"The manager must be on duty 40 hours per week and may manage only one facility, except for managers of small Type A facilities, who may have responsibility for no more than 16 residents in no more than four facilities. The managers of small Type A facilities must be available by telephone or pager when conducting facility business off-site."

Comment: Under §92.41(e)(1)(A), the second sentence does not make clear that it is the resident's right to choose the provider of additional services, and that the assisted living facility should not force a resident to choose a particular provider of services. This could be particularly problematic for residents needing services under the Medicare home health, where their right to choose their provider is explicitly provided.

Response: The second sentence in §92.41(e)(1)(A) is not intended to address the resident's right to choose the provider of additional services, but to emphasize the facility's responsibility for the overall care of the resident, regardless of what entity delivers the care.

Comment: Under §92.41(e)(2), the phrase "and therapy" should be inserted after "nursing," since the Medicare home health benefit includes coverage of therapy as a skilled service.

Response: The department does not concur. The intent of this rule is to require assisted living facilities to disclose costs for services they provide, and particularly nursing services and supplies since they are a benefit under Medicare.

Comment: Under §92.41(e)(3), the reference in the second sentence to "resident care plans" is not clear as to whose plans are being discussed, the outside resource's or the assisted living facility's. Furthermore, if there is a wide variation in the ways assisted living facilities require outside resources to document services they provide, critical information may be missed.

Response: The department does not concur. The reference is clearly to the outside resources' care plans and does not need to be changed. Furthermore, the department does not wish to prescribe in what way outside resources will document their services.

Comment: Under §92.19, restore the previously agreed-to language so that the rule would read, "(1) hand-delivered notice [notice by personal service] or notice by registered mail or certified mail of the facts or conduct alleged to warrant the proposed action; and . . ."

Response: The department does not concur. This language is taken from Government Code §2001.054(c)(1), which states, "the agency gives notice by personal service or by registered or certified mail." "Hand-delivered notice" is not the same thing as personal service and cannot be substituted for it.

Comment: Regarding §92.41(a)(1)(A)(ii), assisted living is the accommodation of choice for today's seniors who do not or cannot continue to live at home. Currently, there are more licensed assisted living facilities than licensed nursing homes. The vast majority of assisted living is made up of homes with 4-8 residents. This has been made possible partly by Supreme Court rulings, and these operators find it feasible to purchase one or more dwellings in local neighborhoods and convert them or simply begin moving in elderly residents. Rules have been used to lower the normal restrictions to make it easier for this type operation to exist. It is one thing to lower a building or safety standard, but yet another to also lower the qualifications of those who operate the small homes. There is no just or valid reason why the qualifications of the manager should be lowered. The existing rule offers ample flexibility. To drop the requirement for "one year of experience working in management or in health care industry management" is indefensible. Delete the rule identified as (ii) and require every manager to meet the same qualifications.

Response: The department does not concur. Senate Bill 93 specifically draws a distinction between the minimum qualifications for the manager of a large facility, which are set by statute, and those for a manager of a small facility, which are not set by statute. The proposed rules do not lower current manager qualification; they raise the qualifications for the managers of large facilities.

Comment: Regarding §92.41(a)(1)(D), which allows managers of small Type A facilities to be responsible for no more than 16 residents in four facilities, the proposed language makes no restrictions on where the four facilities can be located. They don't have to be on the same property or even in the same neighborhood. They can be miles apart and even in different cities. This is an irresponsible proposal from a state regulatory agency. Stop the pandering to operators of small homes. It is not the responsibility of the government to make providers successful. Adopt the following: "Manager's responsibilities. A manager must be on duty 40 hours per week in every small and large facility."

Response: The department does not concur. The department recognizes that one individual may be capable of managing more than one small facility, especially when a single manager of a large facility may be responsible for 100 to 200 residents. The limits, "16 residents in four facilities," are a reasonable attempt to regulate the scope of a manager's responsibilities in small facilities. The rule was developed in a workgroup composed of providers (large and small) and advocates. The department will retain the proposed language.

Comment: Regarding §92.41(e)(1)(A), insert "Type A resident" in the last sentence of the paragraph, so the sentence will read, "Compliance with applicable life safety code requirements, for a Type A resident, is a fundamental criterion which must be met prior to the consideration of 'aging in place' or securing additional services." The current rule defines a Type B resident as one who may 1) require staff assistance to evacuate; 2) be incapable of following directions under emergency conditions; 3) require attendance during nighttime sleep hours; and 4) require assistance in transferring to and from a wheelchair. Thus, the rules acknowledge that these residents, on admission, are incapable of acting independently without assistance. The proposed language, when applied to a Type B resident, is ludicrous. What we should be talking about is the Type A resident, who by our definitions, is a resident who can evacuate on their own and accomplish most functions of daily living by themselves. When applied to the Type A resident, the proposed new language does make sense.

