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 Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate.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, the Executive Commissioner of HHSC proposes amendments to §92.4, License Fees; §92.20, Provisional License; §92.51, Certification of a Facility or Unit for Persons with Alzheimer's Disease and Related Disorders; and §92.81, Inspections and Surveys; and the repeal of and new §92.15, Renewal Procedures and Qualifications, in Title 40, Chapter 92, Licensing Standards for Assisted Living Facilities.

BACKGROUND AND PURPOSE

The purpose of the proposal is to implement the part of House Bill 2025, 85th Legislature, Regular Session, 2017, that increases the term of a license for an assisted living facility from two years to three years. The proposed rules create a system under which initial licenses have a term of three years and existing licenses expire on staggered dates to extend license periods. In addition, the proposed rules prorate license fees as appropriate. The proposed rules also extend the length of certification for an Alzheimer's facility or unit from two years to three years. The proposed rules clarify that at least one inspection will be conducted at an assisted living facility every two years.

The proposed rules change "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 §92.4 prorates the license fee based on the term of the license for an initial license, change of ownership license, renewal license, and Alzheimer's certification. In addition, the proposed amendment increases the fee that a license holder must pay for an increase in capacity of a facility from $5.00 to $7.50 for each unit of capacity approved. The proposed amendment also adds credit cards as a method of payment for licensing fees. The proposed amendment also deletes outdated Life Safety Code references from the fee schedules

The proposed repeal of §92.15 allows new §92.15 to be proposed, which also addresses the requirements for renewing a license.

Proposed new §92.15 describes the staggered system under which the term of a license will increase from two years to three years. Under the system, a new license will be valid for three years and renewal licenses will be staggered as two and three-year licenses until all licenses have a three-year term. The proposed new section describes what a license holder must submit to HHSC for a timely and sufficient application to renew a license. Like current §92.15, the proposed new section states that it is the responsibility of a license holder to ensure that a renewal application is timely received by HHSC.

The proposed amendment to §92.20 extends the term of a provisional license from two years to three years.

The proposed amendment to §92.51 extends the validity of an Alzheimer's certificate for a facility or unit from two years to three years, to be consistent with the term of a license.

The proposed amendment to §92.81 states that HHSC inspects a facility at least once every two years after the initial inspection. This provision clarifies that HHSC will continue to inspect facilities at least once every two years, even though a license is valid for three years.

FISCAL NOTE

Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that for each year of the first five years that the proposed rules will be in effect, there will be implications to state government revenue as a result of enforcing and administering the rules as proposed. The expected effect on revenue for each year are increases of $32,800 General Revenue (GR) in State Fiscal Year (SFY) 2019, $61,100 GR in SFY 2020, $4,800 GR in SFY 2021, and $3,900 GR in SFY 2022, and a reduction of $23,100 in SFY 2023.

There are no expected implications to costs or revenues of local governments.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rules 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 HHSC employee positions;

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

(4) the proposed rules will affect fees paid to HHSC;

(5) the proposed rules will create a new rule;

(6) the proposed rules will 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 affect 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. The rules do not impose any additional costs on small businesses, micro-businesses, or rural communities. The proposal increases license fees but the increase is offset by the longer term of a license.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

Greta Rymal has also determined that for the first five years the rules are in effect there are no anticipated economic costs to persons who are required to comply with the proposed rules, because the increase in license fees is offset by the longer term of a license.

There is no anticipated negative impact on local employment.

COSTS TO REGULATED PERSONS

Texas Government Code, §2001.0045 does not apply to these rules because they are necessary to implement legislation that does not specifically state that §2001.0045 applies.

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 rules are in effect, the public benefit will be increased efficiency in the licensure process by extending the term of a license from two years to three years.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that this proposal does not restrict or limit an owner' 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 Sandy Herrera at (512) 438-4681 in HHSC Long-Term Care Regulatory. Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 149030, Mail Code H600, Austin, Texas 78714-9030; street address 4900 North Lamar Boulevard, Mail Code H600, Austin, Texas 78751; or e-mailed 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 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 40R064" 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, §247.025, which authorizes the executive commissioner to adopt rules necessary to license assisted living facilities.

The amendment implements Texas Government Code, §531.0055 and Texas Health and Safety Code, §247.025.