The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts 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.

New §§559.201, 559.207, 559.215, 559.217, 559.221, 559.235, 559.239, 559.247, and 559.249 are adopted without changes to the proposed text as published in the August 12, 2022, issue of the Texas Register (47 TexReg 4827). These rules will not be republished.

New §§559.203, 559.205, 559.209, 559.211, 559.213, 559.219, 559.223, 559.225, 559.227, 559.229, 559.231, 559.233, 559.237, 559.241, 559.243, 559.245, and 559.251 are adopted with changes to the proposed text as published in the August 12, 2022, issue of the Texas Register (47 TexReg 4827). These rules will be republished.

BACKGROUND AND JUSTIFICATION

The purpose of the new rules 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 with appropriate oversight and regulations without the cost and operational complexity involved in creating a new licensure type.

The new rules are 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. These new rules license these new providers under the current DAHS statute (Chapter 103, Texas Human Resources Code) and establish a new subchapter of rules specific to these providers within existing DAHS rules.

COMMENTS

The 31-day comment period ended September 12, 2022. During this period, HHSC received 173 comments regarding the proposed rules from 18 commentors, including individuals and organizations such as the Alliance of and for Visually Impaired Texans, Touch Base Center for the Deaf and Blind, Twin Visions Corporation, Caregiver, Sonshine Center, Every Child, Inc., Gateway Community Partners, High Point Village, Texas Council, and combined comments from Private Provider's Association of Texas and Provider's Alliance for Community Services of Texas. A summary of comments relating to the Individualized Skills and Socialization Rules and HHSC's responses follows.

Comment: Several commenters made similar remarks about §559.203. Commenters requested more specificity in the definitions for capacity, evacuation, and reportable event.

Response: HHSC declines to make changes as capacity is not determined by HHSC, evacuation may differ depending on the nature of the emergency, and reportable events are outlined in §559.241.

Comment: A commentor requested that HHSC add provisions for off-site only application to the licensure rule §559.205.

Response: HHSC agreed to add off-site only requirements to the licensing rule language to accommodate providers who do not have an on-site component.

Comment: Several commentors requested training requirements as outlined in §559.205(d) regarding frequency of required training for individualized skills and socialization licensing applicants.

Response: HHSC declined to make changes as the required training is to be completed once, before the initial license.

Comment: A commentor requested HHSC change the requirement for the program provider to report a name change each time the provider does so, as outlined in §559.205(e)(6).

Response: HHSC declines to make the change as the business name of the program provider is registered with the secretary of state and must be reported every time the program provider changes its assumed ("doing business as") name.

Comment: Several commentors requested that §559.207 provide more specificity regarding how providers calculate capacity and how they change capacity for an individualized skills and socialization provider.

Response: HHSC declines to make changes as capacity is not determined by HHSC; it is determined by local ordinances and building codes. The provider must submit an application for change in capacity to HHSC if it wants to serve more people than it listed in its original application. HHSC can provide guidance regarding capacity independently of this rule project.

Comment: Several commentors requested that §559.209 and §559.219 be amended to eliminate staggered licenses. Commentors suggested that staggered licenses are cumbersome for individualized skills and socialization providers to track and renew.

Response: HHSC declines to eliminate staggered licenses. Staggered licenses will offset the initial influx of license applications to HHSC and allow for a more efficient process. HHSC has revised language in §559.205 and §559.209 to clarify that initial licenses will only be staggered through the end of HHSC fiscal year 2023. HHSC also corrected a citation in §559.219.

Comment: A commentor requested that HHSC eliminate §559.211 because the change of ownership process appeared tedious.

Response: HHSC declines to make the change since two persons cannot each hold a license at the same location. This process prevents the outgoing owner from having to close the location and interrupt business.

Comment: Several commentors requested that HHSC change the timeframe in §559.217 from 10 days to 30 days.

Response: HHSC declines making the change as the 10-day timeframe is consistent with other licensing program requirements.

Comment: A commentor requested that §559.221 include provisions for relocation in the event of an emergency.

Response: HHSC declines to make the change. Rule language includes an emergency response section in §559.229 that includes evacuation and relocation to another facility.

Comment: A commentor requested that HHSC change §559.223 to allow more time to notify HHSC in the event of a facility closure.

