TITLE 40.SOCIAL SERVICES AND ASSISTANCE

Part 1. TEXAS DEPARTMENT OF HUMAN SERVICES

Chapter 48. COMMUNITY CARE FOR AGED AND DISABLED

Subchapter F. IN-HOME AND FAMILY SUPPORT PROGRAM

40 TAC §§48.2721 - 48.2725

The Texas Department of Human Services (DHS) proposes new §48.2721, concerning definitions for the transition to life in the community program, §48.2722, concerning transition to life in the community client eligibility criteria, §48.2723, concerning application for transition to life in the community benefits, §48.2724, concerning transition to life in the community program benefits, and §48.2725, concerning transition to life in the community client rights, in its Community Care for Aged and Disabled chapter. The purpose of the new sections is to create the Transition to Life in the Community (TLC) program as a separate program within the In-home and Family Support Program (IHFSP). The TLC program is being established to facilitate the transition of Medicaid residents from nursing facility-based services to community-based services. The TLC program will assist individuals making this transition by providing one-time or short-term financial assistance of up to $2,500 to pay for costs like rent, security and utility deposits, moving expenses, household items, and other moving-related expenses. The inability to pay for relocation expenses has been identified as a barrier for Medicaid nursing facility residents wishing to transfer to community-based services. Medicaid nursing facility residents generally are able to retain only $60 per month for personal needs and often do not have sufficient savings to pay the costs of re-establishing community residences.

James R. Hine, Commissioner, has determined that for the first five-year period the proposed sections will be in effect there will be fiscal implications for state and local government as a result of enforcing or administering the sections. The effect on state government for the first five-year period the sections will be in effect is an estimated additional cost of $250,000 in fiscal year (FY) 2002; $250,000 in FY 2003; $250,000 in FY 2004; $250,000 in FY 2005; and $250,000 in FY 2006.

Mr. Hine also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be to make additional resources available to help eligible nursing facility residents who wish to receive services in the community settings of their choice. There will be no effect on small or micro businesses as a result of enforcing or administering the sections, because the proposed program will provide assistance with relocation expenses to individuals moving to community residences. There is no anticipated economic cost to persons who are required to comply with the proposed sections. There will be no anticipated effect on local employment in geographic areas affected by these sections.

Questions about the content of this proposal may be directed to Randy Wyatt at (512) 438-4807 in DHS's In-home and Family Support Program section. Written comments on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-124, 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 Texas Government Code, the department has determined that Chapter 2007 of the Government Code does not apply to these rules. Accordingly, the department is not required to complete a takings impact assessment regarding these rules.

The new sections are proposed under the Human Resources Code, Title 2, Chapters 22 and 35, which authorizes the department to administer public assistance and support services for persons with disabilities.

The new sections implement the Human Resources Code, §§22.001 - 22.036 and §§35.001 - 35.012.

§48.2721.Definitions for the Transition to Life in the Community (TLC) Program.

The following words and terms, when used in the portions of this chapter applying to the TLC program (§§48.2721 - 48.2725), have the following meanings, unless the content clearly indicates otherwise.

(1) Case manager--An employee of the Texas Department of Human Services (DHS) who provides case management services, or an employee of an agency that has contracted with DHS to provide relocation services or case management services. The case manager determines eligibility and benefit levels in the TLC program, subject to final approval by DHS.

(2) CBA--The Community Based Alternatives program, a Medicaid waiver program, based on the Social Security Act, §1915(c), which provides a comprehensive array of community-based services for adults age 21 and older who meet the medical necessity criteria for nursing facility care, and who meet all other eligibility criteria for this waiver.

(3) CLASS--The Community Living Assistance and Support Services program, a Medicaid waiver program, based on the Social Security Act, §1915(c), which provides a comprehensive array of community-based services for certain individuals who qualify for an intermediate care facility for the mentally retarded (ICF-MR) VIII level of care, and who meet all other eligibility criteria for this waiver. This program operates in designated counties in Texas.

(4) Community setting--A community setting is any living arrangement chosen by the individual that allows that individual to receive services from the particular waiver program or other community care program providing services to that individual. A community setting is a long-term living arrangement other than a nursing facility; state hospital; state school; medical, rehabilitation, or psychiatric hospital; school for the deaf or blind, Texas Youth Commission facility, Texas Department of Criminal Justice facility, or ICF-MR facility.

(5) DB-MD--The Deaf-Blind with Multiple Disabilities program, a Medicaid waiver program, based on the Social Security Act, §1915(c), which provides a comprehensive array of community-based services for certain individuals who qualify for an intermediate care facility for the mentally retarded (ICF-MR) VIII level of care, and who meet all other eligibility criteria for this waiver. This program operates in designated counties in Texas.

(6) DHS--The Texas Department of Human Services.

(7) Institutional setting--A long-term care nursing facility licensed by DHS.

(8) MDCP--The Medically Dependent Children Program, a Medicaid waiver program, based on the Social Security Act, §1915(c), which provides community-based services to individuals under the age of 21 years who meet the medical necessity criteria for nursing facility or hospital care, and who meet all other eligibility criteria for this waiver.

(9) Promoting Independence--An initiative of the Texas Department of Human Services, under the direction of the Texas Health and Human Services Commission (HHSC), to promote opportunities for a person with a disability to live in the most appropriate care setting of his choice.

(10) TLC--The Promoting Independence Transition to Life in the Community program, a component of the In-home and Family Support Program (IHFSP), which provides a one-time financial grant or other short-term financial assistance to individuals to help them move from a Medicaid-funded residence in a nursing facility into a community setting. The rules and procedures described in §§48.2701 - 48.2711 do not apply to §§48.2721 - 48.2725, which govern TLC services. An individual may not receive services under §§48.2701 - 48.2711 concurrently with services received through the program described in §§48.2721 - 48.2725. An individual who has received TLC services and wants services described in §§48.2701 - 48.2711 must apply under the request and application procedures described in those sections.

§48.2722.Transition to Life in the Community (TLC) Client Eligibility Criteria.

To be eligible to receive benefits from the In-home and Family Support (IHFSP) TLC program, the individual must:

(1) not have received prior benefits through the TLC program.

(2) be a Texas Medicaid recipient who resides in a licensed nursing facility.

(3) be expected to be able to move to a community setting within 60 days after transition funds are made available to the individual.

(4) participate in developing a budget that indicates the financial ability to maintain ongoing household expenses after the temporary TLC assistance, including any temporary rental assistance, has been exhausted.

(5) need assistance with relocation expenses that cannot be met by other resources owned by, or available to, the individual.

(6) be accepted for services in one of the following service programs:

(A) Community Based Alternatives (CBA);

(B) Community Living Assistance and Support Services (CLASS);

(C) Medically Dependent Children Program (MDCP);

(D) Deaf-Blind with Multiple Disabilities (DB-MD);

(E) other DHS community care service programs; or

(F) other Medicaid-funded community-based service program offering ongoing services.

§48.2723.Application for Transition to Life in the Community (TLC) Benefits.

(a) An individual requesting TLC benefits, or an authorized representative, must sign an application for TLC benefits.

(b) An individual requesting TLC services must agree in writing to:

(1) provide to the Texas Department of Human Services (DHS) receipts for all goods, services, or supplies purchased with program funds and make restitution to DHS for funds that were not spent and/or were spent for goods, services, or supplies that were not approved by DHS; and

(2) return or release any unspent TLC funds if unable to move to a community setting within 60 days after the funds are made available. A single extension of 60 days may be allowed if the individual can provide a plan to move to the community within the 60-day extension period.

(c) Individuals requesting temporary rental assistance must agree in writing to the following conditions:

(1) The applicant must file an application for subsidized housing through the federal Department of Housing and Urban Development, the Texas Department of Housing and Community Affairs, a public housing authority, or another program providing housing or rental assistance, and provide a copy of this application to DHS before rental assistance may be approved through the TLC program.

(2) The rental assistance is limited to the difference between $2,500 and the sum of all other transitional assistance received through the TLC program, up to a maximum of $2,500 total, with no expectation of additional funds or extensions of this service.

(3) The applicant must notify the case manager within 10 days of learning that the individual will receive sustainable housing for which TLC rental assistance is not required, or will receive subsidized housing through the U.S. Department of Housing and Urban Development, the Texas Department of Housing and Community Affairs, a public housing authority, or other program providing housing or rental assistance.

(4) Rental assistance will cease if the individual receives sustainable housing for which TLC rental assistance is not required, or receives housing subsidized through the U.S. Department of Housing and Urban Development, the Texas Department of Housing and Community Affairs, a public housing authority, or other program providing housing or rental assistance.

(d) If no funds are available for TLC program services, the name of an individual who has requested TLC benefits is placed on an interest list for the TLC program.

(e) If funds become available to serve individuals on the interest list, names of individuals are removed from the interest list in the order in which the state office of DHS is notified that the service plan for the Community Based Alternatives (CBA), Community Living Assistance and Support Services (CLASS), Medically Dependent Children Program (MDCP), Deaf-Blind with Multiple Disabilities (DB-MD) programs, other DHS community care services, or other Medicaid-funded community-based service program has been developed for an individual who has applied for TLC benefits.

