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, §97.21, concerning denial of an application for a license, §97.241, concerning management, §97.244, concerning administrator qualifications and conditions and supervising nurse qualifications; and the repeal of §97.223, concerning offenses barring agency licensure, in Chapter 97, Licensing Standards for Home and Community Support Services Agencies.

BACKGROUND AND PURPOSE

HHSC, on behalf of DADS, is proposing new rules in Chapter 99 that govern criminal convictions barring licensure for nursing facilities, assisted living facilities, adult day care facilities, intermediate care facilities for persons with mental retardation and home and community support services agencies (HCSSAs), elsewhere in this issue of the Texas Register. As part of the proposal for the Chapter 99 rules, DADS proposes to amend the licensing rules for HCSSAs to reference new Chapter 99 and to repeal a section in the HCSSA rules governing criminal offenses that may constitute a bar to licensure, because those offenses are listed in Chapter 99.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §97.2 adds a definition for "chief financial officer" and "person with a disclosable interest" as used in the proposed amendment to §97.11. The section is also renumbered.

The proposed amendment to §97.11 updates the section to include a list of persons whose background DADS considers before issuing an initial or renewal license to operate a HCSSA or participate in management of a HCSSA. The amendment also adds a cross reference to new Chapter 99.

The proposed amendment to §97.21 updates cross references to other sections within the chapter.

The proposed repeal of §97.223 deletes the list of misdemeanor and felony convictions that may bar licensure of a HCSSA or participation in agency management. Chapter 99 rules, proposed in this issue of the Texas Register, governing criminal convictions barring facility licensure apply to all facility types, including HCSSAs.

The proposed amendment to §97.241 adds a cross reference to §97.11 and to new Chapter 99, which replace deleted rule language.

The proposed amendment to §97.244 adds a cross reference to proposed new Chapter 99.

FISCAL NOTE

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendments and repeal are in effect, enforcing or administering the amendments and repeal 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 the proposed amendments and repeal will not have an adverse economic effect on small businesses or micro-businesses, because they will not change current requirements for record keeping or reporting, application procedures, or other internal procedures. The amendments do not require HCSSAs to hire additional employees or to pay new fees.

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 repeal are in effect, the public benefit expected as a result of enforcing the amendments and repeal is DADS will have clearer rules that are consistent across licensure types.

Ms. Durden anticipates that there will not be an economic cost to persons who are required to comply with the amendments and repeal. The amendments and repeal 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 Sylvia Trevino at (361) 878-3419 in DADS' Regulatory Services division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-007, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, Texas 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 007" in the subject line.

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; and 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 authorizes DADS to license and regulate home and community support services agencies.

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