The Texas Department of Human Services (DHS) proposes to repeal Subchapter H, consisting of §§92.151-92.158, and to amend §92.3, concerning definitions; §92.15, concerning renewal procedures and qualifications; §92.16, concerning change of ownership; §92.17, concerning criteria for denying a license or renewal of a license; §92.19, concerning informal reconsideration; §92.20, concerning license fees; §92.41, concerning standards for type A, type B, and type E assisted living facilities; §92.53, concerning standards for certified Alzheimer's assisted living facilities; §92.61, concerning introduction and application; §92.62, concerning general requirements; §92.64, concerning plans, approvals, and construction procedures; and §92.82, concerning determinations and actions pursuant to inspections in its Licensing Standards for Assisted Living Facilities chapter. DHS proposes new rules in Chapter 92 consisting of Subchapter H, Enforcement, Division 1, General Information, §92.151 and §92.152; Division 2, Actions Against a License: Suspension, §§92.201-92.220; Division 3, Actions Against a License: Revocation, §§92.251-92.267; Division 4, Actions Against a License: Temporary Restraining Orders and Injunctions, §92.301 and §92.302; Division 5, Actions Against a License: Emergency License Suspension and Closing Order, §§92.351-92.374; Division 6, Actions Against a License: Civil Penalties, §92.401 and §92.402; Division 7, Trustees: Involuntary Appointment of a Trustee, §§92.451-92.456; Division 8, Trustees: Appointment of a Trustee by Agreement, §§92.501-92.506; Division 9, Administrative Penalties, §§92.551-92.595; and Division 10, Amelioration, §§92.601-92.616. The purpose of the repeals, amendments, and new sections is to update the content of some rules in response to legislation, to improve clarity, and to state the licensing standards for assisted living facilities rules in language that is easier for the public to understand. Proposed rules address actions against a license, trustees, administrative penalties, and amelioration.

The proposal incorporates changes to the Health and Safety Code, §§247.0025, 247.041, 247.0451-247.0455 and 247.0457 as amended by Senate Bill (SB) 527, 77th Legislature. The proposed changes allow DHS to assess administrative penalties against assisted living facilities, allow assisted living facilities to ameliorate violations, and give gradations of penalties. Subchapter H has been reorganized and divisions introduced to improve usability. The new sections include enforcement regulations for assisted living facilities. Definitions added to §92.3 incorporate legislative changes and initiatives. Changes to §§92.15, 92.16, 92.17, 92.20, 92.41, 92.53, 92.61, 92.62, 92.64, and 92.82 relate to administrative penalties, technical changes, clarification, correction of references, and changes from SB527, and add requirements for training on restraints.

Bobby Halfmann, Chief Financial Officer, 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 increase in revenue of $15,835 in fiscal year (FY) 2003; $15,835 in FY 2004; $15,835 in FY 2005; $15,835 in FY 2006; and $15,835 in FY 2007. There will be no fiscal implications for local governments as a result of enforcing or administering the sections.

There will be no cost to assisted living providers (businesses) that maintain compliance with licensure requirements. The cost to persons who are assessed administrative penalties for non-compliance with these sections will be an estimated total of $15,835 in fiscal year (FY) 2003; $15,835 in FY 2004; $15,835 in FY 2005; $15,835 in FY 2006; and $15,835 in FY 2007.

Bettye M. Mitchell, Deputy Commissioner for Long Term Care, has determined that, for each year of the first five years the sections are in effect, the public benefit anticipated as a result of enforcing the sections will be that DHS will have rules in effect to implement the administrative penalties system added by the legislature and rules that the public can more easily understand. There will be an adverse economic effect on any size business, whether large, small, or micro, if an administrative penalty is assessed. There will be no economic effect on assisted living providers that maintain compliance with licensure requirements, because they will not be assessed administrative penalties. The amount of the administrative penalties will range from $100 to $1,000, depending on the penalty associated with the violation written against the facility. The penalty amounts are determined by the number of licensed beds the provider has and by the size of the business-owning entity. The establishment of administrative penalties and method of determining the penalty fee schedule were outlined in state statute. There is no anticipated effect on local employment in geographic areas affected by these sections.

Questions about the content of this proposal may be directed to Jeanoyce Wilson at (512) 438-2353 in DHS's Long Term Care Policy section. Written comments on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-068, 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, DHS has determined that Chapter 2007 of the Government Code does not apply to these rules. Accordingly, DHS is not required to complete a takings impact assessment regarding these rules.

The amendments are proposed under the Health and Safety Code, Chapter 247, which authorizes DHS to license and regulate assisted living facilities.

The amendments implement the Health and Safety Code, §§247.001-247.068.