The Texas Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), new §92.21, in Subchapter B, Application Procedures; an amendment to §92.64, in Subchapter D, Facility Construction; and an amendment to §92.551, in Subchapter H, Enforcement in Chapter 92, Licensing Standards for Assisted Living Facilities.

BACKGROUND AND PURPOSE

The proposed amendments and new section implement Texas Health and Safety Code §247.022, as amended by House Bill 1769, 84th Legislature, 2015. Section 247.022(d) allows an assisted living facility license applicant in "good standing" to request that DADS issue an initial license that does not require an on-site health inspection. Section 247.022(d) also prohibits DADS from requiring an applicant in good standing that requests an initial license to admit a resident to the facility before DADS issues an initial license. The criteria for being in "good standing" are listed in §247.022(f). Section 247.022 requires a license applicant in good standing to submit for DADS approval the applicant's policies and procedures, verification of employee background checks, and employee credentials before DADS issues an initial license. Section 247.022 requires a facility granted an initial license in accordance with §247.022(d) to disclose to residents and prospective residents that the facility has not yet met the requirements of an on-site health inspection. Section 247.022 requires DADS to conduct an on-site health inspection within 90 days after DADS issues an initial license. The proposed new section and amendments set forth the requirements for an applicant in good standing to obtain an initial license, allow a facility to admit more than three residents after it receives an initial license, and allow DADS to impose an administrative penalty if a facility does not disclose to residents and prospective residents that it has not met the requirements of an on-site health inspection.

SECTION-BY-SECTION SUMMARY

Proposed new §92.21 allows an applicant for an initial license for a Type A or Type B assisted living facility to request DADS to issue the license before conducting an on-site health inspection. The proposed new section states that if DADS determines the applicant is in good standing, the applicant is not required to admit a resident to the facility or have an on-site health inspection before DADS issues the initial license. The proposed new section sets forth the criteria for an applicant to be in good standing and requires an applicant to submit information to DADS for approval before a license is issued. If DADS issues a license under the proposed new section, DADS conducts an on-site health inspection within 90 days after issuing the license. Until a facility that is issued a license under the proposed new section meets the requirements of an on-site health inspection, the facility must disclose, in writing, to residents and prospective residents that the facility has not yet met the requirements of an on-site health inspection.

The proposed amendment to §92.64(4)(B) clarifies that a facility may admit more than three residents after it meets the requirements of a Life Safety Code inspection and DADS issues a license under proposed new §92.21.

The proposed amendment to §92.551(d) allows DADS to impose an administrative penalty of $500-$800 if a facility does not disclose that the facility has not yet met the requirements of an on-site health inspection in accordance with proposed new §92.21.

FISCAL NOTE

David Cook, DADS Chief Financial Officer, has determined that, for each year of 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 the proposed amendments and new section will not have an adverse economic effect on small businesses or micro-businesses because the amendments and new section, which allow DADS to issue an initial license more quickly to an applicant with a history of compliance with assisted living rules, do not impose any new obligations on small businesses or micro-businesses.

PUBLIC BENEFIT AND COSTS

Mary T. Henderson, 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 will benefit by assisted living facilities being licensed more quickly if they are associated with a person who has previous experience with an assisted living facility and has complied with assisted living facility rules. This will provide more options for persons seeking services from an assisted living facility.

Ms. Henderson 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 Lorraine Brady at (512) 438-2235 in DADS Regulatory Services. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-15R09, 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 15R09" in the subject line.

STATUTORY AUTHORITY

The new section 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 §247.025 which provides that the HHSC executive commissioner shall adopt rules necessary for licensing assisted living facilities.

The new section implements Texas Government Code, §531.0055, Texas Human Resources Code, §161.021, and Texas Health and Safety Code §247.025.