The Texas Department of Human Services (DHS) adopts the repeal of §§92.151 - 92.158; amendments to §§92.3, 92.15 - 92.17, 92.19, 92.20, 92.41, 92.53, 92.61, 92.62, 92.64, and 92.82; and new §§92.151, 92.152, 92.201 - 92.220, 92.251 - 92.267, 92.301, 92.302, 92.351 - 92.374, 92.401, 92.402, 92.451 - 92.456, 92.501 - 92.506, 92.551 - 92.595, and 92.601 - 92.616 in its Licensing Standards for Assisted Living Facilities chapter. DHS adopts amendments to §§92.41, 92.53, and 92.64 with changes to the proposed text published in the January 24, 2003, issue of the Texas Register (28 TexReg 661). DHS adopts the repeal of §§92.151 - 92.158; amendments to §§92.3, 92.15 - 92.17, 92.19, 92.20, 92.61, 92.62, and 92.82; and new §§92.151, 92.152, 92.201 - 92.220, 92.251 - 92.267, 92.301, 92.302, 92.351 - 92.374, 92.401, 92.402, 92.451 - 92.456, 92.501 - 92.506, 92.551 - 92.595, and 92.601 - 92.616 without changes to the proposed text.

Justification for the repeals, amendments, and new sections is to comply with 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 adoption allows DHS to assess administrative penalties against assisted living facilities. These rules, including the administrative penalties and fee schedule, were developed with a stakeholders' workgroup that included providers, advocates, and consumers. The rules allow assisted living facilities to ameliorate violations, and give penalty gradations. Subchapter H, Enforcement, incorporates SB 527's enforcement regulations and also has been reorganized as part of a DHS project to rewrite agency rules in a plain-language, question-and-answer format to make them easier for clients, providers, and the general public to understand. The adoption also corrects references and incorporates administrative penalties, technical changes, and clarifications.

The proposed text of §92.64 contained a publication error. As published, §92.64 omitted the first seven words that followed the section title, which read: "At the option of the applicant, the ..." This correction is included in the adoption.

DHS received written comments from Advocacy, Inc., and Atria. A summary of the comments and DHS's responses follow.

Comment: Advocacy, Inc., recommends that the language in §92.41(a)(4)(B)(vi) be inclusive.

Response: DHS will not change the language. Assisted living facilities have a diverse population. Not all facilities have a resident population that would require staff to be trained in all suggested topics. The facility may decide which topics should be addressed in staff training, based upon the facility's resident population.

Comment: Additionally, rather than mandating clock hours, the training should be competency-based (the individual must be able to demonstrate both physically and in writing what they learned).

Response: This comment addresses §92.41(a)(4)(C). DHS concurs with the recommendation. The rule language will be changed to read:

(C) Direct care staff must complete six documented hours of education annually, based on each employee's hire date. Training must address behavior management, including prevention of aggressive behavior and de-escalation techniques, or fall prevention, or alternatives to restraints; training for these subjects must be competency-based. Subject matter must address the unique needs of the facility. Suggested topics include:

(i) - (xi) (No change.)

The change will also be made to §92.53(b)(3):

(3) Direct care staff must annually complete 12 hours of in-service education regarding Alzheimer's disease. One hour of annual training must address behavior management, including prevention of aggressive behavior and de-escalation techniques, or fall prevention, or alternatives to restraints; training for these subjects must be competency-based. Subject matter must address the unique needs of the facility. Additional suggested topics include:

(A) - (I) (No change.)

Comment: The regulations need to more clearly define restraint and the difference between a personal/physical restraint (which is involuntary) and an escort or physical support (which is voluntary).

Response: DHS will not make these changes at this time. A workgroup of providers, consumers, and advocates will be convened this summer to more fully address restraints in assisted living facilities.

Comment: The training is limited to direct care staff. It is critical for purposes of supervision and training that supervisory staff--in fact, any staff having direct contact with patients--be trained in these areas.

Response: DHS will not make a change because the requirement already applies to direct care staff. "Direct care" staff includes any facility staff who has direct contact with residents.

Comment: Additionally, regulatory staff must also be trained if they are to effectively perform their function and understand what to look for.

Response: DHS will not make a change because regulatory staff is being trained. Regulations address requirements for the provider base and do not address DHS staff requirements. Policies for DHS staff are provided through handbooks and manuals.

Comment: Since restraints are used in emergency situations when behaviors must be managed externally, the regulations must define what an emergency is.

Response: DHS will not make a change at this time. This proposed definition has not been presented to the stakeholders' workgroup or to the Advisory Committee on Assisted Living Facilities. The recommendation will be placed on the agenda this summer when a workgroup is convened to address restraints.

Comment: In 40 TAC §92.3 a new definition is proposed for (14) Immediate Threat ("Immediate Threat"). However, we find the definition itself and the context in which it applies vague and ambiguous.

Response: DHS will not change the definition. The definition for "immediate threat" is taken from statute.

Comment: What is the definition of "serious injury" and who determines that a violation may cause a serious injury?

Response: DHS will not make a change at this time. The recommendation will be placed on the agenda this summer when a workgroup is convened to address restraints and other issues. The expectation of DHS is that staff will use professional judgment in determining serious injury.

Comment: Proposed 40 TAC §92.351 allows DHS to suspend or order an immediate closing of a facility if an Immediate Threat to the residents exist; therefore we are requesting clarity and a more comprehensive definition of Immediate Threat.

Response: DHS will not change the definition. The definition for "immediate threat" is taken from statute.

Comment: We are also requesting more definitive guidelines regarding the definition of Immediately Available, defined in 40 TAC §92.3(15) ("Immediately Available"). If DHS chooses not to revise the proposed rule, then we request DHS issue interpretive guidelines further addressing this standard.

Response: DHS does not concur because "immediately available" is defined at §92.3(15). Life Safety Code personnel are familiar with travel distance and measurement of normal paths of travel. These terms are used in the National Fire Protection Association (NFPA) codes and standards. Life Safety Code surveyors have been trained in the NFPA codes and how to measure these distances. No change will be made in the language.

Comment: 40 TAC §§92.551 - 92.595 address the issue of "Administrative Penalties" and while arguably well-defined, §92.557 appears to allow DHS to arbitrarily set the penalty amount. We respectfully request that DHS develop an objective schedule of Administrative Penalties and assign set fee amounts for clearly defined violations.

Response: DHS has already developed a fee schedule that was published with the proposed rules. The administrative penalty fee schedule was developed in consultation with a workgroup that included providers, advocates, and consumers.

Comment: Paragraph (5) the license holder's efforts to correct the violations and paragraph (4) deterrence of future violations in §92.557 are also vague provisions. As such, we suggest that these factors be eliminated from the proposed rule, as they appear overly subjective and unnecessary. We respectfully suggest DHS specify a time frame and the means of comparison in the final rule so that the process does not amount to a form of "double jeopardy."

Response: The criteria DHS uses to determine the amount of the administrative penalty is taken from statute; therefore, no change will be made.

Comment: The proposed §92.557 contemplates the size of the facility and the size of the business that owns the facility when determining the administrative penalty amount. This standard suggests that not all facilities will be treated equally and implies larger facilities and/or companies will be assessed penalties at higher amounts. This appears discriminatory in nature and application and therefore we urge that these factors be eliminated from the final rules.

Response: The criteria DHS uses to determine the amount of the administrative penalty is taken from statute. The size of the facility and the size of the business entity that owns the facility are criteria taken from statute. The schedule of administrative penalty fees is based on those criteria.

The amendments are adopted 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.