§48.2724.Transition to Life in the Community (TLC) Program Benefits.

(a) TLC program benefits are contingent upon the availability of funds budgeted for this program to the Texas Department of Human Services (DHS).

(b) An eligible individual may receive up to a maximum of $2,500 to pay for the following expenses related to moving and household start-up costs, if the expenses are approved by the case manager and DHS:

(1) expenses directly related to moving, such as the cost of paying others to move household belongings, the cost of moving cartons, and the cost of transporting the individual to the community setting;

(2) rent deposits, limited to the first and last month's rent plus reasonable damage and security deposits;

(3) utility deposits, including deposits required by electricity, gas, water, wastewater, telephone, and sanitation companies;

(4) cooking utensils, dishes, cleaning supplies, furniture, appliances, towels, sheets, blankets, and other items needed to set up a household;

(5) other moving-related expenses and household start-up costs approved by the case manager and DHS; and

(6) temporary rental assistance payments.

(c) Availability of funds and approval of benefits must be confirmed by DHS before commitment is made to disburse funds.

(d) The TLC program will not provide benefits that the individual is eligible for and able to receive through any other program.

(e) The TLC program benefits may not include items or services that are included in the reimbursement rate for Community Based Alternatives (CBA), Community Living Assistance and Support Services (CLASS), Medically Dependent Children Program (MDCP), Deaf-Blind with Multiple Disabilities (DB-MD), other DHS community care contracted providers, or other Medicaid-funded community-based service programs.

(f) If individuals requesting TLC benefits will share a common household, the information in paragraphs (1) - (2) of this subsection apply:

(1) If all individuals meet the eligibility criteria, each individual may receive a grant up to the maximum as long as no duplication of expenses occurs.

(2) If only one household member meets the eligibility criteria, only the eligible household member may receive the grant. The ineligible household member's moving-related expenses and household start-up costs may be included in the eligible household member's grant, subject to the $2,500 limit, provided the ineligible household member is moving to the same community setting as the eligible household member.

(g) Payments may be made directly to the eligible individual, or authorized representative, by employees of organizations under contract with DHS to provide relocation services or case management, or through DHS Community Care In-home and Family Support staff, according to procedures developed by DHS.

§48.2725.Transition to Life in the Community (TLC) Client Rights.

(a) The individual requesting TLC funds, or the authorized representative acting on the individual's behalf, will be notified if the individual's name is placed on an interest list because funds are not available at the time of the request.

(b) The individual requesting TLC funds, or the authorized representative, will receive written notification after a decision has been made regarding eligibility for TLC benefits. If the individual is determined eligible, the written notice states the amount of the benefits the individual will receive.

(c) The individual who has been notified of the eligibility decision regarding TLC funds may request a hearing to appeal the denial of eligibility or the amount of benefits, if the benefits are less than the maximum benefit of $2,500 and if the request is made within 90 days of the date of notification of the eligibility decision.

(d) If an individual is denied TLC funds because they receive housing for which TLC rental assistance is not required, or receive subsidized housing from the U.S. Department of Housing and Urban Development, the Texas Department of Housing and Community Affairs, a local public housing authority, or other program providing housing or rental assistance, the denial will not be affected by an appeal.

(e) The maximum funds available for all approved transition expenses to an individual under the TLC program is $2,500, with no additional funds available even if an individual files an appeal.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 22, 2002.

TRD-200201775

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: May 5, 2002

For further information, please call: (512) 438-3734

Chapter 90. INTERMEDIATE CARE FACILITIES FOR PERSONS WITH MENTAL RETARDATION OR RELATED CONDITIONS

The Texas Department of Human Services (DHS) proposes the repeal of §90.324, concerning emergency medication kit; amendments to §90.3, concerning definitions; §90.42, concerning standards for facilities serving persons with mental retardation or related conditions; §90.191, concerning procedural requirements; and §90.326, required postings; and new §90.324, concerning emergency medication kit, in its Intermediate Care Facilities for Persons with Mental Retardation or Related Conditions chapter. The purpose of the amendments, repeal, and new language is as follows. Section 90.3 adds definitions for the Centers for Medicare and Medicaid Services, immediate jeopardy to health and safety, credentials for a quality of care monitor, and specialized staff. Section 90.42 removes the requirement for DHS to perform criminal history checks. Section 90.191 requires that specialized staff conduct ICF/MR survey functions. The repeal of §90.324 removes references to the Department of Pharmacy's rules on remote pharmacies for emergency medication kits. Section 90.326 requires facilities to post notices that families and staff are protected against retaliation for reporting abuse or neglect.

James R. Hine, Commissioner, has determined that for the first five-year period the proposed sections will be in effect there will be fiscal implications for state government as a result of enforcing or administering the sections. The effect on state government for the first five-year period the sections will be in effect is an estimated reduction in cost of $15,000 in fiscal year (FY) 2002; $15,000 in FY 2003; $15,000 in FY 2004; $15,000 in FY 2005; and $15,000 in FY 2006. There will be no fiscal implications for local government as a result of enforcing or administering the sections. There will be an effect on small and micro businesses as a result of enforcing or administering the sections, because providers will have to pay DPS an average of $2.25 for each criminal history check. The cost for the checks, anticipated in total as $15,000 in fiscal year (FY) 2002; $15,000 in FY 2003; $15,000 in FY 2004; $15,000 in FY 2005; and $15,000 in FY 2006, will be proportional to the number of employees a business hires. The same cost applies to persons who are required to comply with the proposed sections.

Mr. Hine also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of adoption of the proposed amendments will be that facilities will now be able to conduct criminal history checks in a more timely manner, the quality of ICF/MR inspections will be enhanced by the use of specialized staff, pharmacists will be responsible for monitoring the use and storage of the emergency medication kits, and family members will be protected from retaliation if they report abuse or violations. There will be no anticipated effect on local employment in geographic areas affected by these sections.

Questions about the content of this proposal may be directed to Rose Rossman at (512) 438-3750 in DHS's Long Term Care Policy Section. Written comments on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-098, 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 Texas Government Code, the department has determined that Chapter 2007 of the Government Code does not apply to these rules. Accordingly, the department is not required to complete a takings impact assessment regarding these rules.

Subchapter A. INTRODUCTION

40 TAC §90.3

The amendment is proposed under the Health and Safety Code, Chapter 252, Title 4, which authorizes the department to license intermediate care facilities for the mentally retarded.

The amendment implements the Health and Safety Code, §§252.001-252.186.

§90.3.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Individual subchapters may have definitions which are specific to the subchapter.

(1)-(8) (No change.)

(9) Centers for Medicare and Medicaid Services (CMS)--The federal agency that provides funding and oversight for the Medicare and Medicaid programs. CMS was formerly known as the Health Care Financing Administration (HCFA).

(10) [ (9) ] Change of ownership--A change of 50% or more in the ownership of the business organization that is licensed to operate the facility, or a change in the federal tax payer identification number.

(11) [ (10) ] Controlled substance--A drug, substance, or immediate precursor as defined in the Texas Controlled Substance Act, Health and Safety Code, Chapter 481, as amended, and/or the Federal Controlled Substance Act of 1970, Public Law 91-513, as amended.

(12) [ (11) ] Dangerous drug--Any drug as defined in the Texas Dangerous Drug Act, Health and Safety Code, Chapter 483.

(13) [ (12) ] Department--Texas Department of Human Services.

(14) [ (13) ] Designee--A state agency or entity with which the department contracts to perform specific, identified duties related to the fulfillment of a responsibility prescribed by this chapter.

(15) [ (14) ] Drug (also referred to as medication)--A drug is:

(A) any substance recognized as a drug in the official United States Pharmacopeia, official Homeopathic Pharmacopeia of the United States, or official National Formulary, or any supplement to any of them;

(B) any substance intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man;

(C) any substance (other than food) intended to affect the structure or any function of the human body; and

(D) any substance intended for use as a component of any substance specified in subparagraphs (A)-(C) of this paragraph. It does not include devices or their components, parts, or accessories.

(16) [ (15) ] Establishment--A place of business or a place where business is conducted which includes staff, fixtures, and property.

(17) [ (16) ] Facility--A facility serving persons with mental retardation or related conditions licensed under this chapter as described in §90.2 of this title (relating to Scope) and required to be licensed under the Health and Safety Code, Chapter 252.

(18) [ (17) ] Governmental unit--A state or a political subdivision of the state, including a county or municipality.

(19) [ (18) ] Hearing--A contested case hearing held in accordance with the Administrative Procedure Act, Government Code, Chapter 2001, and the department's formal hearing procedures adopted in Chapter 79 of this title (relating to Legal Services).

(20) [ (19) ] Immediate and serious threat--A situation in which there is a high probability that serious harm or injury to residents could occur at any time or has already occurred and may occur again if residents are not protected effectively from the harm or if the threat is not removed.

(21) Immediate jeopardy to health and safety--A situation in which immediate corrective action is necessary because the facility's noncompliance with one or more requirements has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident receiving care in the facility.

(22) [ (20) ] Incident--An unusual or abnormal event or occurrence in, at, or affecting the facility and/or the residents of the facility.

(23) [ (21) ] Inspection--Any on-site visit to or survey of a facility by the Texas Department of Human Services for the purpose of inspection of care, licensing, monitoring, complaint investigation, architectural review, or similar purpose.

