The Texas Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §97.2, concerning definitions; §97.3, concerning license fees; §97.15, concerning issuance of an initial license, §97.17, concerning application procedures for a renewal license; §97.19, concerning issuance of a renewal license; §97.21, concerning denial of an application or a license; §97.213, concerning agency relocation; §97.214, concerning notification procedures for a change in agency contact information and operating hours; §97.215, concerning notification procedures for an agency name change; §97.216, concerning change in agency certification status; §97.219, concerning procedures for adding or deleting a category to the license; §97.220, concerning service areas; §97.243, concerning administrative and supervisory responsibilities; §97.255, concerning prohibition of solicitation of patients; §97.259, concerning initial educational training in administration of agencies; §97.507, concerning agency cooperation with a survey; §97.521, concerning requirements for an initial survey; §97.601, concerning enforcement actions; §97.602, concerning administrative penalties; new §97.208, concerning reporting changes in application information and fees; and §97.218, concerning agency organizational changes; and the repeal of §97.218, concerning agency organizational changes, in Chapter 97, Licensing Standards for Home and Community Support Services Agencies. The amendments to §§97.21, 97.215, 97.220, 97.507, 97.521 and 97.602; new §97.208 and §97.218 are adopted with changes to the proposed text published in the April 13, 2012, issue of the Texas Register (37 TexReg 2563). The amendments to §§97.2, 97.3, 97.15, 97.17, 97.19, 97.213, 97.214, 97.216, 97.219, 97.243, 97.255, 97.259, 97.601; and repeal of §97.218 are adopted without changes to the proposed text.

The amendments, new rules, and repeal are adopted to implement portions of Senate Bill (SB) 223 and House Bill (HB) 1720, 82nd Legislature, Regular Session, 2011. SB 223 and HB 1720 amended Texas Health and Safety Code (THSC), Chapter 142. The adopted rules make a number of changes. They require a Home and Community Support Services Agency (HCSSA) to report changes in certain information provided on an initial or renewal application after the license is issued and allow DADS to assess a fee for some of the reportable changes. DADS may also assess a late fee when changes are not reported within the required time frame. The rules also specify that DADS may not renew an initial HCSSA license unless DADS conducts an initial on-site survey of a non-exempt agency and allow an administrator to use DADS HCSSA joint training addressing common violations by HCSSAs to meet the required hours of initial educational training in administration of a HCSSA. Additionally, the adoption requires a HCSSA to provide a DADS representative with a reasonable and safe workspace to conduct a survey at a HCSSA.

In §97.208(b)(2), "and supervising nurse" was deleted to reflect revised rule language in §97.218 that deletes the requirement for an agency to report a change in the supervising nurse between renewal applications.

In §97.208(b)(3), "and" was changed to "or" in (C) and (D) to clarify that a fee of $30 applies to the reporting of a change to a HCSSA's physical location, name, administrator, chief financial officer, controlling person, category of service designated on a license, service area, or any combination of those changes.

In §97.208(c), the reference to "(b)(2)" was changed to "(b)(3)" to correctly indicate the changes in application information that require a fee of $30.

In §97.208(f), the reference to "§97.3(g)" was changed to §97.3(f)" to correctly refer to the rule that lists the forms of payment DADS accepts for a required fee.

In §97.208(g), "and" was changed to "or" to clarify that an agency may submit proof that the agency reported a change or may submit proof that the agency paid the required fee; submitting proof of both may not be required.

In §97.215(b), the reference to "Form 2021" was changed to "(DADS Form 2021)" to be consistent with the reference to this form in similar rules.

In §97.218(a), changes were made to separately list the administrator and alternate administrator and to delete the supervising nurse in the list of management position changes that must be reported to DADS. Also, in §97.218(a), "and" was changed to "or" to clarify that a report is required if there is a change to any of these management positions and that a change in all of the positions need not occur for a report to be required.

In §97.218(c), "and" was changed to "or" to clarify that a report is required if there is a change to any of the organizational or management positions listed in the rule; changes need not occur in all of the positions for a report to be required.

In §97.218(d), "and supervising nurse" was deleted, consistent with the revision to §97.218(a) deleting the supervising nurse from the list of management positions changes that must be reported to DADS.

In §97.220(d)(2)(A) and (B), the reference to "subsection (f)" was changed to "subsection (e) " to correct the reference.

In §97.507(f), the rule language was revised to remove the previously listed workspace requirements that a HCSSA must provide to a surveyor to conduct a survey. The rule now requires a reasonable workspace and safe workspace free of hazards.

In §97.507(g), the rule language was revised to provide that, in the event of a dispute between a DADS surveyor and a HCSSA about the workspace conditions, DADS program manager maintains the discretion to determine what is reasonable and safe.

