The Texas Department of Human Services (DHS) proposes to amend §97.2, concerning definitions; §97.11, concerning application and issuance of initial license; §97.12, concerning issuance and renewal of license; §97.303, concerning standards for possession of sterile water or saline, certain vaccines or tuberculin, and certain dangerous drugs; §97.404, concerning standards specific to agencies licensed to provide personal assistance services; §97.601, concerning license denial, suspension or revocation; and §97.602, concerning administrative penalties, in its Licensing Standards for Home and Community Support Services Agencies chapter. The purpose of the amendments is to implement the sections of House Bill (HB) 2292, 78th Legislature, that affect the Health and Safety Code, Chapter 142. HB 2292 no longer requires DHS to license home and community-based services providers that are monitored by the Texas Department of Mental Health and Mental Retardation (TDMHMR). HB 2292 also exempts from DHS licensure employees of entities that act as consumer fiscal agencies under Government Code, §531.051; amends the statutory definitions; prohibits persons from implying or indicating they are licensed to provide personal assistance services when they are not licensed; provides registered nurses (RNs) with greater flexibility relating to RN delegation; and amends the list of dangerous drugs for which an agency can be responsible.

Proposed §97.2 amends the definition of "certified agency" and "personal assistance services" and adds a new definition for "personal care." The amendments to §97.11 and §97.12 remove license application requirements for agencies now exempt from licensure. Amendments to §§97.12, 97.404, 97.601, and 97.602 update references within the chapter. The table outlining Severity Level I Violations in Figure: 40 TAC §97.602(d)(3)(C) and the table outlining Severity Level II Violations in Figure: 40 TAC §97.602(d)(4)(B) update rule citations and correct grammar. The amendment to §97.303 adds pneumococcal polysaccharide vaccine to the list of dangerous drugs that an agency or its employees who are RNs or LVNs may purchase, store, or transport for the purpose of administering to the agency's employees, clients, or client family members. The amendment to §97.404 adds language that prohibits a person not licensed to provide personal assistance services from indicating or implying he is licensed to provide those services; amends the tasks that may be performed under the personal assistance services category, which conforms to the amended definition of personal care; and adds language that allows an RN to determine which health-related tasks require delegation under the personal assistance services category of licensure. An amendment to §97.602 removes language relating to agencies that now are exempt from licensure.

Bobby Halfmann, Chief Financial Officer, has determined that, for the first five-year period the proposed sections are in effect, there are fiscal implications for state government as a result of enforcing or administering the sections. There are no fiscal implications for local governments as a result of enforcing or administering the sections.

The effect on state government for the first five-year period the sections are in effect is an estimated reduction in cost of $26,730 in fiscal year (FY) 2004; $26,730 in FY 2005; $26,730 in FY 2006; $26,730 in FY 2007; and $26,730 in FY 2008. There also is an estimated loss in revenue of $227,500 in FY 2004; $227,500 in FY 2005; $227,500 in FY 2006; $227,500 in FY 2007; and $227,500 in FY 2008.

Bettye M. Mitchell, Deputy Commissioner for Long Term Care, has determined that, for each year of the first five years the sections are in effect, the public benefits anticipated as a result of enforcing the sections are: (1) providing clarity that only a provider with an HCSSA license from DHS may provide personal assistance services; (2) removing licensing requirements for home and community-based services providers that are monitored by TDMHMR, which reduces the duplication of authority over HCSSAs; (3) allowing RNs to determine which health-related personal assistance services tasks require delegation, which will give RNs greater flexibility; (4) allowing agency RNs and LVNs to purchase, store, or transport pneumococcal polysaccharide vaccines, which will give employees, clients, and client family members greater access to the vaccine; and (5) removing language regarding administrative penalty assessments against agencies now exempt from licensure, which deletes extraneous language. There may be an adverse economic effect on businesses of any size, whether large, small, or micro, if the businesses are providing personal assistance services, as those services are defined in Health and Safety Code, §242.001, without a license. Unlicensed personal assistance services providers will be required to become licensed and pay an $875 license fee annually. If these providers continue to operate without a license, they will be liable for a civil penalty of not less than $1,000 or more than $2,500 for each day of violation. There is no anticipated effect on local employment in geographic areas affected by these sections.

Questions about the content of this proposal may be directed to Linda Kotek at (512) 438-3158 in DHS's Long Term Care-Policy section. Written comments on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-246, Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register.

Under §2007.003(b) of the Government Code, DHS has determined that Chapter 2007 of the Government Code does not apply to these rules. Accordingly, DHS is not required to complete a takings impact assessment regarding these rules.

The amendment is proposed under the Health and Safety Code, Chapter 142, which provides DHS with the authority to adopt rules for the licensing and regulation of home and community support services agencies.

The amendment implements the Health and Safety Code, §§142.001 - 142.030.