(24) [ (22) ] Large facility--Facilities with 17 or more resident beds.

(25) [ (23) ] Legal guardian--A person who is appointed guardian under §693 of the Probate Code.

(26) [ (24) ] License--Approval from the Texas Department of Human Services to establish or operate a facility.

(27) [ (25) ] Life Safety Code (also referred to as the Code or NFPA 101)--The Code for Safety to Life from Fire in Buildings and Structures, Standard 101, of the National Fire Protection Association (NFPA).

(28) [ (26) ] Life safety features--Fire safety components required by the Life Safety Code such as building construction, fire alarm systems, smoke detection systems, interior finishes, sizes and thicknesses of doors, exits, emergency electrical systems, sprinkler systems, etc.

(29) [ (27) ] Local authorities--A local health authority, fire marshal, building inspector, etc., who may be authorized by state law, county order, or municipal ordinance to perform certain inspections or certifications.

(30) [ (28) ] Local health authority--The physician having local jurisdiction to administer state and local laws or ordinances relating to public health, as described in the Health and Safety Code, §§121.021-121.025.

(31) [ (29) ] Management services--Services provided under contract between the owner of a facility and a person to provide for the operation of a facility, including administration, staffing, maintenance, or delivery of resident services. Management services shall not include contracts solely for maintenance, laundry, or food services.

(32) [ (30) ] Manager--A person having a contractual relationship to provide management services to a facility.

(33) [ (31) ] Person--An individual, firm, partnership, corporation, association, or joint stock company, and any legal successor of those entities.

(34) [ (32) ] Person with a disclosable interest--Any person who owns 5.0% interest in any corporation, partnership, or other business entity that is required to be licensed under Health and Safety Code, Chapter 252. A person with a disclosable interest does not include a bank, savings and loan, savings bank, trust company, building and loan association, credit union, individual loan and thrift company, investment banking firm, or insurance company unless such entity participates in the management of the facility.

(35) [ (33) ] Qualified mental retardation professional (QMRP) --A person with at least a bachelor's degree who has at least one year of experience working with persons with mental retardation or related conditions.

[ (34) Qualified surveyor--A member of the survey team who is a qualified mental retardation professional.]

(36) Quality-of-care monitor--A registered nurse, pharmacist, or dietitian, employed by the Texas Department of Human Services (DHS), who is trained and experienced in long-term care regulations, standards of practice in long-term care, and evaluation of resident care and functions independently of DHS's Long Term Care-Regulatory Section.

(37) [ (35) ] Remodeling--The construction, removal, or relocation of walls and partitions, or construction of foundations, floors, or ceiling-roof assemblies, including expanding of safety systems (i.e., sprinkler systems, fire alarm systems), that will change the existing plan and use areas of the facility.

(38) [ (36) ] Renovation--The restoration to a former better state by cleaning, repairing, or rebuilding, e.g., routine maintenance, repairs, equipment replacement, painting.

(39) [ (37) ] Small facilities--Facilities with 16 or fewer resident beds.

(40) Specialized staff--Personnel with expertise in developmental disabilities.

(41) [ (38) ] Standards--The minimum conditions, requirements, and criteria with which a facility will have to comply to be licensed under this chapter.

(42) [ (39) ] Universal precautions--The use of barrier precautions by facility personnel to prevent direct contact with blood or other body fluids that are visibly contaminated with blood.

(43) [ (40) ] Well-recognized church or religious denomination--An organization which has been granted a tax-exempt status as a religious association from the state or federal government.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 20, 2002.

TRD-200201738

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: May 5, 2002

For further information, please call: (512) 438-3734

Subchapter C. STANDARDS FOR LICENSURE

40 TAC §90.42

The amendment is proposed under the Health and Safety Code, Chapter 252, Title 4, which authorizes the department to license intermediate care facilities for the mentally retarded.

The amendment implements the Health and Safety Code, §§252.001-252.186.

§90.42.Standards for Facilities Serving Persons with Mental Retardation or Related Conditions.

(a)-(d) (No change.)

(e) Additional requirements.

(1) The facility must develop and implement policies and procedures regarding injuries, accidents, and unusual incidents that [ which ] involve or affect residents. These policies and procedures must include the following provisions.

(A) (No change.)

(B) The provider or facility must conduct a criminal history check, as outlined in §90.321 of this title (relating to Investigation of Facility Employees), in compliance with the Health and Safety Code, Title 4, Chapter 250 (relating to Nurse Aide Registry and Criminal History Checks of Employees and Applicants for Employment in Certain Facilities Serving the Elderly or Persons with Disabilities) [ , which requires DHS to perform criminal history checks on persons employed by certain types of facilities ].

(2)-(11) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 20, 2002.

TRD-200201739

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: May 5, 2002

For further information, please call: (512) 438-3734

Subchapter F. INSPECTIONS, SURVEYS, AND VISITS

40 TAC §90.191

The amendment is proposed under the Health and Safety Code, Chapter 252, Title 4, which authorizes the department to license intermediate care facilities for the mentally retarded.

The amendment implements the Health and Safety Code, §§252.001-252.186.

§90.191.Procedural Requirements.

(a) (No change.)

(b) An inspection must [ may ] be conducted by an individual qualified surveyor or by a team, of which one member is a specialized staff person who has expertise in developmental disabilities [ qualified surveyor ].

(c)-(k) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 20, 2002.

TRD-200201740

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: May 5, 2002

For further information, please call: (512) 438-3734

Subchapter L. PROVISIONS APPLICABLE TO FACILITIES GENERALLY

40 TAC §90.324

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Human Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed under the Health and Safety Code, Chapter 252, Title 4, which authorizes the department to license intermediate care facilities for the mentally retarded.

The repeal implements the Health and Safety Code, §§252.001-252.186.

§90.324.Emergency Medication Kit.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 20, 2002.

TRD-200201741

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: May 5, 2002

For further information, please call: (512) 438-3734

40 TAC §90.324, §90.326

The new section and the amendment are proposed under the Health and Safety Code, Chapter 252, Title 4, which authorizes the department to license intermediate care facilities for the mentally retarded.

The new section and the amendment implement the Health and Safety Code, §§252.001-252.186.

§90.324.Emergency Medication Kit.

Stocks of inventoried emergency medications may be kept in facilities.

(1) Emergency medication kits must be maintained in compliance with the Texas State Board of Pharmacy rules in 22 TAC §291.20 (relating to Remote Pharmacy Services).

(2) Facilities must have contracts with the provider pharmacy that provides the emergency medication kit. The contract must outline the services to be provided by the pharmacy and the responsibilities and accountabilities of each party in fulfilling the terms of the contract in compliance with federal and state laws and regulations.

§90.326.Required Postings.

Each facility shall prominently and conspicuously post for display in a public area of the facility that is readily available to residents, employees, and visitors:

(1)-(2) (No change.)

(3) a notice in the form prescribed by the department stating that inspection and related reports are available at the facility for public inspection and providing the department's toll-free telephone number that may be used to obtain information concerning the facility; [ and ]

(4) a copy of the most recent inspection report relating to the facility ; and [ . ]

(5) a notice, in English and Spanish, stating that employees, other staff, residents, volunteers, and family members and guardians of residents are protected from discrimination or retaliation as specified in the Health and Safety Code, §§252.132- 252.133 (relating to Suit for Retaliation and Suit for Retaliation Against Resident).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 20, 2002.

TRD-200201742

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: May 5, 2002

For further information, please call: (512) 438-3734

Chapter 92. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES

The Texas Department of Human Services (DHS) proposes to amend §92.3, concerning definitions, and §92.41, concerning standards for type A, type B, and type E assisted living facilities, in its Licensing Standards for Assisted Living Facilities chapter. The proposal incorporates the amendments to the Health and Safety Code, §247.066, which describe how an inappropriately placed resident may be allowed to remain in a facility. The proposal also adds requirements for specific information that must be addressed in comprehensive assessments of residents.

James R. Hine, Commissioner, has determined that for the first five-year period the sections are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the sections.

Mr. Hine also has determined that for each year of the first five years the sections are in effect, the public benefit anticipated as a result of adoption of the proposed rules will be clear guidance for assisted living facility providers and for residents and their families on the process for requesting that an inappropriately placed resident be allowed to remain in a facility. The requirement for a resident comprehensive assessment will benefit the public by providing assisted living facilities with more information about the services a resident may need. Assisted living facilities, residents, and their families will have an assessment tool to help determine if a resident's needs can be met by the facility. The information obtained from the comprehensive assessment will aid the assisted living facility formulate a service plan or plan of care to meet a resident's needs. There will be no adverse economic effect on small or micro businesses, because the proposed changes merely outline the process a facility follows when requesting that an inappropriately placed resident remain in the facility. There is no anticipated economic cost to persons who are required to comply with the proposed sections. 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 Jeanoyce Wilson at (512) 438-2353 in DHS's Long-Term Care Policy section. Written comments on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-113, 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 Texas 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.

Subchapter A. INTRODUCTION

40 TAC §92.3

The amendment is proposed under the Health and Safety Code, Chapter 247, which authorizes DHS to license and regulate assisted living facilities.