Response: HHSC agreed to change language to within at least five days to give providers additional time to notify HHSC in the event of a voluntary closure.

Comment: Several commentors requested HHSC remove the requirements in §559.225 related to provision of client rights to individuals who receive individualized skills and socialization services.

Response: HHSC declines to make the change as the provision of client rights is a statutory requirement in Texas Human Resources Code Chapter 103.

Comment: A commentor requested that HHSC provide clarification in §559.225 related to incident reports.

Response: HHSC agrees with this comment and added clarifying language that the provider must create policies and procedures regarding maintaining incident reports.

Comment: A commentor requested that HHSC add a provision in §559.225 to allow the provider to post information on a website in addition to in the facility itself.

Response: HHSC agreed to add website to the list of places where providers must display information about the business.

Comment: Several commentors requested that the director position as identified in §559.227 be changed to site manager or that the director be allowed to oversee multiple locations.

Response: HHSC agreed to the suggestion and changed director to administrator.

Comment: Several commentors requested that HHSC remove the provision from §559.227 that allows an individualized skills and socialization provider to deny an individual admission to the facility if it cannot meet the individual's needs.

Response: HHSC declines to make changes. Individualized skills and socialization providers are different from Home and Community-based Services (HCS) program providers, and the requirements are different. HCS program providers have choices as to how they meet the needs of the individual and ensure the individual's service plan is executed. Other options may be better suited for the individual.

Comment: Several commentors requested that HHSC remove or revise the provision from §559.227 that requires staffing ratios in accordance with Medicaid policy rules. One commentor requested that HHSC amend the language for clarity.

Response: HHSC declines making changes as Medicaid policy sets the staffing ratios by program. HHSC did make one minor revision for clarity.

Comment: Several commentors requested revision and clarification in §559.227 regarding medication administration, delegation, and training requirements.

Response: HHSC agrees to make the revision and allow for medication administration, delegation, and training requirements to align with Medicaid policy.

Comment: Several commentors requested clarification of intent and provision under §559.227 related to first aid supplies and off-site individualized skills and socialization providers.

Response: HHSC agrees with the recommendation and added language regarding access to first aid supplies for on and off-site providers; however, HHSC declines to make changes regarding what constitutes "immediately" as each situation is different.

Comment: Several commentors requested that HHSC provide additional requirements in §559.229 around evaluation tools and assessments.

Response: HHSC declines to make changes as this rule is about written competency-based assessments for staff members and not individuals receiving services.

Comment: Several commentors requested that HHSC modify requirements in §559.229(c)(2). Commentors requested moving from specific to general requirements.

Response: HHSC declines to make changes as "services" and "assistance" are two different things. For example, the needed services could be transportation and the assistance needed could be a vehicle with wheelchair access capabilities.

Comment: Several commentors requested revision to language in §559.229(d), regarding the eight core functions of emergency management, to include emergency alerts and delivery of emergency alerts. Commentors requested that HHSC removed the requirement to monitor local news and weather reports.

Response: HHSC agrees with the recommendation but will retain the monitoring requirement in rule language. HHCS believes that a provider should monitor local news and weather reports during an emergency to ensure the health and safety of the individuals.

Comment: Several commentors requested that HHSC strike provisions from §559.229(d)(5)(C), and (D). Commentors said that the comprehensive services provider would be responsible for finding another individualized skills and socialization provider to serve the impacted individuals or provide services in an emergency.

Response: HHSC agreed to some modification of rule language when the rule did not impact the health and safety of the individual. HHSC also agreed to amend rule language to clarify when the facility had to post evacuation routes and allows the provider to create and implement evacuation plans that meet the needs of the individual.

Comment: Several commentors requested that HHSC strike §559.229(d)(6) from rule. Commentors said that the comprehensive services provider would be responsible for providing transportation for the individual in an emergency.

Response: HHSC declines to completely remove the paragraph but amended the rule to state that the individualized skills and socialization provider must create a plan for transportation in an emergency, which could include comprehensive program providers or family.

Comment: A commentor requested that HHSC strike §559.229(d)(7)(A) from the rule providing that the comprehensive services provider would be responsible for providing for the health and medical needs of the individual in an emergency. Another requested that the language be simplified.

