The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §§559.201, 559.203, 559.205, 559.207, 559.209, 559.211, 559.213, 559.215, 559.217, 559.219, 559.221, 559.223, 559.225, 559.227, 559.229, 559.231, 559.233, 559.235, 559.237, 559.239, 559.241, 559.243, 559.245, 559.247, 559.249, and 559.251, in new Subchapter H, Individualized Skills and Socialization Provider Requirements.

BACKGROUND AND PURPOSE

In 2014, the Centers for Medicare & Medicaid Services issued regulations governing the settings in which Medicaid home and community based services are provided. To comply with the regulations, HHSC will replace existing day habilitation services in the Deaf Blind with Multiple Disabilities, Home and Community-based Services, and Texas Home Living Medicaid waiver programs with a new service for individuals with intellectual and developmental disabilities. This new, more integrated service is called individualized skills and socialization.

The purpose of the proposal is to implement a new subcategory of day activity and health services (DAHS) licensure for individualized skills and socialization providers. This ensures individualized skills and socialization providers' compliance without the cost and operational complexity involved in creating a new licensure type.

The proposal is necessary to comply with the 2020-2021 General Appropriations Act, 86th Legislature, Regular Session, 2019 (Article II, Health and Human Services Commission, Rider 21), which requires HHSC to establish the individualized skills and socialization provider as a new provider type to replace traditional day habilitation providers. HHSC proposes licensing those new providers under the current DAHS statute (Chapter 103, Texas Human Resources Code) and establishing a new subchapter of rules specific to these providers within existing DAHS rules.

SECTION-BY-SECTION SUMMARY

Proposed §559.201, Purpose, outlines statutory authority, applicability, and specific exclusions from applicability of the subchapter for DAHS facilities.

Proposed §559.203, Definitions, establishes definitions of terms specific to this subchapter.

Proposed §559.205, Criteria for Licensing, describes the license application process and requirements for applicants.

Proposed §559.207, Increase in Capacity, establishes that a license holder must obtain approval from HHSC and apply for a new license to increase the license holder's capacity.

Proposed §559.209, Renewal Procedures and Qualifications, describes the license renewal process and what qualifies as a complete application.

Proposed §559.211, Change of Ownership and Notice of Changes, outlines the process for change of ownership and describes the actions the license holder and HHSC will take for this process.

Proposed §559.213, Time Periods for Processing Licensing Applications, outlines HHSC's time periods for processing applications for a license and explains exceptions for good cause.

Proposed §559.215, Criteria for Denying a License or Renewal of a License, explains the criteria HHSC will follow regarding the denial of a license and establishes the applicant's right to due process regarding the denial.

Proposed §559.217, Opportunity to Show Compliance, describes the process a license holder may take to show compliance prior to the revocation or suspension of a license by HHSC.

Proposed §559.219, License Fees, establishes the fee for a one-, two-, or three-year license. It also describes the circumstances under which HHSC will charge a late fee, and the cost of the late fee.

Proposed §559.221, Relocation, establishes that a license holder must obtain approval from HHSC and submit a new license application to relocate the operation to a new location.

Proposed §559.223, Voluntary Closure, outlines the process a license holder must follow if they choose to permanently close their operation.

Proposed §559.225, General Requirements, describes the general requirements an individualized skills and socialization prover must follow, including pre-employment screening and rights protection.

Proposed §559.227, Program Requirements, describes the detailed requirements individualized skills and socialization providers must follow in the implementation of their program services. This rule describes the staff qualifications for a director and service providers, staffing requirements, staff responsibilities, requirements for on-site and off-site service provision, initial and ongoing training requirements, medication administration and storage, and accident, injury, and infection control requirements.

Proposed §559.229, Emergency Response Plan, requires individualized skills and socialization providers to develop and implement an emergency response plan that includes the eight core functions of emergency management. It also requires training on the plan and conducting fire and evacuation drills.

Proposed §559.231, Inspections, Surveys, and Visits, describes the process HHSC will follow for initial inspections and complaint investigations. This rule requires HHSC to inspect the individualized skills and socialization provider at least once every two years. This rule also requires the individualized skills and socialization provider to make its records available to HHSC upon request.

Proposed §559.233, Determinations and Actions Pursuant to Inspections, describes the process HHSC will follow after an inspection regarding potential violations and outlines the process the individualized skills and socialization provider will follow to submit a plan of correction or request an informal dispute resolution.

