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 Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate.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 adopts amendments to §92.2, concerning Definitions; and §92.551, concerning Administrative Penalties; and new §92.43, concerning Policy for Residents with Alzheimer's Disease or a Related Disorder, with changes to the proposed text published in the June 22, 2018, issue of the Texas Register (43 TexReg 4135).

BACKGROUND AND JUSTIFICATION

The rules implement Texas Health and Safety Code, §247.0451, §247.0452, and Chapter 326, as amended or added by House Bill 2025, 85th Legislature, Regular Session, 2017.

The rules adopt a system to record and track the scope and severity of licensure violations by an assisted living facility for the purpose of assessing an administrative penalty or taking other enforcement action to deter future violations.

The rules also describe the circumstances under which HHSC does not allow an assisted living facility to avoid a penalty assessment based on its correction of a violation.

In addition, the rules require an assisted living facility to adopt, implement, and enforce a written policy that requires a facility employee who provides direct care to a resident with Alzheimer's disease or a related disorder to successfully complete specified training in providing care to such residents, and ensures the care and services that a facility employee provides to a resident with Alzheimer's disease or a related disorder meets the specific identified needs of the resident relating to the diagnosis of Alzheimer's disease or a related disorder.

In addition to the new rule and amendments to implement legislation, the rules use "HHSC," rather than "DADS," to reflect that DADS was abolished on September 1, 2017, and its functions were transferred to HHSC.

COMMENTS

The 30-day comment period ended July 22, 2018.

During this period, HHSC received comments from the Texas Assisted Living Association and the Office of the State Long-Term Care Ombudsman. None of the commenters opposed adoption of the rules, but each suggested certain changes to them at adoption.

Comment: One commenter stated that it considered the term "occasionally" in the proposed definition of "isolated" in §92.2(36), to be vague and subjective. The commenter recommended that HHSC remove the words "only occasionally" from its adopted definition of "isolated."

HHSC Response: HHSC declines to make the suggested change to the adopted definition of the term "isolated." The phrase continues to be used in the Centers for Medicare & Medicaid Services Severity and Scope Guide referenced as a Survey Resource in its Long Term Care Survey Process Procedure Guide, effective August 5, 2018.

Comment: One commenter stated that the use of the phrase "throughout the services provided by the facility" in the proposed definitions of both "pattern of violation" and "widespread in scope" in §92.2, concerning Definitions, creates a similarity in the definitions that is confusing and makes the distinction between the terms unclear. The commenter suggested that HHSC revise the definition of the term "pattern of violation."

HHSC Response: HHSC declines to make the suggested changes in its adopted definition of the term "pattern of violation." The definition was taken directly from HB 2025 bill language. The commenter's proposed replacement language does not fully encompass the statutory meaning. It therefore changes and, to that extent, is inconsistent with, the substance of the statutory definition. HHSC does not have the authority to adopt a rule definition that is not consistent with the statutory definition.

Comment: One commenter recommended the deletion of the words "at least" from proposed §92.43(a)(1). The commenter stated that Chapter 92 regulations pertaining to assisted living facilities are minimum standards, so that the term "at least" is implied.

HHSC Response: HHSC agrees that the term "at least" can be omitted. The requirement that employee training in the provision of care to residents with Alzheimer's disease and related disorders "include" the enumerated training components is already non-limiting based on the use of the term "include." HHSC has therefore removed the term "at least" from §92.43, as adopted. As a result of other changes made to §92.43, as proposed, the modified language is in §92.43(b) of the adopted rule.

Comment: One commenter stated that the term "behavior management" in proposed §92.43(a)(1)(C), related to the new policy adoption and implementation requirements for employee training in the provision of care to residents with Alzheimer's disease and related disorders, is "outdated language that is vague without further description, and implies that behavior is negative." The commenter suggested that HHSC replace the term "behavior management" in the rule as proposed with "person-centered behavioral interventions" in the rule as adopted.

HHSC Response: HHSC agrees to make the change to the proposed rule language for §92.43. HHSC has replaced the term "behavior management" in the proposed rule language with "person-centered behavioral interventions" in the adopted rule. As a result of other changes made to §92.43, as proposed, the modified language is in §92.43(b)(3) of the adopted rule.

In addition to the changes made in response to public comments concerning the rules proposed for Chapter 92, concerning Licensing Standards for Assisted Living Facilities, HHSC made certain changes to proposed wording at adoption, either for clarification or for consistency with changes to proposed wording made at adoption in other chapters in response to comments, when the same or similar rationale applied.

More specifically, regarding §92.2, concerning Definitions, HHSC omitted the phrase "or in a very limited number of locations" from the adopted rule definition of the term "isolated" in §92.2(36). Omitting the reference to "locations" avoids potential misclassification of a violation as isolated when the violation occurs in a limited area but otherwise meets the definition of a "pattern of conduct" or "widespread in scope."

Regarding §92.43, which requires a facility to adopt, implement, and enforce a written policy related to employee training in the provision of care to residents with Alzheimer's disease and related disorders, HHSC made changes to improve clarity and to replace outdated language with language that is better focused on the individuals served by the assisted living facilities.

More specifically, HHSC separated required training components into a separate subsection by moving those subparagraphs under proposed rule §92.43(a)(1)(A) through (D) to a new subsection (b) in adopted §92.43. Within subsection (b), HHSC clarified that the required training must include "information about" the training components moved to new subsection (b); and that the "communication" component refers to "communication with an individual with Alzheimer's disease or a related disorder."

In §92.551(g)(2), HHSC modified the language of that paragraph from the proposed language, "HHSC does not allow a license holder to correct a violation" to "HHSC does not allow a license holder to avoid a penalty assessment based on its correction of a violation" in the adopted rule. This change is to clarify that HHSC always expects a facility to correct a violation, but the license holder will not avoid a penalty assessment based on its correction of the violation under the circumstances described in §92.551(g)(2).

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 system; Texas Health and Safety Code, §247.025, which requires the executive commissioner to adopt rules necessary to implement and enforce Chapter 247; and Texas Health and Safety Code, §326.004, which requires the executive commissioner to administer and implement Chapter 326.