The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §§97.1 - 97.3, concerning general provisions, §97.201, concerning applicability, §§97.213 - 97.220, concerning conditions of a license, §§97.241, 97.242, 97.245 - 97.247, 97.249, 97.250, 97.252, 97.253, and 97.257, concerning agency administration, §§97.281 - 97.283, 97.285, 97.287, 97.288, 97.290, 97.291, and 97.298 - 97.301, concerning provision and coordination of treatment and services, §97.321 and §97.322, concerning branch offices and alternate delivery sites, and §97.603, concerning court action; the repeal of §§97.11 - 97.16, concerning application and issuance of a license, §97.221, concerning changing ownership, §97.501 and §97.502 concerning surveys, and §§97.601, 97.602, and 97.604, concerning enforcement; and new §§97.11, 97.13, 97.15, 97.17, 97.19, 97.21, 97.23, 97.25, 97.27, 97.29, and 97.31, concerning criteria and eligibility, application procedures, and issuance of a license, §97.210, concerning agency operating hours, §§97.501, 97.503, 97.505, 97.507, 97.509, 97.521, 97.523, 97.525, and 97.527, concerning licensure surveys, and §§97.601, 97.602, and 97.604, concerning enforcement, in Chapter 97, Licensing Standards for Home and Community Support Services Agencies.

Background and Purpose

The purpose of the amendments, new sections, and repeal is to reorganize the rules in Chapter 97 and to rewrite them in plain English that will be easier for the public and home and community support services agencies (agencies) to locate and understand. The amendments correct references to other rules, update statutory citations, and update agency names. References to the Texas Department of Human Services are being amended to the Department of Aging and Disability Services to reflect the name of the agency that has the authority to adopt rules for licensing and regulation of agencies. The repeal and new sections update provisions regarding criteria and eligibility for licensing, application, license issuance, surveys, and enforcement.

Section-by-Section Summary

The amendment to §97.2 adds, deletes, and amends definitions to clarify terminology used throughout the chapter.

New Subchapter B is reorganized to better explain criteria and eligibility for licensing, application procedures, and issuance of a license.

New §97.210 adds the requirement for an agency to adopt and enforce a written policy identifying the agency's operating hours and to post notice of contact information if the person in charge of the agency is away during agency operating hours. The amendment to §97.217 requires an agency to notify DADS of a voluntary suspension of operations and the resumption of operations. The repeal of §97.221 deletes duplicate information that is included in new §97.25 concerning application procedures and requirements for a change of ownership.

The amendment to §97.241 requires that the license holder maintain accurate documentation and comply with enforcement orders. The amendment to §97.246 requires an agency to conduct a criminal history check, an employee misconduct registry check, and a nurse aide registry check on each unlicensed person having face-to-face contact with clients who is employed by or volunteers for the agency. The amendment to §97.249 requires an agency to notify DADS and appropriate enforcement agencies immediately if there is cause to believe that a client has been abused, neglected, or exploited by an individual directly employed by the agency, a contractor, or a volunteer. The amendment to §97.250 defines the written policy an agency must adopt and enforce for a complaint investigation, including an investigation for abuse, neglect, and exploitation and requires the agency to submit a written report no later than 10 days after reporting the act. The amendment to §97.253 requires an agency to state whether it conducts drug testing. If the agency does conduct drug testing, the agency must describe the method and provide a copy of the policy to anyone who applies for services or requests a copy from the agency.

The amendment to §97.287 requires an agency's Quality Assessment and Performance Improvement Program to include components that measure the effectiveness and safety of all services provided by the agency. The amendment to §97.290 requires an agency to obtain and keep in the client's file a written agreement for backup services if the backup service provider is an individual other than an agency employee or contractor. The amendment to §97.300 clarifies the applicability of certain requirements relating to medication administration if the agency staff administers medications. The amendment to §97.301 explains the requirements for an agency if it is using a physician's stamped signature for a signed paper record.

New §97.505 states that DADS will not announce or give prior notice to an agency when conducting a survey, including an initial survey. New §97.521 requires an agency to admit at least one client and initiate services within six months of receiving an initial license. An agency must also submit a written request for an initial survey at least six months before the expiration date of the initial license.

New §97.602 includes updated administrative penalty charts in subsection (e)(1) and (2) to allow DADS to add certain violations in areas that jeopardize the health and safety of clients.

Fiscal Note

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendments, new sections, and repeal are in effect, there are foreseeable implications relating to costs or revenues of state government. There are no foreseeable implications relating to costs or revenues of local governments.

The effect on state government for the first five years the proposed amendments, new sections, and repeal are in effect is an estimated increase in revenue due to the revision of the administrative penalty charts of §97.602. Exact revenue increases are indeterminable based on the graduated nature of the penalties and the potential for an agency to reduce assessed penalties if corrective measures and time frames are met.

Small Business and Micro-business Impact Analysis

DADS has determined that there may be an adverse economic effect on small businesses or micro-businesses as a result of enforcing or administering the amendments, new sections, and repeal. The proposed new §97.246 requires a criminal history check for a volunteer who has face-to-face contact with a client; therefore, the proposed rule may increase the number of persons an agency must check. The agencies that provide hospice services would face the greatest impact because they use a larger volunteer workforce. DADS estimates the cost for a criminal history check is $5 - $30 per volunteer. The range is based on variable fees charged by businesses that offer these services and economies of scale related to business size. The cost of compliance by small and micro-businesses is not significantly different to the cost of compliance by the largest businesses.

There may be an adverse economic effect on small businesses or micro-businesses as a result of the proposed amendment to §97.602 due to additional administrative penalties that may be imposed under this section against an agency that does not comply with the rules. For most violations the rule provides a range of amounts that may be assessed as an administrative penalty. Therefore, the size of a business may be taken into account in assessing an administrative penalty. In addition, due to the indeterminable nature of these penalties, as explained in the fiscal note, a cost comparison is not feasible.

Cost to Persons and Effect on Local Economies

DADS anticipates that there may be an economic cost to persons who are required to comply with the amendments, new sections, and repeal. If an agency employs a volunteer who has face-to-face contact with a client, the agency will incur costs associated with obtaining a criminal history check on the volunteer, as required by the proposed new §97.246. There will also be a cost to an agency that violates a rule and is assessed an administrative penalty.

The amendments, new sections, and repeal will not affect a local economy.

Public Benefit

Veronda Durden, DADS Assistant Commissioner for Regulatory Services, has determined that, for each year of the first five years the amendments, new sections, and repeal are in effect, the public benefit expected as a result of enforcing the amendments, new sections, and repeal is promulgation of rules that reflect current agency names and DADS procedures for licensing an agency. The rules will strengthen the licensure process and clarify licensure issues that have been identified by DADS and agencies. Having the rules in plain English will make the requirements easier for the public and agencies to understand.

Takings Impact Assessment

DADS has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

Public Comment

Questions about the content of this proposal may be directed to Rosalind Nelson-Gamblin at (512) 438-3158 in DADS' Regulatory Services Policy Development and Support Unit. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-022, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register.

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Health and Safety Code, Chapter 142, which provides DADS with the authority to adopt rules for licensing and regulation of home and community support services agencies.

The amendments implement Texas Government Code, §531.0055, Texas Human Resources Code, §161.021, and Texas Health and Safety Code, §§142.001 - 142.030.