Response: HHSC declines to remove the subparagraph completely but amended the rule to state that the individualized skills and socialization provider must create a plan that ensures the health and medical needs of an individual in an emergency, which could include comprehensive program providers or family. The individualized skills and socialization provider remains responsible for the health and medical needs of the individual while the individual is in their care.

Comment: A commentor requested that HHSC strike §559.229(d)(8) from the rule providing that an individualized skills and socialization provider would likely call on the comprehensive service provider and family members to evacuate individuals, and comprehensive services providers would be responsible for finding another individualized skills and socialization provider to serve the impacted individuals.

Response: HHSC declines to make the change as ensuring that resources are available during an emergency protects the health and safety of the individual.

Comment: A commentor suggested adding "at the time of the fire drill" to §559.229 (f)(2)(A) for clarity.

Response: HHSC agreed to the addition.

Comment: A commentor suggested HHSC revise §559.229(f)(2)(D) for clarity, specifically what the monthly fire prevention inspection entails and what training is required for the staff member who documents the inspection results. Another commentor suggested removing the provision altogether.

Response: HHSC agreed to remove the provision from rule.

Comment: A commentor requested removing the requirement from §559.231 to provide a list to HHSC that must include the waiver program or funding source used by the individual to receive services from the individualized skills and socialization provider.

Response: HHSC declines to make change as a comprehensive list of individualized skills and socialization recipients will inform the HHSC survey sample.

Comment: Several commentors requested that HHSC remove from §559.241 the requirement to report abuse, neglect, and exploitation to Complaint and Incident Intake (CII) and then follow up with a Provider Investigation report form 3613-A. Commentors requested that the reporting process mirror that of the HCS waiver program.

Response: HHSC declines to make change as this is a licensed facility and allegations of abuse, neglect, and exploitation fall to HHSC Long-Term Care Regulation (LTCR) survey operations and reports of such are triaged through CII.

Comment: Several commentors recommended changing certain reportable incidents by adding to §559.241(b)(3) "resulting from sexual activity between individuals resulting from coercion, physical force, or taking advantage of the disability of an individual" and strike paragraph (b)(6) in reportable incidents to CII.

Response: HHSC agreed to amend the language to resemble DAHS reporting requirements more closely. HHSC removed critical incident language and simplified reporting requirements.

Comment: Several commentors expressed concern regarding the implementation timeline for issuing licenses to new providers. Commentors indicated that given the HHSC deadline of March 2023, HHSC may have difficulty issuing all necessary licenses in a timely manner.

Response: HHSC added the authority to issue a temporary license at its discretion. This will allow HHSC to issue a temporary license to providers in advance of a standard license and provide a more efficient means to process licensure applications.

HHSC made changes to rule language independent of the formal comment process and as a result of internal and external stakeholder feedback. Revisions include:

- changing the word "inspection" to "survey" throughout for clarity and consistency;

- adding requirements regarding fire safety practices, including extinguishers;

- adding requirements for building occupancy and building accessibility;

- adding requirements for off-site only individualized skills and socialization service providers;

- adding community engagement plan attestation requirements to the licensing application;

- adding information about prohibited settings as set forth in the Medicaid HCS program rules;

- adding "in-person" to the definition section;

- adding additional background check information to the service provider section;

- adding additional individual rights information as set forth in the Medicaid Home and Community Based settings requirements; and

- adding a requirement to sign up for the HHSC emergency broadcast system.

HHSC LTCR received several comments that fall outside the scope of this project. Comments recommended that HHSC:

- allow wage work rather than individualized skills and socialization only;

- continue day habilitation as-is, as licensure of individualized skills and socialization services is overly burdensome and unnecessary;

- sufficiently fund the program;

- reconsider the staffing ratios; and

- provide adequate reimbursement rates to cover operational costs.

HHSC did not make the recommended changes as HHSC LTCR rules do not determine:

- whether day habilitation may continue for the state of Texas;

- whether individualized skills and socialization allows individuals to participate in piece work;

- staff to individual ratios;

- funding; or

- reimbursement rates.

These comments were forwarded to HHSC Medicaid Long-term Services and Supports for consideration.

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.