As required by Texas Government Code, §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all of its functions were transferred to the Health and Human Services Commission (HHSC) in accordance with Texas Government Code, §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1, govern functions previously held by DADS that have transferred to HHSC. Texas Government Code, §531.0055, requires the executive commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, including rules in Title 40, Part 1. Therefore, the executive commissioner of HHSC proposes amendments to §92.2, concerning Definitions; §92.125, concerning Resident's Bill of Rights and Provider Bill of Rights; §92.127, concerning Required Postings; and §92.551, concerning Administrative Penalties; and the repealed and new §92.801, concerning Access to Residents and Records by the Long-Term Care Ombudsman Program, in Chapter 92, Licensing Standards for Assisted Living Facilities.

BACKGROUND AND PURPOSE

HHSC proposes changes to 40 TAC, Chapter 92, governing Assisted Living Facilities, to make HHSC rules consistent with federal rules governing the Office of the State Long-Term Care Ombudsman (the Office) by requiring nursing facilities (NFs) and assisted living facilities (ALFs) to allow the Office access to the facilities. The proposed changes will also allow HHSC to impose administrative penalties if a facility does not grant access in accordance with the rules.

SECTION-BY-SECTION SUMMARY

Proposed §92.2 adds new definitions for "Certified Ombudsman," "CFR," "Managing local ombudsman," "Ombudsman intern," "Ombudsman Program," "Private and unimpeded access," "State Ombudsman," and "Willfully interfere." Proposed §92.2 deletes the definition for "Ombudsman." Multiple definitions are amended to reflect the change from DADS or DHS to HHSC.

Proposed §92.125 and §92.127 update terms related to the Ombudsman Program.

Proposed §92.551(a)(4)-(5) adds that HHSC may assess an administrative penalty against a license holder who retaliates against a representative of HHSC completing the work required to enforce this chapter or preserving evidence of a violation or a rule, standard, or order adopted or a term of a license issued under Chapter 247, Texas Health and Safety Code.

Proposed §92.551(a)(8)-(9) adds that HHSC may assess an administrative penalty against a license holder who willfully interferes with or retaliates against the State Ombudsman, certified ombudsman or an ombudsman intern performing the functions of the Ombudsman Program as described in Title 26, Part 1, Chapter 88, relating to State Long-Term Care Ombudsman Program. Proposed §92.551(g)(2)(B) changes a cross reference to subsection (a) of this section based on the addition of paragraphs (8) and (9).

Proposed new §92.801(a) requires an ALF to provide immediate access to any resident by the State Ombudsman, certified ombudsman or an ombudsman intern. Proposed §92.801(b) outlines the assisted living facility requirements to allow access to a facility and a resident by the State Ombudsman, certified ombudsman and an ombudsman intern during regular visiting hours and for the State Ombudsman and a certified ombudsman at a time other than regular business hours to complete an investigation. Proposed §92.801(a)(c) sets forth the conditions that must be met to allow the State Ombudsman or a certified ombudsman access to all files, records and other information concerning an incident, as well as the administrative records, policies and documents available to the residents and general public. Proposed §92.801(d) adds requirements related to the release of HIPPA information to the State Ombudsman or a certified ombudsman.

FISCAL NOTE

Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that, for each year of the first five years the proposed amendments, new rule, and repeal are in effect, there will be no fiscal implications to state or local governments as a result of enforcing and administering the sections as proposed.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the sections will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of employee positions;

(3) implementation of the proposed rules will not require an increase or decrease in future legislative appropriations;

(4) the proposed rules will not affect fees paid to HHSC;

(5) the proposed rules will not create a new rule;

(6) the proposed rules will expand an existing rule;

(7) the proposed rules will not change the number of individuals subject to the rule; and

(8) the proposed rules will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Ms. Rymal has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities because the rules do not impose any additional costs on small businesses, micro-businesses, or rural communities that are required to comply with the rules.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There are no anticipated economic costs to persons who are required to comply with the proposed rules.

There is no anticipated negative impact on local employment.

COSTS TO REGULATED PERSONS

Texas Government Code, §2001.0045, does not apply to these proposed rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas; do not impose a cost on regulated persons; are necessary to receive a source of federal funds and to comply with federal law; and are necessary to implement state legislation that does not specifically state that §2001.0045 applies to the proposed rules.

PUBLIC BENEFIT AND COSTS

Mary T. Henderson, Associate Commissioner of HHSC Long-Term Care Regulatory, has determined that, for each year of the first five years the amendments, new rule, and repeal are in effect, the public benefit expected as a result of enforcing the amendments, new rule, and repeal is the removal of duplicative rules from the HHSC rule base.

TAKINGS IMPACT ASSESSMENT

HHSC 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 Josie Esparza at (512) 438-4077 in HHSC Long-Term Care Regulatory Services Division. Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 149030, Mail Code H600, Austin, Texas 78714-9030, or street address 4900 North Lamar Boulevard, Austin, Texas 78751; or emailed to HHSRulesCoordinationOffice@hhsc.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 HHSC before 5:00 p.m. on the last working day of the comment period; or (3) emailed by midnight on the last day of the comment period. Please indicate "Comments on Proposed Rule 16R12."

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; and Texas Human Resources Code, §101A.051, which provides that the HHSC executive commissioner shall adopt rules regarding the administration by HHSC programs and services for older individuals.

The amendment implements Texas Government Code, §531.0055, and Texas Human Resources Code, §101A.051.