The Texas Department of Human Services (DHS) adopts the repeal of §90.324; amendments to §90.3, §90.42, §90.191, and §90.326; and new §90.324 without changes to the proposed text published in the April 5, 2002, issue of the Texas Register (27 TexReg 2792).

Justification for the amendments, repeal, and new section is as follows. Section 90.3 added new definitions for quality-of-care monitors, specialized staff, and immediate jeopardy to health and safety. Health and Safety Code, Chapter 255, mandates the creation of offices with quality-of-care monitors for long-term care facilities. Section 255.001 defines the term quality-of-care monitors. The definition is added to the ICF/MR rules because quality-of-care monitors are used in the ICF/MR program. Section 252.040 of the Health and Safety Code requires the department to use specialized staff to conduct ICF/MR surveys. DHS uses staff with expertise in developmental disabilities as the specialized staff so this definition is added. The federal government changed the definition of immediate jeopardy to health and safety in Appendix Q of the State Operations Manual. The department added this new definition to align with the federal requirements.

Section 90.324 removed the requirement for DHS to conduct criminal history checks, which now are directly conducted by the facility in accordance with Health and Safety Code 250.002. The amendments remove DHS as a conduit between facilities and the Texas Department of Public Safety.

New §90.324 transfers the responsibility for emergency medication kits from the physician to the pharmacist to comply with §562.108 of the Occupations Code, which changed the way emergency medication kits are regulated in institutional settings. Emergency medication kits are classified as remote pharmacies licensed under the dispensing pharmacy. The Texas State Board of Pharmacy has adopted rules requiring pharmacies to obtain permits to maintain these kits in facilities, and new §90.324 was coordinated with that agency.

The department received written comments from the Private Providers Association of Texas and the Texas Council of Mental Health and Mental Retardation Centers, Inc. A summary of the comments and the department's response follow.

Comment: Both the Private Providers Association of Texas and the Texas Council of Mental Health and Mental Retardation Centers, Inc., requested that the department delete the proposed definition of quality-of-care monitors and to include this definition with rules implementing the quality-of-care monitoring in Intermediate Care Facilities for persons with Mental Retardation (ICFs/MR).

Response: The department does not agree with the comments. Texas Health and Safety Code §255.501 includes ICFs/MR. The definition of quality-of-care monitors is consistent with the language found in Chapter 255 of the Health and Safety Code (relating to Quality Assurance Early Warning System For Long-Term Care Facilities; Rapid Response Teams), which was effective June 15, 2001. While the Quality-of-Care monitoring system is not yet available in ICFs/MR, a rapid response team may need to respond in an ICF/MR if a problem is detected with the early warning system. A quality-of-care monitor is one of the members of the rapid response team. For this reason, the department retains the definition of a quality-of-care monitor in its rule language.

The amendment is adopted under the Health and Safety Code, Title 4, Chapter 252, which authorizes the department to license intermediate care facilities for persons with mental retardation or related conditions.

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