Proposed §559.235, Referrals to the Attorney General, establishes that HHSC may refer an individualized skills and socialization provider to the attorney general who may petition a district court for a temporary restraining order or injunction if HHSC believes that a violation creates an immediate threat to the health and safety of an individual.

Proposed §559.237, Procedures for Inspection of Public Records, describes the process for a requester and HHSC to follow regarding the inspection of public records in the custody of HHSC.

Proposed §559.239, Definitions of Abuse, Neglect, and Exploitation, establishes the definitions of abuse, neglect, and exploitation applicable to an individualized skills and socialization provider.

Proposed §559.241, Reporting Abuse, Neglect, Exploitation, or Critical Incidents, describes the requirements for reporting abuse, neglect, exploitation, or critical incidents to HHSC.

Proposed §559.243, Complaint Investigation, describes the process HHSC will follow regarding complaint investigations and investigations of abuse, neglect, or exploitation.

Proposed §559.245, Confidentiality, establishes that all reports, records, communications, and working papers used or developed by HHSC in an investigation are confidential and may be released only as provided in this section.

Proposed §559.247, Nonemergency Suspension, establishes that HHSC may suspend a license when a violation of the licensure rules threatens to jeopardize the health and safety of individuals. The rule outlines the process HHSC will follow and describes the individualized skills and socialization provider's due process.

Proposed §559.249, Revocation, establishes that HHSC may revoke a license under specific circumstances and outlines the individualized skills and socialization provider's due process.

Proposed §559.251, Emergency Suspension and Closing Order, establishes HHSC's ability to suspend a license or order an immediate closing of an operation under specific circumstances and outlines the individualized skills and socialization provider's due process.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, there will be an estimated additional cost and an increase in revenue to state government as a result of enforcing and administering the rules as proposed.

The effect on state government for each year of the first five years the proposed rules are in effect is an estimated cost of $1,700,000 in fiscal year (FY) 2023, $1,700,000 in FY 2024, $1,700,000 in FY 2025, $1,700,000 in FY 2026, and $1,700,000 in FY 2027, and an increase in revenue of $60,000 in FY 2023, $20,000 in FY 2024, $20,000 in FY 2025, $20,000 in FY 2026, and $20,000 in FY 2027.

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

(2) implementation of the proposed rules will create new HHSC employee positions;

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

(4) the proposed rules will require an increase in fees paid to HHSC;

(5) the proposed rules will create new rules;

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

(7) the proposed rules will increase the number of individuals subject to the rules; and

(8) HHSC has insufficient information to determine the proposed rules' effect on the state's economy.

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

Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities.

HHSC has no basis for an expectation of whether there will be an adverse economic effect on small businesses, micro-businesses, or rural communities. There are currently no individualized skills and socialization providers licensed.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules are necessary to receive a source of federal funds or comply with federal law.

PUBLIC BENEFIT AND COSTS

Stephen Pahl, Deputy Executive Commissioner for Regulatory Services, has determined that for each year of the first five years the rules are in effect, the public benefit will be improved oversight of day activity and community integration services for individuals with intellectual disabilities who receive Home and Community-based, Texas Home Living, and Deaf Blind and Multiple Disability waiver services. Another anticipated public benefit is reduced cost to implement the new service by using existing state resources such as existing licensing systems and new and existing rules, enforcement processes, and complaint intake and resolution systems to license individualized skills and socialization providers under the DAHS license.

Trey Wood has also determined that for the first five years the rules are in effect, persons who are required to comply with the proposed rules may incur economic costs because the rules require the payment of $75 for a three-year license fee, $50 for a two-year license fee, or $25 for a one-year license fee.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that the 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

Written comments on the proposal may be submitted to HHSC Long-term Care Regulation Policy and Rules, Mail Code E-370, 701 W. 51st Street, Austin, Texas 78751, or by email to HHSCLTCRRules@hhs.texas.gov.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. 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) emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 22R050" in the subject line.

STATUTORY AUTHORITY

The new sections are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rule-making authority; Texas Human Resources Code §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program; and Texas Human Resources Code §103.004 and §103.005, which respectively provide that the Executive Commissioner of HHSC shall adopt rules for implementing Chapter 103 and adopt rules for licensing and setting standards for facilities licensed under Chapter 103.

The new sections affect Texas Government Code §§531.0055, 531.021, and 531.033, Texas Human Resources Code §32.021, and Texas Human Resources Code, Chapter 103.