The amendment implements the Health and Safety Code, §§247.001 - 247.068.

§92.3.Definitions.

The following words and terms, when used in this chapter, [ shall ] have the following meanings, unless the context clearly indicates otherwise.

(1) - (9) (No change.)

(10) Fire Suppression Authority--The paid or volunteer fire-fighting organization or tactical unit that is responsible for fire suppression operations and related duties once a fire incident occurs within its jurisdiction.

(11) [ (10) ] Governmental unit--The state or any county, municipality or other political subdivision, or any department, division, board, or other agency of any of the foregoing.

(12) [ (11) ] Health care professional--An individual licensed, certified, or otherwise authorized to administer health care, for profit or otherwise, in the ordinary course of business or professional practice. The term includes a physician, registered nurse, licensed vocational nurse, licensed dietitian, physical therapist, and occupational therapist.

(13) [ (12) ] Immediately available--The capacity of facility staff to immediately respond to an emergency after being notified through a communication and/or alarm system. The staff is to be no more than 600 feet from the farthest resident.

(14) [ (13) ] Management services--Services provided under contract between the owner of a facility and a person to provide for the operation of a facility, including administration, staffing, maintenance, or delivery of resident services. Management services do not include contracts solely for maintenance, laundry, or food services.

(15) [ (14) ] Manager--The individual in charge of the day-to-day operation of the facility.

(16) [ (15) ] Medication--Medication is:

(A) any substance recognized as a drug in the official United States Pharmacopoeia, Official Homeopathic Pharmacopoeia of the United States, Texas Drug Code Index or official National Formulary, or any supplement to any of these official documents;

(B) any substance intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease;

(C) any substance (other than food) intended to affect the structure or any function of the body;

(D) any substance intended for use as a component of any substance specified in this definition. It does not include devices or their components, parts, or accessories.

(17) [ (16) ] Medication administration--The direct application of a medication or drug to the body of a resident by an individual legally allowed to administer medication in the State of Texas.

(18) [ (17) ] Medication assistance or supervision--The assistance or supervision of the medication regimen by facility staff. Refer to §92.41(i) of this title (relating to Standards for Type A , [ and ] Type B , and Type E Assisted Living Facilities).

(19) [ (18) ] Medication (self-administration)--The capability of residents to administer their own medication/treatments without assistance from the facility staff.

(20) [ (19) ] NFPA 101--The 1988 publication titled "NFPA 101 Life Safety Code" published by the National Fire Protection Association, Inc., Batterymarch Park, Quincy, Massachusetts 02269.

(21) [ (20) ] Person--Any individual, firm, partnership, corporation, association, or joint stock association, and the legal successor thereof.

(22) [ (21) ] Person with a disclosable interest-- Any [ A person with a disclosable interest is any ] person who owns 5.0% [ five percent ] interest in any corporation, partnership, or other business entity that is required to be licensed under Health and Safety Code, Chapter 247. A person with a disclosable interest does not include a bank, savings and loan, savings bank, trust company, building and loan association, credit union, individual loan and thrift company, investment banking firm, or insurance company unless such entity participates in the management of the facility.

(23) [ (22) ] Personal care services--Assistance with meals, dressing, movement, bathing, or other personal needs or maintenance; the administration of medication or the assistance with or supervision of medication; or general supervision or oversight of the physical and mental well-being of a person who needs assistance to maintain a private and independent residence in the facility or who needs assistance to manage his personal life, regardless of whether a guardian has been appointed for the person.

(24) [ (23) ] Physician--A practitioner licensed by the Texas State Board of Medical Examiners.

(25) [ (24) ] Resident--Anyone accepted for care in the assisted living facility.

(26) [ (25) ] Respite--The provision by a facility of room, board, and care at the level ordinarily provided for permanent residents of the facility to a person for not more than 60 days for each stay in the facility.

(27) [ (26) ] Safety--Protection from injury or loss of life due to such conditions as fire, electrical hazard, unsafe building or site conditions, and the hazardous presence of toxic fumes and materials.

(28) [ (27) ] Service plan--A written description of the medical care or the supervision and nonmedical care needed by a person.

(29) [ (28) ] Short-term acute episode--An illness of less than 30 days duration.

(30) [ (29) ] Staff--Any employee of an assisted living facility.

(31) [ (30) ] Standards--The minimum licensing standards in Subchapter C of this chapter (relating to Standards for Licensure) intended to protect the health and safety of the residents.

(32) [ (31) ] Terminal condition--A medical diagnosis, certified by a physician, of an illness that [ which ] will result in death in six months or less.

(33) [ (32) ] Universal precautions--An approach to infection control in which blood, any body fluids visibly contaminated with blood, and all body fluids in situations where it is difficult or impossible to differentiate between body fluids are treated as if known to be infectious for HIV, hepatitis B, and other bloodborne pathogens.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 20, 2002.

TRD-200201752

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: May 5, 2002

For further information, please call: (512) 438-3734

Subchapter C. STANDARDS FOR LICENSURE

40 TAC §92.41

The amendment is proposed under the Health and Safety Code, Chapter 247, which authorizes DHS to license and regulate assisted living facilities.

The amendment implements the Health and Safety Code, §§247.001 - 247.068.

§92.41.Standards for Type A, Type B, and Type E Assisted Living Facilities.

(a) Employees.

(1) Manager. Each facility must designate, in writing, a manager to have authority over the operation.

(A) Qualifications. In small facilities, the manager must have proof of graduation from an accredited high school or certification of equivalency of graduation. In large facilities, a manager must have:

(i) - (ii) (No change.)

(iii) proof of graduation from an accredited high school or certification of equivalency of graduation and at least one year of experience working in management or [ of ] in health care industry management.

(B) Training in management of assisted living facilities. After August 1, 2000, a manager must have completed at least one educational course on the management of assisted living facilities, which must include information on the assisted living standards; resident characteristics (including dementia), resident assessment and skills working with residents; basic principles of management; food and nutrition services; federal laws, with an emphasis on the Americans with Disability Act's accessibility requirements; community resources; ethics, and financial management.

(i) The course must be at least 24 hours in length.

(I) (No change.)

(II) The 24-hour training requirement may not be met through in-services [ inservices ] at the facility, but may be met through structured, formalized classes, correspondence courses, training videos, distance learning programs, or off-site training courses. All training must be provided or produced by academic institutions, assisted living corporations, or recognized state or national organizations or associations. Subject matter that deals [ dealing ] with the internal affairs of an organization will not qualify for credit.

(III) (No change.)

(ii) - (iii) (No change.)

(iv) An assisted living manager who was employed by a licensed assisted living facility on August 1, 2000, is exempt from the training requirement. An assisted living manager who was employed by a licensed assisted living facility as the manager before [ prior to ] August 1, 2000, and changes employment to another licensed assisted living facility as the manager, with a break in employment of no longer than 30 days, is also exempt from the training requirement.

(C) - (E) (No change.)

(2) - (3) (No change.)

(4) Staff training. The facility must document that staff members are competent to provide personal care before [ prior to ] assuming responsibilities and have received the following training.

(A) All staff members must complete four hours of orientation before [ prior to ] assuming any job responsibilities. Training must cover, at a minimum, the following topics:

(i) - (vi) (No change.)

(B) - (C) (No change.)

(D) Facilities that employ licensed nurses, certified nurse aides, or certified medication aides must provide annual in-service [ inservice ] training, appropriate to their job responsibilities, from one or more of the following areas:

(i) - (vi) (No change.)

(b) (No change.)

(c) Resident assessment. Within 14 days of admission, a facility must assess an individual and develop an individual service plan for providing care, which is based on the comprehensive assessment. The comprehensive assessment must be completed by the appropriate staff and documented on a form developed by the facility. [ The service plan must be approved and signed by the resident or a person responsible for the resident's health care decisions. The facility must provide care according to the service plan. ]

(1) The comprehensive assessment must address the following:

(A) the location from which the resident was admitted;

(B) primary language;

(C) mental health history;

(D) indicators of depression, anxiety, sad mood;

(E) sleep-cycle issues;

(F) behavioral symptoms;

(G) psychosocial issues;

(H) Alzheimer's/dementia history;

(I) activities of daily living patterns (i.e., wakened to toilet all or most nights, bathed in morning/night, shower or bath);

(J) cycle of daily events (i.e., napped regularly, stayed up late at night, spent most of the time alone, watching TV, etc.);

(K) involvement patterns (i.e., daily contact with relatives, friends, usually attended religious services, involved in group activities);

(L) cognitive skills for daily decision-making (independent, modified independence, moderately impaired, severely impaired);

(M) communication (ability to communicate with others, communication devices);

(N) physical functioning (transfer status, ambulation status, toilet use, personal hygiene);

(O) continence status;

(P) nutritional status (weight changes, nutritional problems or approaches);

(Q) oral/dental status;

(R) activity pursuit patterns (involvement with activities, preferred activity settings, general activity preferences, interaction with family/friends);

(S) diagnoses;

(T) medications (administered, supervised, self-administers);

(U) health conditions and possible medication side effects;

(V) special treatments and procedures;

(W) hospital admissions within the past six months or since last assessment; and

(X) preventive health needs (i.e., blood pressure monitoring, hearing-vision assessment).

