin, Texas 78751, Mail Code E-370; or via email to barbara.blankenship@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 16R20" 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 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; Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program; Texas Health and Safety Code, §252.033, which authorizes DADS to license ICF/IIDs; and Texas Health and Safety Code, §252.008, which requires the HHSC executive commissioner to adopt rules related to the administration and implementation of Chapter 252.

The amendment affects Texas Government Code, §531.0055 and §531.021; Texas Human Resources Code, §32.021; and Texas Health and Safety Code, §252.0332 and §252.008.