The Texas Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), new §92.22 and amendments to §92.51 and §92.551, in Chapter 92, Licensing Standards for Assisted Living Facilities.

BACKGROUND AND PURPOSE

The purpose of the proposal is to set forth requirements for an applicant for an initial assisted living facility (facility) license to obtain Alzheimer's certification for the facility or a distinct unit of the facility. The proposal allows an applicant in good standing to request that DADS issue Alzheimer's certification for the facility or unit before DADS conducts an on-site health inspection. The proposal sets forth the criteria for good standing. The proposal requires an applicant, or a controlling person of the applicant, to have operated a certified facility or a facility with a certified unit in Texas for six consecutive years preceding the request for certification. In addition, each licensed facility operated by the applicant or controlling person must not have a history of certain licensure violations or sanctions imposed as specified in the proposal. Before issuing certification, the applicant must submit for approval policies and procedures, verification of employee background checks, and employee credentials. DADS will conduct a health inspection that includes observation of resident care not later than 90 days after the date DADS certifies the facility or unit. The proposal allows DADS to impose an administrative penalty if a facility fails to disclose to residents and prospective residents that it has not met the requirements of an on-site health inspection. The proposal also clarifies the process for a license holder of a Type B facility to obtain Alzheimer's certification for the facility or a unit of the facility.

SECTION-BY-SECTION SUMMARY

The proposed new §92.22 allows an applicant for an initial license for a Type B facility to request that DADS issue an Alzheimer's certification for the facility or a distinct unit of the facility before DADS conducts an on-site health inspection. The proposed new section allows DADS to determine if an applicant is in good standing to obtain the certification. If DADS determines the applicant is in good standing, the applicant is not required to admit a resident to the facility or unit, or have an on-site health inspection before DADS issues the certification. The proposed new section also sets forth the criteria for good standing and requires an applicant to submit information to DADS for approval before Alzheimer's certification is issued. If DADS issues Alzheimer's certification under the proposed new section, DADS conducts an on-site health inspection within 90 days after issuing the certification. Until a facility or unit that is issued Alzheimer's certification meets the requirements of an on-site health inspection, the facility must disclose, in writing, to residents and prospective residents that the facility or unit has not yet met the requirements of an on-site health inspection.

The proposed amendment to §92.51 clarifies the process for a license holder of a Type B facility to obtain Alzheimer's certification, and makes editorial changes for clarity and consistency. The amendments clarify that a facility or a unit of a facility must meet the requirements of a Life Safety Code (LSC) inspection within 120 days after DADS conducts an initial LSC inspection, and that the facility or unit must meet the requirements of an on-site health inspection during which DADS must observe the facility's or unit's provision of care to at least one resident who has been admitted to the facility or unit.

The proposed amendment to §92.551 allows DADS to impose an administrative penalty of $500 - $800 if a facility or unit that has obtained Alzheimer's certification before having an on-site health inspection does not disclose that the facility or unit has not yet met the requirements of such an inspection.

FISCAL NOTE

David Cook, Deputy Chief Financial Officer, has determined that, for the first five years the proposed new section and amendments are in effect, enforcing or administering the new section and amendments 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 new section and amendments will not have an adverse economic effect on small businesses or micro-businesses because the new section and amendments, which allow DADS to issue certification more quickly to an applicant with a history of compliance with assisted living facility 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 new section and amendments are in effect, the public benefit expected as a result of enforcing the new section and amendments is a facility or unit of a facility will be certified more quickly, thereby providing more options for an individual seeking services from a facility.

Ms. Henderson anticipates that there will not be an economic cost to persons who are required to comply with the new section and amendments. The new section and amendments 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 Division. Written comments on the proposal may be submitted to Texas Register Liaison, HHSC Policy and Performance-16R09, 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 emailed 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 emailed by midnight on the last day of the comment period. When faxing or emailing comments, please indicate "Comments on Proposed Rule 16R09" 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; and Texas Health and Safety Code, §247.029, which provides that the HHSC executive commissioner shall adopt rules that govern facilities that provide personal care services to residents who have Alzheimer's disease or related disorders.

The new section implements Texas Government Code, §531.0055 and Texas Health and Safety Code, §247.029.