The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §§97.1 - 97.3, 97.201, 97.213 - 97.220, 97.241, 97.242, 97.245 - 97.247, 97.249, 97.250, 97.252, 97.253, 97.257, 97.281 - 97.283, 97.285, 97.287, 97.288, 97.290, 97.291, 97.298 - 97.301, 97.321, 97.322, and 97.603; adopts new §§97.11, 97.13, 97.15, 97.17, 97.19, 97.21, 97.23, 97.25, 97.27, 97.29, 97.31, 97.210, 97.501, 97.503, 97.505, 97.507, 97.509, 97.521, 97.523, 97.525, 97.527, 97.601, 97.602, and 97.604; and adopts the repeal of §§97.11 - 97.16, 97.221, 97.501, 97.502, 97.601, 97.602, and 97.604 in Chapter 97, governing Licensing Standards for Home and Community Support Services Agencies. The amendments to §§97.2, 97.217, 97.220, 97.241, 97.250, 97.282, 97.285, 97.288, 97.291, 97.300, 97.321, and 97.322, and new §§97.11, 97.17, 97.23, 97.27, 97.29, 97.210, 97.501, 97.521, 97.523, 97.525, 97.601, and 97.602 are adopted with changes to the proposed text published in the October 14, 2005, issue of the Texas Register (30 TexReg 6609). The amendments to §§97.1, 97.3, 97.201, 97.213 - 97.216, 97.218, 97.219, 97.242, 97.245 - 97.247, 97.249, 97.252, 97.253, 97.257, 97.281, 97.283, 97.287, 97.290, 97.298, 97.299, 97.301, and 97.603; new §§97.13, 97.15, 97.19, 97.21, 97.25, 97.31, 97.503, 97.505, 97.507, 97.509, 97.527, and 97.604; and repeal of §§97.11 - 97.16, 97.221, 97.501, 97.502, 97.601, 97.602, and 97.604 are adopted without changes to the proposed text.

The amendments, new sections, and repeal are adopted so that the rules will be better organized and easier for the public and home and community support services agencies (HCSSAs) to locate and understand. The amendments correct references to other rules, update statutory citations, and update state agency names. References to the Texas Department of Human Services are amended to the Department of Aging and Disability Services to reflect the name of the state agency that has the authority to adopt rules for licensing and regulation of HCSSAs. The repeal and new sections update provisions regarding criteria and eligibility for licensing, application, license issuance, surveys, and enforcement.

The amendment to §97.2 added, deleted, and amended definitions to clarify terminology used throughout the chapter.

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

New §97.210 added the requirement for an agency to adopt and enforce a written policy identifying the HCSSA's operating hours and to post notice of contact information if the person in charge of the HCSSA is away during agency operating hours. The amendment to §97.217 requires a HCSSA 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 a HCSSA 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 HCSSA. The amendment to §97.249 requires a HCSSA 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 HCSSA, a contractor, or a volunteer. The amendment to §97.250 defines the written policy a HCSSA must adopt and enforce for a complaint investigation, including an investigation for abuse, neglect, and exploitation and requires the HCSSA to submit a written report no later than 10 days after reporting the act. The amendment to §97.253 requires a HCSSA to state whether it conducts drug testing. If the HCSSA does conduct drug testing, the HCSSA must describe the method and provide a copy of the policy to anyone who applies for services or requests a copy from the HCSSA.

The amendment to §97.287 requires a HCSSA's Quality Assessment and Performance Improvement Program to include components that measure the effectiveness and safety of all services provided by the HCSSA. The amendment to §97.290 requires a HCSSA 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 a HCSSA employee or contractor. The amendment to §97.300 clarifies the applicability of certain requirements relating to medication administration if the HCSSA staff administers medications. The amendment to §97.301 explains the requirements for a HCSSA 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 a HCSSA when conducting a survey, including an initial survey. New §97.521 requires a HCSSA to admit at least one client, with that client having been provided services in either the licensed home health and licensed-only hospice category, and initiate services within six months of receiving an initial license. A HCSSA 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.

DADS received 52 written comments from the Texas Association for Home Care and the Visiting Nurses Association. A summary of each comment and the responses follow.

Comment: Concerning §97.2(40)(A), a commenter asked why the definition for nursing as a subcategory of home health service specifies that it includes blood pressure monitoring and diabetes treatment. The commenter asked why are these specifically singled out and whether they need to be.

Response: The description of nursing as a type of home health service includes blood pressure monitoring and diabetes treatment because that is how "home health service" is defined in Health and Safety Code §142.001(13). The rule language was not changed in response to this comment.

Comment: Concerning §97.2(46), a commenter requested the definition for "inpatient unit" could be improved by stating "a facility that provides a continuum of hospice services including medical or nursing care to clients admitted into the unit and that is in compliance with:."

