The Texas Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), proposes amendments to §90.3, concerning Definitions; and §90.16, concerning Change of Ownership, in Chapter 90, Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions.

BACKGROUND AND PURPOSE

The proposed amendments revise requirements related to a change of ownership of a license holder for an intermediate care facility for individuals with an intellectual disability or related conditions (ICF/IID). Under the proposed amended rules, a license holder will not be required to apply for a new license if the ownership structure of the license holder changes but the license holder is the same legal entity, as evidenced by having the same federal tax identification number. The proposed amendments add definitions for terms related to a change of ownership and ownership interests, allow DADS to conduct a desk review instead of an on-site health survey if the applicant for a license resulting from a change of ownership meets certain requirements, and require a license holder that does not undergo a change of ownership but adds an owner with a disclosable interest to notify DADS of the addition no later than 30 days after the addition of the owner.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §90.3 amends the definition of "change of ownership" to reflect that change of ownership occurs when a prospective license holder has a different tax identification number than the current license holder of the same ICF/IID, except that the substitution of a personal representative for a deceased license holder is not a change of ownership. The proposed amendment removes a person owning at least 5 percent interest in the license holder from the definition of a "controlling person of an applicant, license holder, or facility" and includes that information in the definition of "disclosable interest." The proposed amendment adds definitions of "direct ownership interest," "disclosable interest," and "indirect ownership interest." The amendment removes the definition of "qualified mental retardation professional (QMRP)" and replaces it with "QIDP" (qualified intellectual disability professional), to be consistent with federal regulations. The amendment also moves the definition of "Centers for Medicare and Medicaid Services (CMS)" to the correct alphabetical location according to the acronym. Additional editorial changes are proposed for clarity and consistency.

The proposed amendment to §90.16 removes outdated requirements regarding a change of ownership. The proposed amendment also states that DADS conducts an on-site health inspection before issuing a license as a result of a change of ownership, except DADS may conduct a desk review instead of an on-site health inspection if less than 50 percent of the direct or indirect ownership interest of the license holder has changed, or if every owner with a disclosable interest in the new license holder had a disclosable interest in the former license holder. The proposed amendment clarifies that DADS may also conduct an on-site Life Safety Code inspection before issuing a license as a result of a change of ownership. The proposed amendment also requires a license holder that does not undergo a change of ownership but adds an owner with a disclosable interest to notify DADS of the addition no later than 30 days after the addition of the owner.

FISCAL NOTE

David Cook, Deputy 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, because the proposal does not impose requirements that result in a cost to license holders.

PUBLIC BENEFIT AND COSTS

Mary T. Henderson, DADS Associate Commissioner for Regulatory Services, has determined that, for each year of the first five years the amendments are in effect, the public benefit expected as a result of enforcing the amendments is a reduction in paperwork and fewer on-site surveys associated with changes of ownership that are unlikely to affect services provided by the license holder.

Mr. Cook anticipates that there will not be an economic cost to persons who are required to comply with the amendments. The amendments 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 Barbara Blankenship at (512) 438-5502 in DADS Regulatory Services. 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. 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 state working day of the comment period; or (3) faxed or emailed by midnight on the last day of the comment period. When faxing or emailing comments, please indicate "Comments on Proposed Rule 16R11" 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, and Texas Health and Safety Code, §252.008, which authorizes the HHSC executive commissioner to adopt rules related to the licensure of an ICF/IID.

The amendment implements Texas Government Code, §531.0055, and Texas Health and Safety Code, §252.008.