(2) [ (1) ] The service plan must be approved and signed by the resident or a person responsible for the resident's health care decisions. The facility must provide care according to the service plan. The service plan must be updated annually and upon a significant change in condition, based upon an assessment of the resident.

(3) [ (2) ] For respite clients, the facility may keep a service plan for six months from the date on which it is developed. During that period, the facility may admit the individual as frequently as needed.

(4) [ (3) ] Emergency admissions must be assessed and a service plan developed for them.

(d) Resident policies.

(1) Before [ Prior to ] admitting a resident, facility staff must explain and provide a copy of the disclosure statement to the resident, family, or responsible party. An assisted living facility that provides brain injury rehabilitation services must attach to its disclosure statement a specific statement that licensure as an assisted living facility does not indicate state review, approval, or endorsement of the facility's rehabilitative services. The facility must document receipt of the disclosure statement.

(2) - (4) (No change.)

(e) Admission policies.

(1) A facility must not admit or retain:

(A) residents whose needs cannot be met by the assisted living facility, or the necessary services secured by the resident. As part of the facility's general supervision and oversight of the physical and mental well-being of its residents, the facility remains responsible for all care provided at the facility. If the individual is appropriate for placement in an assisted living facility, then the decision that additional services are necessary and can be secured is [ shall be ] the responsibility of facility management with written concurrence of the resident, resident's attending physician, or legal representative. Regardless of the possibility of "aging in place" or securing additional services, the facility must meet all life safety code requirements based on each resident's evacuation capabilities , except as provided in subsection (f) of this section .

(B) an individual who requires [ requiring ] the services of facility employees who are licensed nurses on a daily or regular basis. Individuals with a terminal condition or who are experiencing a short-term, acute episode are excluded from this requirement.

(2) (No change.)

(3) A facility must share a copy of the facility disclosure statement, rate schedule, and individual resident service plan with outside resources that provide [ providing ] any additional services to a resident. Outside resources must provide facilities with a copy of their resident care plans and must document, at the facility, any services provided, on the day provided.

(4) Each resident must have a health examination by a physician performed within 30 days before [ prior to ] admission or 14 days after admission, unless a transferring hospital or facility has a physical examination in the medical record.

(5) The assisted living facility must secure at the time of admission of a resident the following identifying information:

(A) full name of resident;

(B) social security number;

(C) usual residence (where resident lived before admission);

(D) sex;

(E) marital status;

(F) date of birth;

(G) place of birth;

(H) usual occupation (during most of working life);

(I) family, other persons named by the resident, and physician for emergency notification;

(J) pharmacy preference; and

(K) Medicaid/Medicare number, if available.

(f) Inappropriate placement in Type A or Type B facilities.

(1) A facility is not required to move a resident who a Texas Department of Human Services (DHS) surveyor determines is inappropriately placed if the facility submits the following to DHS not later than the 10th business day after the date the facility is informed in writing of the specific basis of the surveyor's determination:

(A) a written assessment from a physician that states the resident is appropriately placed. The assessment must address the resident's medical conditions and related nursing needs, ambulatory and transfer abilities, and mental status;

(B) a written statement from the resident that he wishes to remain in the facility. If the resident lacks capacity to give a written statement, a family member or guardian may give a statement that he wishes the resident to remain in the facility;

(C) a statement from the facility that the facility wishes the resident to remain in the facility, a copy of a comprehensive assessment of the resident, completed within the last 60 days, that addresses the areas required by subsection (c) of this section, and the service plan that addresses all aspects of the resident's care, particularly those areas identified by DHS. The facility must address the resident's medical condition(s) and related nursing needs, hospitalizations within the last 60 days, any significant change in condition in the last 60 days, specific staffing needs, and services that are provided by an outside provider.

(2) A facility that does not meet all requirements for the evacuation of a designated resident must apply for a waiver from DHS of all applicable requirements for evacuation not met with respect to the resident. Documentation must be submitted not later than the 10th business day after the date the facility is informed in writing of the specific basis of the surveyor's determination.

(A) Documentation. When an evacuation waiver is requested, the following documentation must be submitted to DHS in addition to the documentation required in paragraph (1)(A) - (C) of this subsection:

(i) a detailed plan that explains how the facility will meet the evacuation needs of the resident. The plan should include, for example,

(I) the specific staff positions that will be on duty to assist with evacuation and their shift times;

(II) specific staff positions that will be on duty and awake at night; and

(III) specific staff training that relates to resident evacuation;

(ii) a copy of the facility floor plan that indicates the specific resident's room;

(iii) a copy of the facility's emergency evacuation plan;

(iv) copies of the facility fire drills for the last 12-month period;

(v) a copy of the DHS notice form to the local fire marshal, or state fire marshal, if applicable (authority having jurisdiction), advising that the facility is requesting a waiver of the change of capability of resident evacuation. The DHS form must contain the signature of the fire authority having jurisdiction;

(vi) a copy of the DHS notice form to the local fire suppression authority advising that the facility is requesting a waiver of the change of capability of resident evacuation. The DHS form must contain the signature of the fire suppression authority having jurisdiction; and

(vii) any other information that relates to the required fire safety features of the facility that will ensure the evacuation capability of any resident.

(B) Criteria. Each facility has specific characteristics that vary from other facilities, which prevents the specification of a universal emergency procedure. A facility must meet the following criteria to receive a waiver from DHS:

(i) The facility must have an emergency plan to meet the evacuation needs of the resident. The plan must ensure that:

(I) staff is adequately trained;

(II) a sufficient number of staff is on all shifts to move all residents to a place of safety;

(III) residents will be moved to appropriate locations, given health and safety issues;

(IV) inclusion of all possible locations of the fire origin area is included in the emergency plan;

(V) the emergency plan addresses all possible locations of fire origin areas and the necessity for full evacuation of the building;

(VI) the fire alarm signal is adequate;

(VII) there is an effective method for warning residents and staff during a malfunction of the building fire alarm system;

(VIII) the plan is effective for communicating the actual location of the fire to staff; and

(IX) the plan satisfies any other safety concerns that could have an effect on the residents' safety in the event of a fire.

(ii) The facility must show that the emergency plan will not have an adverse effect on other residents of the facility who have waivers of evacuation and other residents of the facility who have special needs that require staff assistance. In evaluating whether the emergency plan will have an adverse effect on other residents, DHS may also review the service plans provided by the facility.

(C) Determination. DHS will review the documentation submitted under this subsection to determine whether to grant or deny a request for a waiver under this section. DHS will notify the facility in writing of its determination within 10 working days from the date the request is received in the DHS regional office.

(D) Plan of Action. Upon notification that DHS has approved a waiver of evacuation, the facility must immediately initiate all provisions of the proposed plan of action. If the facility does not follow the proper plan of action, and there are health and safety concerns, DHS may cite the facility for immediate threat to the health or safety of a resident.

(E) Waiver Renewal. A waiver of evacuation from DHS will be reviewed by DHS during the facility's annual renewal licensing inspection.

(3) If a DHS surveyor determines that a resident is inappropriately placed at a facility and the facility either agrees with the determination or fails to obtain the written statements required in this subsection, the facility must discharge the resident.

(A) The resident is allowed 30 days after the date of discharge to move from the facility.

(B) A discharge required under this subsection must be made notwithstanding:

(i) any other law, including any law relating to the rights of residents and any obligations imposed under the Property Code; and

(ii) the terms of any contract.

(C) DHS may not assess an administrative penalty against the facility because of the inappropriate placement.

(g) [ (f) ] Advance directives.

(1) The facility must maintain written policies regarding the implementation of advance directives. The policies must include a clear and precise statement of any procedure the facility is unwilling or unable to provide or withhold in accordance with an advance directive.

(2) The facility must provide written notice of these policies to residents at the time they are admitted to receive services from the facility.

(A) If, at the time notice is to be provided, the resident is incompetent or otherwise incapacitated and unable to receive the notice, the facility must provide the written notice, in the following order of preference, to:

(i) the resident's legal guardian;

(ii) a person responsible for the resident's health care decisions;

(iii) the resident's spouse;

(iv) the resident's adult child;

(v) the resident's parents; or

(vi) the person admitting the resident.

(B) If the facility is unable, after diligent search, to locate an individual listed under subparagraph (A) of this paragraph, the facility is not required to give notice.

(3) If a resident who was incompetent or otherwise incapacitated and unable to receive notice regarding the facility's advance directives policies later becomes able to receive the notice, the facility must provide the written notice at the time the resident becomes able to receive the notice.

(4) Failure to inform the resident of facility policies regarding the implementation of advance directives will result in an administrative penalty of $500.

(A) Facilities will receive written notice of the recommendation for an administrative penalty.

(B) Within 20 days after the date on which written notice is sent to a facility, the facility must give written consent to the penalty or make written request for a hearing to DHS [ the Texas Department of Human Services (DHS) ].

(C) Hearings will be held in accordance with DHS's formal hearing procedures in Chapter 79 of this title (relating to Legal Services).

(h) [ (g) ] Resident records.

(1) Records that pertain [ pertaining ] to residents must be treated as confidential and properly safeguarded from unauthorized use, loss, or destruction.