Response: Although the department understands the commenter's position, the rule needs to remain applicable to residents of all facilities, not only Type A facilities. However, in response to an earlier comment, the department will substitute the following for the sentence in question: "Regardless of the possibility of "aging in place" or securing additional services, the facility must meet all life safety code requirements based on each resident's evacuation capabilities."

Comment: Regarding §92.123(b)(2), the rule states that a person may not be employed if listed in the misconduct registry and says that the facility must search the registry "before" a hire is made, but yet refers to persons to be notified as "employees." Change the proposed language in (b)(2) to the following: "A facility must notify all applicants in writing at the time of the interview and consideration for employment."

Response: The department does not concur. The proposed language was designed to mirror the language of the Employee Misconduct Registry rule in 40 TAC 93, which states, "Each facility is required to provide written notification upon hiring and to all employees..." Therefore, in response to comment, the department will change the language in §92.123(b)(2) to read, "Each facility is required to provide written notification upon hiring and to all employees..."

Comment: Regarding the fees for plan review in §92.20(d)(2)(A)-(D), a percentage basis is not the best way to calculate fees for plan review of remodeling. For example, consider a $200,000 remodeling job, which is not unreasonable in these types of buildings. The provider would be charged $4,000 for the state to review plans that are no more detailed than the original plans and nearly twice the cost of the original new construction plan review. Remodeling might just include moving two walls, carpeting, wallpapering, etc., yet the cost can be pretty significant.

Response: The department concurs and will place a cap on the amount that can be charged for plan review for remodeling.

Comment: Regarding §92.41(l)(3), replace the word "variation" to "changes from the posted menus must be documented." This would make the statement less likely to be misinterpreted, such as when variations in recipes occur (e.g., banana bread instead of zucchini bread).

Response: The department believes the language is clear as written and does not require a change.

Comment: Regarding §92.2(c), retain the current language of (c)(11) in modified form, as suggested below. The term "established" is vague and begs the question by whom? The term "special" is the term used in the statute, and the additional phrase adds clarity and a means to identify precisely those residents whose special dietary needs must be met by the facility.

Response: Section 92.2(c)(11) had no changes proposed to it; therefore, the department is unable to make such a change.

Comment: In §92.3, change the definition of the term "dietitian" in subsection (7) to read as follows:

(7) Dietitian - A [dietitian qualified by;

(A) registration by the Commission on Dietetic Registration of the American Dietetic Association, or

(B)] person who currently holds a license or provisional license issued [licensure or provisional licensure] by the Texas State Board of Examiners of Dietitians [and who has 15 hours of dietetic continuing education annually].

Response: In response to comment, the department will make the suggested change.

Comment: Change the definition of the term "Service plan" in re-numbered subsection (27) to read as follows: [The commenter did not provide a definition.] The current definition of the term "service plan" is inadequate and lacking in specificity. A detailed "service plan" is the foundational document that demonstrates both that the resident's status is appropriate for residence in the facility and specific types of services the resident will require upon admission.

At minimum, the "service plan" should be similar to a "plan of care" required of other types of facilities and should be a sort of "guideline" tied to the "characteristics"of residents described in §92.2(c). For dietetic needs and services in particular, the "service plan" should contain provisions for a nutrition screening, a determination of the appropriateness of diets, and the like. For example, the resident's ability to self feed, use of dentures, or swallowing difficulties would significantly impact the resident's "service plan," both upon admission and later upon continuing assessment of the resident's needs.

Response: The department believes the current definition is appropriate and cannot respond further because the commenter did not provide a definition.

Comment: In §92.41(a)(1)(B), substitute "food and nutrition services" for "dietary services." The term "food and nutrition services" is substituted for the term "dietary services" to clarify that the scope of the standards apply not only to those services relating to the preparation of meals but also to those services relating to the assurance of nutritional adequacy and the appropriateness of the diet.

Response: In response to comment, the department will make the recommended change.

Comment: In §92.41(a)(1)(C)(iv), relating to the continuing education of managers, should be amended as suggested below. The additional phrase is added to specify that the continuing education of managers regarding residents' needs should include the fundamental area of the nutritional needs of the residents, both at admission and as changes occur and are reflected in the service plan.

"(iv) resident characteristics and needs, including residents at nutrition risk or with changes of condition in their nutritional needs as indicated by the resident's service plan;"

Response: The department does not concur. To specify one specific area of resident need would tend to exclude other equally important areas; the department will retain the language as proposed.

Comment: Add "that meet the daily nutritional and special dietary needs of each resident, in accordance with each resident's service plan;" to §94.41(a)(3)(C)(iii). The additional phrase is added to specify that a fundamental responsibility of the staff is satisfying both the daily nutritional needs of all residents and any special dietary needs of any individual residents, as is required by the statute, and that those needs are to be set forth in the resident's service plan.