Concerning §97.2(46)(A), the commenter suggested that "hospice" be inserted before "inpatient."

Response: Inpatient unit is defined in Health and Safety Code, §142.001(16), and the rule language mirrors this definition. The rule language was not changed in response to this comment.

Comment: Concerning the definition of "manager" at §97.2(50), a commenter suggested that "independent" be inserted before "contractual relationship" because an employee can have a contractual relationship with a HCSSA.

Response: The agency disagrees with the comment because the suggested language would exclude a non-contracted employee from being a manager. However, the agency has changed the rule language to clarify that a manager for a HCSSA may be an employee or independent contractor.

Comment: Concerning §97.11(g), a commenter believed the language is beyond the scope of the statute, Health and Safety Code, §142.011, and does not allow for mitigating circumstances in the application review process. The commenter asks that "may" be used as the statute is intended to be permissive rather than mandatory. The commenter believes that mandatory language is beyond the statute.

Response: The agency does not agree that mandatory language is beyond its statutory authority. The statute gives the agency permission to deny a license application and this rule sets out the agency's policy decision on the denial of license applications. The agency will not, under any circumstances, grant a license to an applicant if the listed persons have a history of any of the circumstances described in §97.11(g). The rule language was not changed in response to this comment.

Comment: Concerning §97.11(g) and §97.601(c), a commenter expressed that the language as proposed that makes reference to a "controlling person" does not adequately provide guidance to the license holder as to the individuals or positions subject to a criminal background check. The commenter suggests that individuals who are subject to a criminal background check be specifically listed by position in the rule so that the applicability is clear.

Response: The agency does not agree with the comment. The term "controlling person" does not correspond directly to specific positions within the organization of a HCSSA; rather, it is defined as any person with the ability, acting alone or with others, to directly or indirectly influence, direct, or cause the direction of the management, expenditure of money, or policies of a HCSSA or other person. The agency does not wish to limit the range of persons who meet the definition of "controlling person" in §97.2(25) by adding a list of specific positions within a HCSSA. This requirement is consistent with the requirements for other provider types regulated by DADS. The rule language was not changed in response to this comment.

Comment: Concerning §97.11(g)(1)(A) and §97.601(c), a commenter felt that a list, as provided by the commenter, of convictions barring employment and that may result in denial, suspension, or revocation of the license should be expanded to include certain convictions not specifically referenced in Health and Safety Code, Chapter 250.

Response: The agency agrees with the comment and expanded the list in §97.11(g)(1)(A) to clarify the criminal acts and convictions that are bars to licensure at the time of application. The agency moved the provision regarding a criminal conviction from §97.601(c)(1)(D) to §97.241(b) to more accurately reflect that this is a standard that must be met by a HCSSA during the licensure period and expanded the list of convictions that are prohibited during the licensure period. The agency has not included the language prohibiting any conviction regarding moral turpitude provided in the commenter's list, as it has been difficult to define in practice. The agency has added a felony involving practicing any health-related profession without a required license.

Comment: Concerning §97.13(a)(1) and (2), a commenter expressed that the current availability of presurvey conference course times is limited and, therefore, the alternate administrator and alternate supervisor should not be required to attend the presurvey conference as it could significantly delay the license of a new HCSSA. It was also noted that currently seats are limited to two per HCSSA.

Response: The agency agrees that current availability of presurvey conference course times is limited and that seats are limited to two per HCSSA. However, the alternate administrator and alternate supervising nurse in a new HCSSA must meet the same criteria as the administrator and supervising nurse and this includes completing a presurvey conference. When this rule is adopted, DADS will expand presurvey conference availability to meet the needs of new HCSSAs, giving priority to a HCSSA pending initial licensure over those administrators and supervising nurses who may be attending presurvey conference as continuing education. The rule language was not changed in response to this comment.

Comment: Concerning §97.17(e)(2), a commenter suggested that the requirement remain that the application must be postmarked at least 30 days before the expiration date of the license and not received by DADS as a HCSSA cannot be responsible for the U.S. mail.

Response: The agency changed the rule as requested in response to this comment. The agency intends to continue further discussion with stakeholders to determine what should be considered a timely submission of a HCSSA's renewal application.

Comment: Concerning §97.17(e)(3), a commenter noted that originals are often printed from an electronic printer and asked if these documents need to be notarized. The commenter suggested that "original" be defined.

Response: The agency agrees that electronic reproduction of documents is more prevalent today. The agency requires notarization of a copy to ensure that the applicant attests that the copy is true and correct. Any reproduction of the original source document is considered a copy. The agency does not agree that "original" needs to be defined. No change in the rule was made in response to this comment.