(2) Resident records must contain:

(A) information contained in the facility's standard and customary admission form;

(B) a record of the resident's assessments;

(C) the resident's service plan;

(D) physician's orders, if any;

(E) any advance directives;

(F) documentation of a health examination by a physician performed within 30 days before [ prior to ] admission or 14 days after admission, unless a transferring hospital or facility has a physical examination in the medical record. Christian Scientists are excluded from this requirement; and

(G) documentation by health care professionals of any services delivered in accordance with the licensing, certification, or other regulatory standards applicable to the health care professional under law.

(3) Records must be available to residents, their legal representatives, and DHS staff.

(i) [ (h) ] Personnel records. The facility must keep personnel records on all staff in a central location.

(j) [ (i) ] Medications.

(1) Administration. Medications must be administered according to physician's orders.

(A) Residents who choose not to or cannot [ can not ] self-administer their medications must have their medications administered by a person who:

(i) holds a current license under state law that [ which ] authorizes the licensee to administer medication; or

(ii) holds a current medication aide permit and acts under the authority of a person who holds a current nursing license under state law that [ which ] authorizes the licensee to administer medication. A medication aide must function under the direct supervision of a licensed nurse on duty or on call by the facility.

(iii) is an employee of the facility to whom the administration of medication has been delegated by a registered nurse, who has trained them to administer medications or verified their training. The delegation of the administration of medication is governed by 22 TAC Chapter 218 ( concerning Delegation of Selected Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel ), which implements the Nurse Practice Act.

(B) All resident's prescribed medication must [ shall ] be dispensed through a pharmacy or by the resident's treating physician or dentist.

(C) Physician sample medications may be given to a resident by the facility provided the medication has specific dosage instructions for the individual resident.

(D) Each resident's medications must be listed on an individual resident's medication profile record. The recorded information obtained from the prescription label must include, but is not limited to, the medication

(i) name ; [ , ]

(ii) strength ; [ , ]

(iii) dosage ; [ , ]

(iv) amount received ; [ , ]

(v) directions for use ; [ , ]

(vi) route of administration ; [ , ]

(vii) prescription number ; [ , ]

(viii) pharmacy name ; [ , ] and

(ix) the date each medication was issued by the pharmacy.

(2) Supervision. Supervision of a resident's medication regimen by facility staff may be provided to residents who are incapable of self-administering without assistance to include and limited to:

(A) reminders to take their medications at the prescribed time;

(B) opening containers or packages and replacing lids;

(C) pouring prescribed dosage according to medication profile record;

(D) returning medications to the proper locked areas;

(E) obtaining medications from a pharmacy; and

(F) listing on an [ a ] individual resident's medication profile record the medication

(i) name ; [ , ]

(ii) strength ; [ , ]

(iii) dosage ; [ , ]

(iv) amount received ; [ , ]

(v) directions for use ; [ , ]

(vi) route of administration ; [ , ]

(vii) prescription number ; [ , ]

(viii) pharmacy name ; [ , ] and

(ix) the date each medication was issued by the pharmacy.

(3) Self-administration.

(A) Residents who self-administer their own medications and keep them locked in their room must [ shall ] be counseled at least once a month by facility staff to ascertain if the residents continue to be capable of self-administering their medications/treatments and if security of medications can continue to be maintained. The facility must keep a [ A ] written record of counseling [ shall be kept by the facility ].

(B) Residents who choose to keep their medications locked in the central medication storage area may be permitted entrance or access to the area for the purpose of self-administering their own medication/treatment regimen. A facility staff member must [ shall ] remain in or at the storage area the entire time any resident is present.

(4) General.

(A) Facility staff will immediately report to the resident's physician and responsible party any unusual reactions to medications or treatments.

(B) When the facility supervises or administers the medications, a written record must [ shall ] be kept when the resident does not receive or take his/her medications/treatments as prescribed. The documentation must [ shall ] include the date and time the dose should have been taken, and the name and strength of medication missed; however, the recording of missed doses of medication does not apply when the resident is away from the assisted living facility.

(5) Storage.

(A) The facility must provide a locked area for all medications. Examples of areas include, but are not limited to:

(i) central storage area;

(ii) medication cart; and

(iii) resident room.

(B) Each resident's medication must be stored separately from other resident's medications within the storage area.

(C) A refrigerator must have a designated and locked storage area for medications that require [ requiring ] refrigeration, unless it is inside a locked medication room.

(D) Poisonous substances and medications labeled for "external use only" must be stored separately within the locked medication area.

(E) If facilities store controlled drugs, facility policies and procedures must address the prevention of the diversion of the controlled drugs.

(6) Disposal.

(A) Medications no longer being used by the resident for the following reasons are to be kept separate from current medications and are to be disposed of by a registered pharmacist licensed in the State of Texas:

(i) medications discontinued by order of the physician;

(ii) medications that [ which ] remain after a resident is deceased; or

(iii) medications that [ which ] have passed the expiration date.

(B) Needles and hypodermic syringes with needles attached must be disposed as required by 25 TAC §§1.131 - 1.137 (Definition, Treatment, and Disposal of Special Waste from Health Care-Related [ Care Related ] Facilities).

(C) Medications kept in a central storage area are released to discharged residents when a receipt has been signed by the resident or responsible party.

(k) [ (j) ] Accident, injury, or acute illness.

(1) In the event of accident or injury that requires [ requiring ] emergency medical, dental or nursing care, or in the event of apparent death, the assisted living facility will:

(A) make arrangements for emergency care and/or transfer to an appropriate place for treatment, such as a physician's office, clinic, or hospital;

(B) immediately notify the resident's physician and next of kin, responsible party, or agency who placed the resident in the facility; and

(C) describe and document the injury, accident, or illness on a separate report. The report must contain a statement of final disposition and be maintained on file.

(2) The facility must stock and maintain in a single location first aid supplies to treat burns, cuts, and poisoning.

(3) Residents who need the services of professional nursing or medical personnel due to a temporary illness or injury may have those services delivered by persons qualified to deliver the necessary service.

(l) [ (k) ] Resident finances. The assisted living facility must keep a simple financial record on all charges billed to the resident for care and these records must be available to DHS. If the resident entrusts the handling of any personal finances to the assisted living facility, a simple financial record must be maintained to document accountability for receipts and expenditures, and these records must be available to DHS. Receipts for payments from residents or family members must be issued upon request.

(m) [ (l) ] Food and nutrition services.

(1) A person designated by the facility is responsible for the total food service of the facility.

(2) At least three meals or their equivalent must be served daily, at regular times, with no more than a 16-hour span between a substantial evening meal and breakfast the following morning. All exceptions must be specifically approved by DHS.

(3) Menus must be planned one week in advance and must be followed. Variations from the posted menus must be documented. Menus must be prepared to provide a balanced and nutritious diet, such as that recommended by the National Food and Nutrition Board. Food must be palatable and varied. Records of menus as served must be filed and maintained for 30 days after the date of serving.

(4) Therapeutic diets as ordered by the resident's physician must be provided according to the service plan. Therapeutic diets that [ which ] cannot customarily be prepared by a lay person must be calculated by a qualified dietician. Therapeutic diets that [ which ] can customarily be prepared by a person in a family setting may be served by the assisted living facility.

(5) Supplies of staple foods for a minimum of a four-day period and perishable foods for a minimum of a one-day period must be maintained on the premises.

(6) Food must be obtained from sources that comply with all laws relating to food and food labeling. If food, subject to spoilage, is removed from its original container, it must be kept sealed, and labeled. Food subject to spoilage must also be dated.

(7) Plastic containers with tight fitting lids are acceptable for storage of staple foods in the pantry.

(8) Potentially hazardous food, such as meat and milk products, must be stored at 45 degrees Fahrenheit or below. Hot food must be kept at 140 degrees Fahrenheit or above during preparation and serving. Food that [ which ] is reheated must be heated to a minimum of 165 degrees Fahrenheit.

(9) Freezers must be kept at a temperature of 0 degrees Fahrenheit or below and refrigerators must be 41 degrees Fahrenheit or below. Thermometers must be placed in the warmest area of the refrigerator and freezer to assure proper temperature.

(10) Food must be prepared and served with the least possible manual contact, with suitable utensils, and on surfaces that [ prior to use ] have been cleaned, rinsed, and sanitized before use to prevent cross-contamination.

(11) Facilities must prepare food in accordance with established food preparation practices and safety techniques.

(12) A food service employee, while infected with a communicable disease that can be transmitted by foods, or who is a carrier of organisms that cause such a disease or while afflicted with a boil, an infected wound, or an acute respiratory infection, must not work in the food service area in any capacity in which there is a likelihood of such person contaminating food or food-contact surfaces with pathogenic organisms or transmitting disease to other persons.

(13) Effective hair restraints must be worn to prevent the contamination of food.

(14) Tobacco products must not be used in the food preparation and service areas.

(15) Kitchen employees must wash their hands before returning to work after using the lavatory.

(16) Dishwashing chemicals used in the kitchen may be stored in plastic containers if they are the original containers in which the manufacturer packaged the chemicals.

(17) Sanitary dishwashing procedures and techniques must be followed.

