The Texas Department of Human Services (DHS) proposes the repeal of §90.324, concerning emergency medication kit; amendments to §90.3, concerning definitions; §90.42, concerning standards for facilities serving persons with mental retardation or related conditions; §90.191, concerning procedural requirements; and §90.326, required postings; and new §90.324, concerning emergency medication kit, in its Intermediate Care Facilities for Persons with Mental Retardation or Related Conditions chapter. The purpose of the amendments, repeal, and new language is as follows. Section 90.3 adds definitions for the Centers for Medicare and Medicaid Services, immediate jeopardy to health and safety, credentials for a quality of care monitor, and specialized staff. Section 90.42 removes the requirement for DHS to perform criminal history checks. Section 90.191 requires that specialized staff conduct ICF/MR survey functions. The repeal of §90.324 removes references to the Department of Pharmacy's rules on remote pharmacies for emergency medication kits. Section 90.326 requires facilities to post notices that families and staff are protected against retaliation for reporting abuse or neglect.

James R. Hine, Commissioner, has determined that for the first five-year period the proposed sections will be in effect there will be fiscal implications for state government as a result of enforcing or administering the sections. The effect on state government for the first five-year period the sections will be in effect is an estimated reduction in cost of $15,000 in fiscal year (FY) 2002; $15,000 in FY 2003; $15,000 in FY 2004; $15,000 in FY 2005; and $15,000 in FY 2006. There will be no fiscal implications for local government as a result of enforcing or administering the sections. There will be an effect on small and micro businesses as a result of enforcing or administering the sections, because providers will have to pay DPS an average of $2.25 for each criminal history check. The cost for the checks, anticipated in total as $15,000 in fiscal year (FY) 2002; $15,000 in FY 2003; $15,000 in FY 2004; $15,000 in FY 2005; and $15,000 in FY 2006, will be proportional to the number of employees a business hires. The same cost applies to persons who are required to comply with the proposed sections.

Mr. Hine also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of adoption of the proposed amendments will be that facilities will now be able to conduct criminal history checks in a more timely manner, the quality of ICF/MR inspections will be enhanced by the use of specialized staff, pharmacists will be responsible for monitoring the use and storage of the emergency medication kits, and family members will be protected from retaliation if they report abuse or violations. There will be no anticipated effect on local employment in geographic areas affected by these sections.

Questions about the content of this proposal may be directed to Rose Rossman at (512) 438-3750 in DHS's Long Term Care Policy Section. Written comments on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-098, Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register.

Under §2007.003(b) of the Texas Government Code, the department has determined that Chapter 2007 of the Government Code does not apply to these rules. Accordingly, the department is not required to complete a takings impact assessment regarding these rules.

The amendment is proposed under the Health and Safety Code, Chapter 252, Title 4, which authorizes the department to license intermediate care facilities for the mentally retarded.

The amendment implements the Health and Safety Code, §§252.001-252.186.