Comment: Concerning §97.17(g), a commenter stated that the provision does not appear to be workable. The commenter asked if a HCSSA would have to cease operations upon expiration of the license, with no grace period, if DADS did not receive the application at least 30 days before its expiration. The commenter suggested that there should be a provision for a grace period if a HCSSA has notified DADS that it wishes to diligently pursue renewal, even if untimely, and does so.

Response: The agency does not agree with the comment and the rule language was not changed in response to this comment. A HCSSA that does not file a timely application has a 90-day grace period, as provided in §97.17(g)(2), to pay a late renewal fee with a renewal application. However, the HCSSA must cease operation on the date the license expires.

Comment: Concerning §97.17(h)(4), a commenter asked if a license holder's spouse would need a power of attorney to file the renewal form since this is described in §97.17(h)(1).

Response: The agency agrees that spouses should not be treated differently and changed §97.17(h)(1) and (4) in response to this comment. The rule will state that an individual having power of attorney from the license holder or other authority to act on behalf of the license holder may request renewal of the license and a copy of the power of attorney or other authority must be filed with DADS.

Comment: Concerning §97.19(d), a commenter believed the language is beyond the scope of the statute, Health and Safety Code, §142.011, and does not allow for mitigating circumstances in the application review process. The commenter asks that "may" be used as the statute is intended to be permissive rather than mandatory. The commenter believes that mandatory language is beyond the statute.

Response: The agency does not agree that mandatory language is beyond its statutory authority. The statute gives the agency permission to deny an application to renew a license and this rule sets out the agency's policy decision on the denial of renewal applications. The agency will not approve an application to renew a license under the circumstances described in §97.19(d). The rule language was not changed in response to this comment.

Comment: Concerning §97.23(b)(1), a commenter suggested that the sentence could be amended to add "a change" before sole proprietorship.

Response: The agency does not agree with the comment because the suggested revision does not improve the readability of the rule. No change in the rule was made in response to this comment.

Comment: Concerning §97.23(b)(2), a commenter noted that "taxpayer" is one word.

Response: The agency agrees with the comment and has made the requested change to the rule.

Comment: Concerning §97.27(a), a commenter noted that the proposed language did not accurately identify the categories of licensure to which the section applies.

Response: The agency agrees with the comment and has specified the categories of licensure intended to be covered by the section.

Comment: Concerning §97.27(g), a commenter requested that rule language reflect the Centers for Medicare and Medicaid Services' (CMS's) process for notifications of approval and denial of a branch application to a HCSSA licensed to provide licensed and certified home health services. This rule language should be the same as listed in §97.29(g) for alternate delivery sites.

Response: The agency cannot include CMS procedures in this chapter, as the agency does not have the authority to bind CMS to state licensing rules. No change has been made to §97.27(g) in response to this comment; however, the agency has made a change to §97.29(g) to delete the CMS procedures in that section.

Comment: Concerning §97.29(a)(3), a commenter requested that the agency remove language requiring a HCSSA to demonstrate methods for adequate supervision of an alternate delivery site during the application process. The commenter noted that the agency has no written standards to gauge adequate supervision and oversight and that this may lead to subjective denials.

Response: The agency agrees to delete the proposed language as requested pending further development of standards for adequate supervision and oversight of an alternate delivery site.

Comment: Concerning §97.217(b)(1), a commenter asked if a HCSSA has voluntarily suspended its normal business operations, why a voluntary suspension would not begin when the HCSSA knowingly, which the word "voluntarily" suggests, suspends those operations.

Response: The agency chose the 10-day threshold to define a voluntary suspension of operations as a method to exclude those more frequent, temporary closures that sometimes occur with smaller HCSSAs. The agency did not wish to make a rule that would be particularly burdensome for small businesses that may close for brief amounts of time. The rule language was not changed in response to this comment.

Comment: Concerning §97.217(b)(2), a commenter expressed that this subsection is not worded correctly, as the words "at least" should be replaced by the words "no later than" or similar wording.

Response: The agency agrees with the comment and has changed the rule to state that a HCSSA must notify the Home and Community Support Services Agencies Licensing Unit in writing no later than seven days after resuming operations.

Comment: Concerning §97.218(a), a commenter expressed that "immediately" does not provide a measurable time frame. Perhaps, instead of immediately, a 10-day time frame could be substituted to give a definitive deadline.

Response: The agency disagrees with this comment and the rule language was not changed in response to this comment. The intent is for a HCSSA to notify DADS in a more timely manner than within 10 days. Also, this is not new language; it exists in the current rule.

Comment: Concerning §97.218(b), a commenter requested that, prior to enforcement of this rule, DADS make its Criminal History Check Consent form accessible online.

Response: The HCSSA application packet including this form is not currently online because existing rules require that the application be requested in writing. DADS will consider making this form available online. No change in the rule was made in response to this comment.