(18) Facilities that house [ housing ] 17 or more residents must comply with 25 TAC §§229.161 - 229.171 and §§229.173 - 229.175 (Texas Food Establishment rules) and local health ordinances or requirements must be observed in the storage, preparation, and distribution of food; in the cleaning of dishes, equipment, and work area; and in the storage and disposal of waste.

(n) [ (m) ] Infection control.

(1) Each facility must establish and maintain an infection control policy and procedure designated to provide a safe, sanitary, and comfortable environment and to help prevent the development and transmission of disease and infection.

(2) The facility must comply with departmental rules regarding special waste in 25 TAC §§1.131 - 1.137 [ (Definition, Treatment, and Disposition of Special Waste from Health Care Related Facilities) ].

(3) The name of any resident of a facility with a reportable disease as specified in 25 TAC §§97.1 - 97.13 (Control of Communicable Diseases) must [ shall ] be reported immediately to the city health officer, county health officer, or health unit director having jurisdiction, and appropriate infection control procedures must [ shall ] be implemented as directed by the local health authority.

(4) The facility must have written policies for the control of communicable disease in employees and residents, which includes tuberculosis (TB) screening and provision of a safe and sanitary environment for residents and employees.

(A) If employees contract a communicable disease that is transmissible to residents through food handling or direct resident care, the employee must be excluded from providing these services as long as a period of communicability is present.

(B) The facility must maintain evidence of compliance with local and/or state health codes or ordinances regarding employee and resident health status.

(C) The facility must screen all employees for TB [ tuberculosis ] within two weeks of employment and annually, according to Center for Disease Control (CDC) screening guidelines. All persons who provide [ providing ] services under an outside resource contract must, upon request of the facility, provide evidence of compliance with this requirement.

(D) All residents should be screened upon admission and after exposure to TB [ tuberculosis ], in accordance with the attending physician's recommendations and CDC guidelines.

(5) Personnel must handle, store, process, and transport linens so as to prevent the spread of infection.

(6) Universal precautions must be used in the care of all residents.

(o) [ (n) ] Access to residents. The facility must allow an employee of the Texas Department of Mental Health and Mental Retardation (TDMHMR) or an employee of a local mental health and mental retardation authority into the facility as necessary to provide services to a resident.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 20, 2002.

TRD-200201753

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Earliest possible date of adoption: May 5, 2002

For further information, please call: (512) 438-3734

Part 6. TEXAS COMMISSION FOR THE DEAF AND HARD OF HEARING

Chapter 183. BOARD FOR EVALUATION OF INTERPRETERS AND INTERPRETER CERTIFICATION

Subchapter G. CERTIFIED COURT INTERPRETERS

40 TAC §183.704

The Texas Commission for the Deaf and Hard of Hearing proposes new §183.704. The new section is proposed to define the list Communication Access Real-time Transcription (CART) providers and how it will be maintained.

David W. Myers, Executive Director, has determined that for each year of the first five years the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section.

Mr. Myers has also determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of this new section will be improved information to access CART providers eligible to provide services in the courtroom. There will be no effect on small businesses. There is no anticipated economic hardship to persons required to comply with the section as proposed.

Comments on this proposed section may be submitted to Randi Turner, Texas Commission for the Deaf and Hard of Hearing, P.O. Box 12904, Austin, Texas 78711-2904.

The new section is proposed under the Human Resources Code, §81.006(b) (3), which provides the Texas Commission for the Deaf and Hard of Hearing with the authority to adopt rules for administration and programs.

No other statute, code or article is affected by this proposed new section.

§183.704.Court Certification Equivalency.

An interpreter who has a valid Special Certification: Legal (SC:L) from the Registry of Interpreters for the Deaf (RID) may apply and receive court certification upon submission of application and required fee.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 25, 2002.

TRD-200201835

David Myers

Executive Director

Texas Commission for the Deaf and Hard of Hearing

Earliest possible date of adoption: May 5, 2002

For further information, please call: (512) 407-3250

Part 19. TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES

Chapter 702. GENERAL ADMINISTRATION

Subchapter I. OMBUDSMAN SERVICES

The Texas Department of Protective and Regulatory Services (PRS) proposes new ombudsman services rules, consisting of §§702.801, 702.811, 702.813, 702.815, 702.817, 702.819, 702.821, 702.823, 702.825, 702.841, 702.843, 702.845, 702.847, and 702.849, in Chapter 702, General Administration. The new sections are proposed in new Subchapter I, Ombudsman Services. The purpose of the new sections is to describe the services of the ombudsman office, the complaint process, the reporting requirements, and the ombudsman review process. The new sections are written in question and answer format, and use other plain language techniques.

Mary Fields, Budget and Federal Funds Director, has determined that for the first five-year period the proposed sections will be in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections.

Ms. Fields also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be that the rules will be clearer and easier to understand. There will be no effect on large, small, or micro-businesses because the sections do not impose any new requirements on businesses. There is no anticipated economic cost to persons who are required to comply with the proposed sections.

Questions about the content of the proposal may be directed to Betty Hable at (512) 834-3739 in PRS's Ombudsman Office. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-196, Texas Department of Protective and Regulatory Services E-611, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register .

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

1. OMBUDSMAN OFFICE

40 TAC §702.801

The new section is proposed under the Human Resources Code, §40.029, which authorizes the department to adopt rules that facilitate the implementation of department programs.

The new section implements the Human Resources Code, §40.029.

§702.801.What is the Ombudsman Office?

(a) The Ombudsman Office of PRS is a neutral party that reviews complaints regarding case-specific activities of the PRS program areas to determine if PRS's policies and procedures were followed. The complaint process is described in Division 2 of this subchapter (relating to Ombudsman Complaint Process).

(b) The Ombudsman Office also conducts reviews of case-specific findings that designate an individual as an alleged perpetrator of abuse, neglect, or exploitation. The review process is described in Division 3 of this subchapter (relating to Ombudsman Office Review of Alleged Perpetrator Designation).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 22, 2002.

TRD-200201803

C. Ed Davis

Deputy Director, Legal Services

Texas Department of Protective and Regulatory Services

Proposed date of adoption: May 24, 2002

For further information, please call: (512) 438-3437

2. OMBUDSMAN COMPLAINT PROCESS

40 TAC §§702.811, 702.813, 702.815, 702.817, 702.819, 702.821, 702.823, 702.825

The new sections are proposed under the Human Resources Code, §40.029, which authorizes the department to adopt rules that facilitate the implementation of department programs.

The new sections implement the Human Resources Code, §40.029.

§702.811.How can a member of the public find out about the complaint process?

PRS publicizes the availability of the complaint process and the mailing address and telephone number to which complaints should be sent through:

(1) signs displayed in PRS offices;

(2) Ombudsman Office brochures;

(3) the PRS public web site. The address is http://www.tdprs.state.tx.us; and

(4) other methods determined by PRS.

§702.813.Who may file complaints?

The Ombudsman Office complaint process is available to:

(1) consumers, service recipients, and persons or entities regulated by PRS;

(2) other state agencies;

(3) state and federal legislative and executive offices; and

(4) PRS employees, if the complaint alleges a violation of PRS policy in a case-specific situation.

§702.815.Who may not file complaints with the Ombudsman Office?

The complaint process is not available:

(1) to individuals who have been identified as alleged perpetrators of abuse, neglect, or exploitation. Those individuals must use procedures specified in Division 3 of this subchapter (relating to Ombudsman Office Review of Alleged Perpetrator Designation), unless the complaint relates to issues not related to the case disposition; or

(2) for complaints the Ombudsman Office has reviewed multiple times and has made all reasonable efforts within agency policy and procedures to resolve.

§702.817.How does a complainant file a complaint?

Direct case-specific complaints concerning PRS to the Ombudsman Office, Texas Department of Protective and Regulatory Services, Mail Code Y-946, P.O. Box 149030, Austin, Texas 78714-9030, or call 1-800-720-7777, or send a facsimile to the Ombudsman Office at 512-834-3782, or contact the Ombudsman Office using the PRS public web site. The address is: http://www.tdprs.state.tx.us.

§702.819.Must a complainant go through another agency complaint process before contacting the Ombudsman Office?

No. Although PRS encourages complaint resolution at the local level, a complainant may file a complaint with the Ombudsman Office at any time, without going through another agency process for complaint resolution.

§702.821.How does a complainant know if the Ombudsman Office received the complaint?

(a) The Ombudsman Office acknowledges receipt of each complaint and informs the complainant whether the complaint meets the criteria for an Ombudsman Office complaint.

(b) A complaint may be accepted initially and later refused if subsequent investigation or developments determine that the complaint is no longer appropriate for the Ombudsman Office.

§702.823.How does the complaint process work?

(a) The Ombudsman Office reviews complaints to determine whether PRS's policies and procedures were followed. When the subject of the complaint is an issue in ongoing or forthcoming litigation, or is the subject of a law enforcement investigation or criminal prosecution, the Ombudsman Office does not interfere with the ongoing litigation or law enforcement investigation.

(b) The Ombudsman Office notifies the complainant of the Ombudsman findings, within the limits of confidentiality required by the Texas Open Records Act and the Texas Family Code. If the complaint is in writing and relates to a permit holder or entity regulated by PRS or a service delivered by PRS, the Ombudsman Office notifies the parties to the complaint on a quarterly basis of the status of the complaint, unless the notice will jeopardize an undercover investigation.

