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 Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate.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 §90.3, concerning Definitions, §90.236, concerning Administrative Penalties; and §90.240, concerning Right to Correct, with changes to the proposed text published in the June 22, 2018, issue of the Texas Register (43 TexReg 4124).

BACKGROUND AND JUSTIFICATION

The rules implement Texas Health and Safety Code, §252.065, as amended by House Bill 2025, 85th Legislature, Regular Session, 2017, which requires HHSC to develop and use a system to record and track the scope and severity of licensure violations by an intermediate care facility for individuals with an intellectual disability (ICF/IID) for the purpose of assessing an administrative penalty or taking other enforcement action to deter future violations. Also in response to amendments to §252.065 by House Bill 2025, the rules describe the circumstances under which HHSC will not give an ICF/IID license holder a period of time to correct a violation before assessing an administrative penalty.

The rules also 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 Providers Alliance for Community Services of Texas, which did not oppose adoption of the rules, but suggested certain changes to them at adoption.

Comment: Regarding §90.3, concerning Definitions, the commenter requested that HHSC remove the phrase, "or in a very limited number of locations" from the proposed definition of "isolated" under §90.3(34). The commenter stated that the phrase did not make sense for ICF/IIDs because homes are individually licensed and inspected.

HHSC Response: HHSC agrees with the suggestion to omit the phrase "or in a very limited number of locations" from the definition of the term "isolated" in §90.3(34). 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."

Comment: Regarding the proposed penalty matrix in §90.236(f), the commenter suggested that the penalty amount for an ICF/IID for a violation that is considered isolated and resulted in actual harm be reduced to $250, which is the lowest penalty amount for that category of violation for an assisted living facility. The commenter requested that the penalties for ICF/IIDs be the same as the lowest penalty amount for an assisted living facility for a similar violation.

HHSC Response: HHSC declines to make the requested change. The penalty amounts for assisted living facilities and ICF/IIDs were developed under different statutory parameters for the assessment of an administrative penalty. The permissible range of administrative penalties for ICF/IIDs is $100 - $1000 per violation for an ICF/IID with a capacity of less than 60 and $100 - $5000 per violation for an ICF/IID with a capacity of 60 or more. HHSC's penalties consider and reflect the authorized ranges for each facility type.

HHSC also made changes to §90.240(b) to clarify the meaning of the subsection. HHSC changed the proposed wording, "HHSC does not allow a facility to correct a violation before assessing an administrative penalty", to "HHSC does not give a facility a period of time to correct a violation before assessing an administrative penalty" in the adopted rule. This change is to clarify that HHSC always allows and encourages a facility to correct a violation as soon as possible, but does not give the facility a period of time to correct a violation before assessing an administrative penalty under the circumstances described in the subsection. Also, an editorial change has been made in §90.236(b)(2) to remove the words "the clients", which were erroneously included in the proposed rule text.

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; and Texas Health and Safety Code, §252.008, which requires the executive commissioner to adopt rules related to the administration and implementation of Chapter 252, which provides for the licensing and regulation of ICF/IIDs.