The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §97.2, concerning definitions; §97.11, concerning criteria and eligibility for licensing; §97.19, concerning issuance of a renewal license; §97.241, concerning management; and §97.283, concerning advance directives; and new §97.223, concerning offenses barring agency licensure, in Chapter 97, Licensing Standards for Home and Community Support Services Agencies.

Background and Purpose

The purpose of the amendments to §§97.2, 97.11, 97.19, and 97.241, and new §97.223 is to clarify DADS' authority to consider mitigating circumstances in determining whether a conviction will be a bar to a home and community support services agency (agency) licensure or participation in agency management. The amendments will eliminate some of the offenses that are bars to agency licensure in current rule language.

The purpose of the amendment to §97.283 is to restore text to subsection (a) that was inadvertently deleted during the recent adoption of an amendment to the section.

Section-by-Section Summary

The amendment to §97.2 adds a definition for "advisory committee" to help clarify the term as used in §97.242, concerning organizational structure and lines of authority. The amendment also adds a definition for "conviction" to clarify what constitutes a conviction for purposes of this chapter and corrects a cross-reference in the definition for "supervising nurse."

The amendment to §97.11 updates the rule to include criteria that DADS may use for denying an initial agency license. The amendment also removes the list of relevant crimes from §97.11 and adds a reference to new §97.223, which specifically defines the convictions.

The amendment to §97.19 updates the rule to include circumstances that DADS may use for denying the renewal of an agency license.

New §97.223 adds a list of misdemeanor or felony convictions that may constitute a bar to agency licensure or participation in agency management. The new section also includes the criteria that DADS will consider for determining a bar to agency licensure or participation in agency management.

The amendment to §97.241 removes the list of relevant crimes and adds a reference to new §97.223, which specifically defines the convictions.

The amendment to §97.283 adds specific provisions that an agency must follow in accordance with the Advance Directives Act, Health and Safety Code, Chapter 166.

Fiscal Note

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendments and new section are in effect, enforcing or administering the amendments and new section does not have foreseeable implications relating to costs or revenues of state or local governments.

Small Business and Micro-business Impact Analysis

DADS has determined that there is no adverse economic effect on small businesses or micro-businesses or on businesses of any size as a result of enforcing or administering the amendments and new section, because the rules are being updated to reflect a more narrowly and specifically defined list of criminal convictions that can result in denial of agency licensure or participation in agency management. The proposal does not add new requirements that will have an adverse economic effect on an agency.

Public Benefit and Costs

Veronda Durden, DADS Assistant Commissioner for Regulatory Services, has determined that, for each year of the first five years the amendments and new section are in effect, the public benefit expected as a result of enforcing the amendments and new section is that the rules will have a list of convictions that are potential bars to agency licensure or participation in agency management that relate more directly to owning and operating an agency or being an administrator of an agency. The public will benefit from the amendment to §97.283 by having the provisions from Health and Safety Code §166.004 that an agency must follow set out in the Texas Administrative Code.

Ms. Durden anticipates that there will not be an economic cost to persons who are required to comply with the amendments and new section. The amendments and new section will not affect a local economy.

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-058, 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.

Statutory Authority

The amendment is 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 the Aging and Disability Services Council with the authority to make recommendations regarding rules governing licensing and regulation of home and community support services agencies.

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