The Texas Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §97.2, Definitions; §97.29, Application and Issuance of an Alternate Delivery Site License; §97.201, Applicability; §97.244, Administrator Qualifications and Conditions and Supervising Nurse Qualifications; §97.248, Volunteers; §97.257, Medicare Certification Optional; §97.288, Coordination of Services; §97.322, Standards for Alternate Delivery Sites; and §97.602, Administrative Penalties; new §§97.801, 97.810 - 97.813, 97.820 - 97.823, 97.830 - 97.834, 97.840 - 97.846, 97.850 - 97.861, 97.870, 97.871, and 97.880 in new Subchapter H, concerning Standards Specific to Agencies Licensed to Provide Hospice Services; and the repeal of §97.403, Standards Specific to Agencies Licensed to Provide Hospice Services, in Chapter 97, Licensing Standards for Home and Community Support Services Agencies.

BACKGROUND AND PURPOSE

The Department of Aging and Disability Services (DADS) initiated this project in response to the Centers for Medicare and Medicaid Services' (CMS) revised hospice conditions of participation (CoPs) at 42 Code of Federal Regulations (CFR), Part 418, effective December 2, 2008. DADS also included amendments to recognize a boarding home facility as an independent living environment where a client may reside and receive HCSSA services.

The rule proposal includes repealing §97.403, Standards Specific to Agencies Licensed to Provide Hospice Services, from Chapter 97, Subchapter D, and replacing it with a new Subchapter H to better organize the information in the proposed new rule sections. The rule sections in new Subchapter H are based on the federal hospice CoPs and on Texas state laws regulating services provided by hospice licensed staff and hospice aides.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §97.2 adds and updates hospice-related definitions; adds "boarding home facility" to the definitions; clarifies definitions related to a hospice inpatient unit; and clarifies the definition for "physician."

The proposed amendment to §97.29 updates and clarifies procedures related to a hospice applying for an alternate delivery site license and for DADS to process the application and conduct surveys for a hospice inpatient unit.

The proposed amendment to §97.201 adds a reference to applicable hospice standards in new Subchapter H.

The proposed amendment to §97.244 adds qualifications for a hospice administrator based on the hospice CoPs and updates a reference to 40 TAC Chapter 99, Denial or Refusal of License.

The proposed amendment to §97.248 updates rules for volunteers, including a reference to a hospice CoP, and deletes federal requirements that apply only to a Medicare-certified hospice agency.

The proposed amendment to §97.257 adds new subsection (b) regarding CMS' approval of a hospice agency.

The proposed amendment to §97.288 clarifies procedures for coordination of care and adds "boarding home facility" as a place where a client resides.

The proposed amendment to §97.322 updates and adds references to applicable state and federal hospice requirements, deletes rules duplicated elsewhere in the chapter, and reformats the rule.

The proposed repeal of §97.403 removes the rule to allow reorganization of the standards specific to HCSSAs licensed to provide hospice services in new Subchapter H. The new rules in Subchapter H are primarily based on the revised hospice CoPs at 42 CFR Part 418.

The proposed amendment to §97.602 updates rule cites listed on the administrative penalty tables based on the rule amendments, repeal, and new rules in this proposal and adds rules cites based on other proposed amendments to §97.220, Service Areas.

Proposed new §97.801 establishes the applicability of the rules in Subchapter H and defines certain terms in the subchapter.

Proposed new §97.810 establishes standards for a hospice initial assessment.

Proposed new §97.811 establishes standards for a hospice comprehensive assessment.

Proposed new §97.812 establishes standards for a hospice to update a comprehensive assessment.

Proposed new §97.813 requires a hospice to include data elements in its comprehensive assessment.

Proposed new §97.820 establishes standards for a hospice interdisciplinary team.

Proposed new §97.821 establishes standards for a hospice plan of care.

Proposed new §97.822 establishes standards for a hospice to review and revise a plan of care.

Proposed new §97.823 establishes additional standards for a hospice to coordinate care.

Proposed new §97.830 establishes standards for hospice core services.

Proposed new §97.831 establishes standards for hospice physician services.

Proposed new §97.832 establishes standards for hospice nursing services.

Proposed new §97.833 establishes standards for hospice medical social services.

Proposed new §97.834 establishes standards for hospice counseling services.

Proposed new §97.840 establishes the standards for providing hospice non-core services.

Proposed new §97.841 establishes standards for physical therapy (PT), occupational therapy (OT), and speech-language pathology (SLP) services.

Proposed new §97.842 establishes standards for hospice aide services.

Proposed new §97.843 establishes qualifications for a hospice aide.

Proposed new §97.844 establishes standards for hospice homemaker services.

Proposed new §97.845 establishes qualifications for a hospice homemaker.

Proposed new §97.846 establishes hospice standards for a client also receiving services under a Medicaid personal care benefit.

Proposed new §97.850 establishes standards for a hospice to organize, manage, and administer its hospice program.

Proposed new §97.851 establishes standards for a person licensed to provide skilled nursing, PT, OT, SLP and medical social services.

Proposed new §97.852 establishes standards for a hospice governing body and administrator.

Proposed new §97.853 establishes standards for a hospice infection control program.

Proposed new §97.854 establishes standards for a hospice that contracts for services.

Proposed new §97.855 establishes standards for a hospice to conduct criminal background checks.

Proposed new §97.856 establishes standards for a hospice that operates one or more alternate delivery sites.

Proposed new §97.857 establishes standards for the orientation and training of hospice staff.

Proposed new §97.858 establishes standards for a hospice medical director.

Proposed new §97.859 establishes standards for a hospice to discharge or transfer a client.

Proposed new §97.860 establishes standards for providing drugs and biologicals, medical supplies and appliances, and durable medical equipment.

Proposed new §97.861 establishes standards for a hospice to make inpatient care available.

Proposed new §97.870 establishes standards for nurse staffing and nurse call systems.

Proposed new §97.871 establishes physical environment standards, including Life Safety Code and emergency preparedness, in an inpatient unit.

Proposed new §97.880 establishes standards for a hospice to provide services to a client residing in a skilled nursing facility, nursing facility, or intermediate care facility for individuals with an intellectual disability or related conditions.

FISCAL NOTE

James Jenkins, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendments, new sections, and repeal are in effect, enforcing or administering the amendments, new sections, 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, new sections, and repeal will not have an adverse economic effect on small businesses or micro-businesses because the rules do not require an agency to hire new staff, purchase equipment, or incur any additional costs.

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, new sections, and repeal are in effect, the public benefit expected as a result of enforcing the amendments, new sections, and repeal is having updated licensing standards for hospice agencies that are similar to the revised federal hospice CoPs.

Ms. Durden anticipates that there will not be an economic cost to persons who are required to comply with the amendments, new sections, and repeal. The amendments, new sections, 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 Rosalind Nelson-Gamblin at (512) 438-4962 in DADS Regulatory Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-9R005, 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: (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 9R005" 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; 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, §142.0011, which requires the adoption of rules related to the 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, §142.0011.