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 Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate.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 adopts 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Bill of Rights; §92.127, concerning Required Postings; and §92.551, concerning Administrative Penalties; and the repealed and new §92.801, concerning Access to Residents and Records by the Long-Term Care Ombudsman Program, in Chapter 92, Licensing Standards for Assisted Living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, without changes to the proposed text published in the January 12, 2018, issue of the Texas Register (43 TexReg 220).

BACKGROUND AND JUSTIFICATION

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

References to the "Texas Department of Human Services" or "DHS" and references to the "Department of Aging and Disability Services" or "DADS" are replaced with references to the "Texas Health and Human Services Commission" or "HHSC" throughout the rules.

COMMENTS

The 30-day comment period ended February 11, 2018. During this period, HHSC received one comment regarding the proposed rule from Disability Rights Texas (DRTx). A summary of the comment and HHSC's response follows.

Comment: A commenter proposes that HHSC amend various sections in Chapter 92 to state that both DRTx and the Ombudsman have private and unimpeded access to assisted living facilities, and administrative penalties would be imposed by HHSC when either the Ombudsman or DRTx experience willful interference by the facility.

Response: HHSC declines to add language to Chapter 92 that would authorize HHSC to impose an administrative penalty against a facility if the facility failed to provide private and unimpeded access to a resident by a representative of the protection and advocacy organization, as such authority already exists in statute.

Currently Texas Health and Safety Code §247.064(b)(7), Resident's Bill of Rights, requires a facility to provide to a resident unrestricted communication, including personal visitation with any person of the resident's choice, at any reasonable hour, including family members and representatives of advocacy groups and community service organizations. Section 92.125(a)(3)(J), Resident's Bill of Right and Provider Bill of Rights, mirrors the statutory provision. In addition, per Texas Health and Safety Code §247.0451 and §247.0452, HHSC is authorized to assess an administrative penalty against a facility that violates §247.064 or §92.125(a)(3)(J).

STATUTORY AUTHORITY

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; Texas Health and Safety Code, §247.0011, which authorizes the licensing of assisted living facilities, and §247.025, which requires the HHSC executive commissioner to adopt rules to implement Chapter 247.