The Texas Department of Human Services (DHS) proposes the repeal of §97.13, concerning change of ownership or services; proposes amendments to §97.1, concerning purpose; §97.2, concerning definitions; §97.3, concerning licensing fees; §97.11, concerning application and issuance of initial license; §97.12, concerning issuance and renewal of license; §97.14, concerning application and issuance of a branch office license; §97.15, concerning application and issuance of an alternate delivery site license; §97.16, concerning time periods for processing and issuing a license; §97.21, concerning licensure requirements and standards for agencies providing licensed home health, licensed and certified home health, or hospice services; §97.51, concerning survey procedures; and §97.52, concerning enforcement action; and proposes new §97.13, concerning change of ownership or services, in its Home and Community Support Services Agencies chapter. The purpose of the repeal, amendments, and new section is to implement recent legislation from the 76th Legislative Session, which amended Health and Safety Code, Chapter 142, relating to licensing and regulation of home and community support services agencies (HCSSA).

In addition, the sections concerning license application processes have been amended and the sections on change of ownership/services have been rewritten to address licensure problems that have been identified by DHS. The timelines for applying for a license have been changed to expedite the application process. The definition of change of ownership has been amended. The application procedures for change of ownership include new time periods for applying for a license and include a late fee for not complying with the time periods. The time periods for notifying DHS of specific service changes have been changed to reflect more realistic expectations. Also, a process for informal reconsideration of proposed enforcement actions has been added to the enforcement section in compliance with Government Code, §2001.054.

House Bill (HB) 2914, 76th Legislature, requires agencies to provide a written statement describing the agencies policy for drug testing of employees who have direct contact with clients to certain individuals. Senate Bill (SB) 94, 76th Legislature, requires DHS to adopt minimum standards for acceptable quality of care; adds the concept of a controlling person and adds a definition for controlling person; amends the requirements for disposal of special or medical waste; adds requirements regarding the reporting of abuse, neglect, and exploitation; and adds requirements prohibiting retaliation. HB 2037 establishes a late renewal fee for licenses that have been expired for 90 days or less. SB 1260 requires additional language relating to advance directives policy. The policy must include a clear and precise statement of any procedure the agency is unwilling to provide or withhold. This statement must be shared with clients. Failure to comply will result in an administrative penalty.

In addition, DHS has made technical changes to the sections which facilitate the transfer from the Texas Department of Health to DHS.

Eric M. Bost, commissioner, has determined that for the first five- year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections.

Mr. Bost 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 enforcing the sections will be stronger HCSSA rules, particularly the sections which require agencies to provide a written statement describing the agency's policy for drug testing of employees who have direct contact with clients to certain individuals; require agencies to dispose of special or medical waste generated in the home in the same manner as they do at the agency; require agencies to report abuse, exploitation, and neglect; prohibits retaliation against a person for filing a complaint or presenting a grievance; and require agencies to inform residents of policies regarding advance directives and establishes a $500 administrative penalty for failure to do so. Also the sections on application procedures and change of ownership have been strengthened to expedite the application process for licensing of HCSSAs. There will be some effect on large, small, or micro businesses, because HCSSAs will be required to dispose of special or medical waste generated in a client's home in the same manner as they do at the agency, as required by statute. Cost will vary depending on the current method of disposal and on the number of clients served. The rules establish a renewal fee for licenses that have been expired for 90 days or less. The fee is one and one-half times the normal renewal license fee. If an agency renews its license 90 days or less after the expiration date of the license, the agency will incur the higher fee. The rules relating to change of ownership include a $250 late fee for applications submitted postmarked 29 days or less prior to the date of the change of ownership and prior to the expiration date, unless there is a valid emergency. There is no anticipated economic cost to persons who are required to comply with the proposed sections.

Questions about the content of this proposal may be directed to Linda Kotek at (512) 438-3158 in DHS's Long Term Care Section. Written comments on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-100, 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 amendments are proposed under the Health and Safety Code, Chapter 142, which provides the department with the authority to adopt rules for the licensing and regulation of home and community support services agencies.

The amendments implement the Health and Safety Code, Chapter 142.001-142.030.