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 Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate.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 performed 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, HHSC proposes amendments to §15.5, concerning Definitions, and §15.1408, concerning Administrative Penalties, in Title 40, Chapter 15, Licensing Standards for Prescribed Pediatric Extended Care Centers.

BACKGROUND AND PURPOSE

The proposed amendments implement Texas Health and Safety Code, §248A.2515, as added by House Bill (H.B.) 2025, 85th Legislature, Regular Session, 2017. Section 248A.2515 requires HHSC to develop a system to record and track the scope and severity of licensure violations by a prescribed pediatric extended care center (PPECC) for the purpose of assessing an administrative penalty or taking enforcement action.

The system must be similar to the one used by the Centers for Medicare & Medicaid Services to categorize the scope and severity of violations for nursing facilities.

The proposed amendments also change references from "DADS" to "HHSC" to reflect that DADS was abolished effective September 1, 2017, and its functions were transferred to HHSC.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §15.5 adds a definition for "HHSC," amends the definition of "DADS" to mean "HHSC," and amends the definition of "commissioner" to mean the executive commissioner of HHSC. These changes are necessary because DADS was abolished and its functions were transferred to HHSC. When all references to "DADS" and "commissioner" are removed from Chapter 15, the definitions will be deleted. The proposed amendments also made some acronyms, defined terms, and moved them to be in alphabetical order.

The proposed amendment to §15.1408, Administrative Penalties, adds definitions for "actual harm," "immediate threat to the health or safety of a minor," "isolated," "pattern of violation," "potential for minimal harm," and "widespread in scope." Definitions of those terms are necessary for implementation of the proposed system to record and track licensure violations. Further, the proposed amendment replaces the current administrative penalties table with one that categorizes licensure violations based on their scope and severity and sets forth a penalty range for each category.

FISCAL NOTE

Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that for each year of the first five years that the proposed amendments will be in effect, there may be fiscal implications to revenues of state government as a result of enforcing and administering the amendments. HHSC lacks sufficient data to determine if the rule as proposed will result in the collection of administrative penalties in greater or lesser amounts than under current rules.

Ms. Rymal has determined there will be no additional cost to state government because the tracking functionality related to scope and severity currently exists in regulatory survey operations' database and only requires activation for the affected program types. There will be no fiscal implications to local governments as a result of enforcing and administering the rules as proposed.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the proposed amendments 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 the agency;

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

(6) the proposed rules will not expand, limit, or repeal an existing rule;

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

(8) the proposed rules will not have an effect on the state's economy.

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

Greta Rymal has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. There are currently no PPECCs licensed in Texas.

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 amendments are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT

Mary T. Henderson, Associate Commissioner for Long-Term Care Regulatory Services, has determined that for each year of the first five years the amendments are in effect, the public will benefit from HHSC being able to more efficiently assess administrative penalties, enhancing its ability to enforce health and safety standards in licensed PPECCs.

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 e-mailed to HHSCRulesCoordinationOffice@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 before 5:00 p.m. on the last working day of the comment period; or (3) e-mailed by midnight on the last day of the comment period. When e-mailing comments, please indicate "Comments on Proposed Rule 40R063" 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 system; and Texas Health and Safety Code, §248A.101, which authorizes the executive commissioner to adopt rules regulating prescribed pediatric extended care centers.

The amendment implements Texas Government Code, §531.0055, and Texas Health and Safety Code, §248A.101.