Section 97.521(a)(2) and (f) were amended to clarify that an agency is not required to request an initial survey if it is exempt in accordance with §97.503 and to explain the process for demonstrating exemption. Subsection (g) was added to §97.521 to clarify that a HCSSA may demonstrate that it is exempt from an initial survey by submitting written notice of accreditation from the Joint Commission on Accreditation of Healthcare Organizations or Community Health Accreditation Program, Inc., before DADS arrives at the HCSSA to conduct an initial survey.

In §97.602(h)(2), on the Severity Level A Violations table, the proposed amendment that listed §97.213(a), (b)(1) and (2), and (c), inadvertently deleted that these provisions may have "separate penalties."

DADS received written comments from the Texas Association for Home Care & Hospice; Nurses-on-the-Go Rehab; Tri-Cord Group, Special Kids Care; Southern Homecare, Inc.; KidsCare Therapy; MedCare Pediatric Group; LP and Affiliates; American Home Care; Alpha Omega Home Health Services, Inc.; In-Home Attendant Services, Ltd.; Angels At Home, Inc.; a consulting service; a HCSSA representative and one individual. A summary of the comments and the responses follows.

Comment: One commenter voiced support for all of the proposed rule changes. The comment indicated that since the alternate administrator and supervising nurse are part of the management of an agency, changes to these positions should be reported to DADS. Eleven commenters requested that DADS delete the proposed requirement in §97.218, Agency Organizational Changes, to report changes in the alternate administrator and the supervising nurse positions. The commenters do not consider an alternate administrator or supervising nurse to be management personnel with control over the HCSSA's operations or policies. The commenters believe that since the persons hired for these positions must be reported on an initial and renewal application, and because DADS evaluates the qualifications of the alternate administrator and supervising nurse on every survey, including complaint investigations, there is no reason to report changes in these positions when changes occur between license renewals. The comments indicated that the requirement to make additional reports between renewals is too costly and administratively burdensome to both DADS and HCSSAs.

Response: THSC, §142.0104, authorizes DADS to establish the changes in license application information a license holder must report to DADS if the information changes between license renewals. The requirement to report changes in the alternate administrator allows DADS to conduct a criminal history check to ensure the alternate administrator does not have a criminal conviction that bars licensure for a HCSSA. DADS did not delete the alternate administrator from §97.218 in response to this comment. DADS license application requires an applicant or license holder to list the name of the HCSSA supervising nurse, in addition to other management personnel. A HCSSA presumably designates a supervising nurse to be in charge of the clinical or nursing services of the HCSSA and to make day-to-day decisions about the provision of those services. However, DADS can evaluate a HCSSA's compliance with licensing standards relating to a supervising nurse during a survey. DADS deleted the supervising nurse from §97.218 in response to this comment.

Comment: One commenter believes that the proposed rules will make doing business more difficult while not making healthcare anymore accessible or improved. The commenter would like less intrusion into providing healthcare and the cost of doing business. The commenter suggested leaving the rules alone unless the health and well-being of United States citizens are affected. Another commenter believes the proposed rules will have an economic impact on small business and will hinder small business prosperity. The commenter asked DADS to reconsider the economic effect.

Response: The proposed rules implement the amendments to THSC Chapter 142 made by the 82nd Texas Legislature. The purpose of Chapter 142 is to ensure that home and community support services agencies (HCSSAs) deliver high quality care. DADS protects individuals receiving HCSSA services by licensing and regulating HCSSAs; monitoring factors related to the health, safety, welfare, and dignity of individuals served; and imposing prompt and effective remedies for violations of state laws and rules applicable to HCSSAs. THSC, §142.0104, Change in Application Information, authorizes DADS to charge a fee up to $50 for reporting a change in application information. DADS considered the economic impact on HCSSAs that must comply with the rules. To keep the fees reasonable, DADS is not imposing a fee for timely reporting certain changes. For other changes, DADS will impose a fee of $30 for timely reporting the changes. The $100 late fee for untimely reporting changes is intended to encourage compliance with the reporting deadlines. A HCSSA may avoid the late fee by timely complying with the deadlines established in the rules. No changes were made to the rules in response to these comments.

Comment: Ten commenters recommended that DADS delete the requirements in §97.507(f), Agency Cooperation with a Survey, requiring a HCSSA to provide a DADS surveyor with a reasonable and safe workspace to conduct a survey. The commenters stated that the rule is subjective and will allow wide differences in interpretation. The commenters believe that the rule will expose agencies to the threat of enforcement action for environmental factors outside of a HCSSA's control.

Response: The amendment to THSC, §142.009(a-1), authorizes DADS to require a HCSSA to provide a DADS representative conducting a survey "with a reasonable and safe workspace at the premises." DADS revised §97.507(f) to require a HCSSA to provide a workspace to a DADS representative that is reasonable, safe and free from hazards. To address the commenters' suggestion that there may be wide differences in interpretation of "reasonable and safe," DADS revised §97.507(g) to provide that in the event of a dispute between the DADS representative and the HCSSA, the appropriate DADS program manager or designee determines what is "reasonable and safe."

The amendments and new sections are adopted 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 the licensing and regulation of home and community support services agencies.