As required by Texas Government Code, §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all of its functions were transferred to the Health and Human Services Commission (HHSC) in accordance with Texas Government Code, §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1 govern functions previously performed by DADS that have transferred to HHSC. Texas Government Code, §531.0055, requires the executive commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, including rules in Title 40, Part 1. Therefore, HHSC proposes amendments to §90.3, concerning Definitions; §90.236, concerning Administrative Penalties; and §90.240, concerning Right to Correct, in Title 40, Chapter 90, Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions.

BACKGROUND AND PURPOSE

The proposed amendments implement Texas Health and Safety Code (THSC) §252.065, as amended by House Bill (H.B.) 2025, 85th Legislature, Regular Session, 2017. Specifically, §252.065 requires HHSC to develop a system to record and track the scope and severity of licensure violations by an intermediate care facility for individuals with an intellectual disability (ICF/IID) for the purpose of assessing an administrative penalty or taking other enforcement action. The system must be similar to the one used by the Centers for Medicare & Medicaid Services to categorize the scope and severity of violations for nursing facilities. Section 252.065 also describes the circumstances under which HHSC may not allow an ICF/IID license holder to correct a violation before assessing an administrative penalty. The proposed amendments describe the system for assessing administrative penalties based on the scope and severity of a violation. The proposed amendments also add the circumstances under which HHSC will not allow an ICF/IID license holder to correct a violation before HHSC assesses an administrative penalty.

The proposed amendments also change references from "DADS" to "HHSC" to reflect that DADS was abolished on September 1, 2017, and its functions were transferred to HHSC.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §90.3, Definitions, adds definitions for "actual harm," "immediate threat to the health or safety of a resident," "isolated," "pattern of violation," "potential for minimal harm," "violation," and "widespread in scope." Definitions of those terms are necessary for implementation of the proposed system to record and track licensure violations. The proposed amendment deletes the definition of "immediate and serious threat" because the term will no longer be used in Chapter 90. The proposed amendment adds a definition of "resident," a term used throughout Chapter 90, to clarify that it means a person who resides in an ICF/IID. In addition, the proposed amendment adds a definition of "HHSC" and amends the definitions of "DADS" and "department" to mean HHSC. This change is necessary because DADS has been abolished and its functions were transferred to HHSC. When all references to "DADS" and "department" are removed from Chapter 90, the definitions will be deleted. Edits were made to ensure consistency and clarity and the section was renumbered to accommodate the addition and removal of definitions.

The proposed amendment to §90.236, Administrative Penalties, states that HHSC may assess an administrative penalty for a violation that creates a potential for more than minimal harm, results in actual harm, or poses an immediate threat to the health or safety of a resident. In addition, the current administrative penalties table is replaced with a table that categorizes licensure violations based on their scope and severity. Subsection (e) is amended to state that the scope and severity of a violation will be used to determine the range of the administrative penalty assessed. Subsection (b) is deleted because necessary definitions are proposed in §90.3. Subsections (f) and (g) are deleted because progressive administrative penalties will not be used to assess administrative penalties in accordance with subsection (a)(1). The proposed amendment sets forth the amounts that will be assessed for violations described in subsection (a)(2) - (8), which are based on the licensed capacity of the ICF/IID and the number of times the license holder has been cited for the violation. The proposed amendment makes other non-substantive editorial changes for consistency and clarity, including replacing "DADS" with "HHSC."

The proposed amendment to §90.240, Right to Correct, describes the circumstances under which HHSC does not allow a facility to correct a violation prior to assessing an administrative penalty, consistent with Texas Health and Safety Code, §252.065(e). The proposed amendment also clarifies that HHSC gives a facility at least 45 days to correct minor violations before assessing an administrative penalty. The proposed amendment makes other non-substantive editorial changes for consistency and clarity, including replacing "DADS" with "HHSC" and adding reference titles where appropriate.

FISCAL NOTE

Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that for each year of the first five years that the proposed amendments will be in effect, there may be fiscal implications to revenues of state governments as a result of enforcing and administering the amendments. HHSC lacks sufficient data to determine if the rule as proposed will result in the collection of administrative penalties in greater or lesser amounts than under current rules.

Greta Rymal has also determined that there will be no additional costs to state government because the tracking functionality related to scope and severity currently exists in regulatory survey operations' database and only requires activation for ICF/IID. There will be no fiscal implications to local governments as a result of enforcing and administering the rules as proposed.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the proposed amendments will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of employee positions;

(3) implementation of the proposed rules will not require an increase or decrease in future legislative appropriations;

(4) the proposed rules will not affect fees paid to the agency;

(5) the proposed rules will not create a new rule;

(6) the proposed rules will not expand, limit, or repeal an existing rule;

(7) the proposed rules will not change the number of individuals subject to the rule; and

(8) the proposed rules will not have an effect on the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Greta Rymal has also determined that there may be an economic impact to small businesses, micro-businesses or rural communities as a result of the proposed rules. HHSC lacks data to provide an estimate of how many may be adversely affected by the proposed rule change.

License holders currently must pay administrative penalties for licensure violations under certain circumstances. The rule adds a requirement that HHSC assess penalties for repeated violations of certain requirements within two years of the initial violation and provides no opportunity for the ICF/IID to correct the violation and avoid penalty. HHSC cannot determine if the proposed rules for assessing administrative penalties will result in any license holders paying more administrative penalties than under the current rules.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There are no anticipated economic costs to persons who are required to comply with the proposed rules.

There is no anticipated negative impact on local employment.

COSTS TO REGULATED PERSONS

Texas Government Code, §2001.0045 does not apply to these proposed rules because the amendments are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT

Mary T. Henderson, Associate Commissioner for Long-Term Care Regulatory Services, has determined that for each year of the first five years the amendments are in effect, the public will benefit from HHSC being able to more efficiently assess administrative penalties, enhancing its ability to enforce health and safety standards in licensed ICF/IIDs.

TAKINGS IMPACT ASSESSMENT

HHSC 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 Josie Esparza at (512) 438-4077 in HHSC Long-Term Care Regulatory Services Division. Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 149030, Mail Code H600, Austin, Texas 78714-9030, or street address 4900 North Lamar Boulevard, Austin, Texas 78751; or e-mailed to HHSCRulesCoordinationOffice@hhsc.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 before 5:00 p.m. on the last working day of the comment period; or (3) e-mailed by midnight on the last day of the comment period. When e-mailing comments, please indicate "Comments on Proposed Rule 40R063" 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; and Texas Health and Safety Code, §252.033, which authorizes the executive commissioner to adopt rules related to the licensure of ICF/IIDs.

The amendment implements Texas Government Code, §531.0055 and Texas Health and Safety Code, §252.033.