Response: In response to comment, the department will make the suggested change.

Comment: Add a new subdivision (v) to §92.41(a)(4)(A), which would read "resident-appropriate daily nutritional and special dietary needs and feeding." A new standard is added to require appropriate staff training in the fundamental service of assuring that meals provide the appropriate daily nutritional needs and meet any special dietary needs, and that residents are actually fed those meals. Feeding issues include matters such as food preparation techniques, assistance with consuming meals, and swallowing issues.

Response: The department does not concur. These rules address the basic orientation training for new employees. The suggested change would be more appropriate for the training of food service personnel or for annual continuing education for attendants.

Comment: Amend §92.41(a)(4)(D)(iii), relating to in-service training of certain health professionals, as suggested below. Training in "food/drug interactions" is necessary as they are often as important as drug interactions in the frail elderly. For example, food/drug interactions can, in certain circumstances, prevent drugs from having their intended therapeutic effect, and so should be identified.

"(D) Facilities that employ licensed nurses . . . must provide annual in-service training . . . from one or more of the following areas:

(iii) geriatric pharmacology, including treatment for pain management, food/drug interactions, and sleep disorders;"

Response: In response to comment, the department will make the suggested change.

Comment: Add "and any special dietary needs" to §92.41(e). As nursing services and supplies are so fundamental to the needs of a resident that they should be emphasized in the admission agreement, so, too, are potential dietary needs of the resident. Therefore, special dietary needs should be addressed in the rule and the admission agreement.

Response: The department does not concur. This paragraph is emphasizing that a facility must disclose charges for all services, but particularly for nursing services, which could be a Medicare benefit. Adding "special dietary needs" distorts the intent of the language.

Comment: In §92.41(l), change the title of the Section from "Dietary service" to "Food and nutrition services." The current name of the section implies a focus on only meal preparation or service, without consideration of the nutritional content and appropriateness of the food, special dietary needs of individual residents and feeding issues. The proposed language implies the broader range of services required by the statute.

Response: In response to comment, the department will make the suggested change.

Comment: In §92.41(l)(1), add "The person shall have not less than eight hours of training in food safety, basic nutrition issues and the provision of therapeutic diets prior to assuming these responsibilities and thereafter four hours of in-service training annually in the same or similar subject matters." The person responsible for so fundamental a service element of an assisted living facility should be required to have at least minimal training in the area for which he or she is responsible. The current rules provide for no special training or continuing education or inservice training in these responsibilities. At least some training is clearly appropriate to assure compliance by this person with the current rules.

Response: The department does not wish to make such a substantive change to the rules without first discussing it with the assisted living workgroup. The department will consider these comments as future changes to the rules are contemplated.

Comment: Amend §92.41(l)(3) as proposed below. Nothing in the current rules provides any assurance that even the current standards governing meals will be, or have actually been, followed, particularly in view of the very minimal standards required of the person responsible for this service. Providing for approval of planned menus and review of menus actually served by a licensed dietitian on a consulting basis will provide that assurance. Such approval/review on a monthly basis should not impose a significant additional cost on the facility. The additional requirement that menus be "age-specific" to the residents is necessary because the nutritional needs of human beings varies significantly with age, and various facilities cater to various age groups, such as the young, the middle-aged and the elderly.

"(3) Menus must be planned one week in advance and must be followed. All menus must be approved and reviewed by a licensed dietitian not less frequently than monthly, or upon a change of condition in a resident's nutritional needs as indicated by the resident's service plan. Variations from the posted menus must be documented. Menus must be prepared to provide a balanced, age-specific and nutritious diet, such as that recommended by the National Food and Nutrition Board. Food must be palatable and varied . . ."

Response: The department does not wish to make such a substantive change to the rules without discussing the change with the assisted living workgroup. The department will consider these comments as future changes to the rules are contemplated.

Comment: Amend §92.41(l)(4) as suggested below. The phrase "as ordered by the resident's physician" is intended to clarify the meaning of the term "therapeutic diet" by restricting its meaning to apply only to those special diets ordered by the resident's physician. Because such dietary plans are intended to be "therapeutic," they must be periodically reviewed for appropriateness, and the goal of such a review is to liberalize and normalize such special restricted diets whenever and as soon as possible.

"(4) Therapeutic diets as ordered by the resident's physician must be provided according to the service plan. Therapeutic diets must be regularly reviewed not less than quarterly or upon a change of condition in the resident's needs and shall address the continued appropriateness of the diet in the context of a goal of liberalizing the diet. Therapeutic diets which cannot customarily be prepared by a lay person . . ."