(c) If the Ombudsman Office determines that PRS's policies and procedures were not followed, the Ombudsman Office notifies appropriate agency staff so appropriate corrective measures can be taken.

(d) The Ombudsman Office keeps a file for each complaint concerning a PRS permit holder, entity regulated by PRS, and PRS service. The electronic file is maintained continuously. Paper copies of the records are archived annually and purged every five years.

§702.825.What are the reporting requirements of the Ombudsman Office?

The Ombudsman Office prepares and delivers a report annually to the PRS Board and executive director regarding the number, type, and resolution of complaints made against PRS.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 22, 2002.

TRD-200201804

C. Ed Davis

Deputy Director, Legal Services

Texas Department of Protective and Regulatory Services

Proposed date of adoption: May 24, 2002

For further information, please call: (512) 438-3437

3. OMBUDSMAN OFFICE REVIEW OF ALLEGED PERPETRATOR DESIGNATION

40 TAC §§702.841, 702.843, 702.845, 702.847, 702.849

The new sections are proposed under the Human Resources Code, §40.029, which authorizes the department to adopt rules that facilitate the implementation of department programs.

The new sections implement the Human Resources Code, §40.029.

§702.841.Who can request an Ombudsman Office Review of alleged perpetrator designation?

(a) Anyone who has been determined to be a perpetrator of abuse, neglect, or exploitation as a result of an investigation performed by PRS can request an Ombudsman Office Review. The individual must use the Administrative Review of Investigative Findings process offered by the specific PRS program that conducted the investigation before he is eligible for the Ombudsman Office Review.

(b) An Ombudsman Office Review is not available:

(1) for individuals who have a court finding that is consistent with the specific allegation for which he is requesting the Review, or;

(2) if PRS's Legal Division determines that there is another court finding legally sufficient for denying the Review.

§702.843.Are there timeframes for requesting the Ombudsman Office Review?

Yes. Except for good cause determined by the Ombudsman Office director, an individual must request an Ombudsman Office Review in writing within 30 days after the date the Administrative Review of Investigative Findings (ARIF) notification letter was sent by the PRS program that conducted the ARIF. The Review request must be sent to the Ombudsman Office, Texas Department of Protective and Regulatory Services, Mail Code Y-946, P.O. Box 149030, Austin, Texas 78714-9030. The Review request may also be sent by facsimile to the Ombudsman Office at 512-834-3782, or by contacting the Ombudsman Office using the PRS public web site. The address is: http://www.tdprs.state.tx.us.

§702.845.How does a requester know if the Ombudsman Office received the request?

The Ombudsman Office acknowledges receipt of the request in writing within 30 days from the date the request is received.

§702.847.How does the Ombudsman Office Review work?

(a) The Ombudsman Office reviews:

(1) the program case record;

(2) the Administrative Review of Investigation Findings documents; and

(3) additional information that was available during the original investigation and either was considered or should have been considered by staff performing the investigation. Only in extraordinary circumstances, at the discretion of the Ombudsman Office director, will new information be considered in the Ombudsman Office Review.

(b) The Ombudsman Office determines whether an interview with the requester is needed to facilitate the Review process.

§702.849.What happens when the Ombudsman Office completes the Review?

After completing the Review, the Ombudsman Office prepares written findings and recommendations.

(1) If the Ombudsman Office findings sustain the Administrative Review of Investigation Findings (ARIF), the Ombudsman Office director notifies the requester of the final disposition of the case.

(2) If the Ombudsman Office does not concur with the ARIF, the ARIF documents and Ombudsman Office Review materials are forwarded to the program deputy director or his designee for consideration. The Ombudsman Office director and staff meet with the program deputy director or his designee to examine the evidence to reach concurrence on the case finding.

(A) If concurrence is reached, the Ombudsman Office forwards a notification letter to the requester advising him of the findings.

(B) If the Ombudsman Office and the program deputy director do not agree, the case is forwarded to PRS's general counsel, who reviews the case and makes recommendations to PRS's executive director for final disposition. The executive director or his designee then notifies the requester of the final case disposition.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 22, 2002.

TRD-200201805

C. Ed Davis

Deputy Director, Legal Services

Texas Department of Protective and Regulatory Services

Proposed date of adoption: May 24, 2002

For further information, please call: (512) 438-3437

Subchapter K. CIVIL RIGHTS

40 TAC §702.1001

The Texas Department of Protective and Regulatory Services (PRS) proposes new §702.1001, concerning how does PRS ensure nondiscrimination in employment practices, in its General Administration chapter. The new section is proposed in new Subchapter K, Civil Rights. The purpose of the new section is to move the current civil rights rules into Chapter 702, which provides information that pertains to the general administration of PRS. The new section also brings the rule into compliance with federal and state nondiscrimination laws.

Mary Fields, Budget and Federal Funds Director, has determined that for the first five-year period the proposed section will be in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section.

Ms. Fields also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be that the rewritten rule will be clearer and easier to understand. There will be no effect on large, small, or micro-businesses because no new requirements are being implemented. There is no anticipated economic cost to persons who are required to comply with the proposed section.

Questions about the content of the proposal may be directed to John Adamo at (512) 719-6153 in PRS's Human Resources Services. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-188, Texas Department of Protective and Regulatory Services E-611, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register .

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

The new section is proposed under the Human Resources Code, §40.029, which authorizes the department to adopt rules that facilitate the implementation of departmental programs.

The new section implements the Human Resources Code, §40.029.

§702.1001.How does PRS ensure nondiscrimination in employment practices?

PRS maintains a central office responsible for ensuring compliance with federal and state laws pertaining to nondiscrimination in employment practices and in the provision of services to the public. PRS maintains policy and procedure to ensure said compliance in formats accessible to both employees and the general public.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 22, 2002.

TRD-200201801

C. Ed Davis

Deputy Director, Legal Services

Texas Department of Protective and Regulatory Services

Proposed date of adoption: May 24, 2002

For further information, please call: (512) 438-3437

Chapter 738. CIVIL RIGHTS

The Texas Department of Protective and Regulatory Services (PRS) proposes the repeal of Chapter 738, consisting of §§738.1-738.12, 738.2107, 738.3001-738.3004, 738.3101, 738.3201-738.3204, 738.3301-738.3311, 738.4001, 738.4005, 738.4006, 738.4008, 738.4010- 738.4012, and 738.4101-738.4115, in its Civil Rights chapter. As part of the rule review required by the Texas Government Code, §2001.039 and the General Appropriations Act of 1997, Article IX, §167, PRS is proposing to delete the rules in this chapter. The chapter contains rules administratively transferred from the Texas Department of Human Services in 1992. The rules contain obsolete references and policy that is better suited to internal policy and procedure than to rules. Also in this issue of the Texas Register , PRS is proposing new civil rights rules in Chapter 702, General Administration.

Mary Fields, Budget and Federal Funds Director, has determined that for the first five-year period the proposed sections will be in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections.

Ms. Fields also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be that the rewritten rules will be clearer and easier to understand. There will be no effect on large, small, or micro- businesses because no new requirements are being implemented. There is no anticipated economic cost to persons who are required to comply with the proposed sections.

Questions about the content of the proposal may be directed to John Adamo at (512) 719- 6153 in PRS's Human Resources Services. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-188, Texas Department of Protective and Regulatory Services E-611, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register .

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

Subchapter A. CIVIL RIGHTS ADMINISTRATION AND STATEMENT OF COMPLIANCE

40 TAC §§738.1 - 738.12

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Protective and Regulatory Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeals are proposed under the Human Resources Code, §40.029, which authorizes the department to adopt rules that facilitate the implementation of departmental programs.

The repeals implement the Human Resources Code, §40.029.

§738.1.Documentation.

§738.2.Methods of Recording.

§738.3.Office Accessibility.

§738.4.Affirmative Action.

§738.5.Awareness of Special Needs.

§738.6.Cultural Awareness Training.

§738.7.Staff Education.

§738.8.Public Information.

§738.9.Statistical Data.

§738.10.Administrative Responsibilities & Referral Procedures.

§738.11.Complaint Procedure.

§738.12.Compliance by Contractors.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 22, 2002.

TRD-200201793

C. Ed Davis

Deputy Director, Legal Services

Texas Department of Protective and Regulatory Services

Proposed date of adoption: May 24, 2002

For further information, please call: (512) 438-3437

Subchapter V. USE OF DEPARTMENT FACILITIES BY PUBLIC EMPLOYEES ORGANIZATIONS

40 TAC §738.2107

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Protective and Regulatory Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed under the Human Resources Code, §40.029, which authorizes the department to adopt rules that facilitate the implementation of departmental programs.

The repeal implements the Human Resources Code, §40.029.

§738.2107.Use of Department Facilities by a Public Employee Organization or Association.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 22, 2002.

TRD-200201794

C. Ed Davis

Deputy Director, Legal Services

Texas Department of Protective and Regulatory Services

Proposed date of adoption: May 24, 2002

For further information, please call: (512) 438-3437

Subchapter EE. LEGAL BASIS

40 TAC §§738.3001 - 738.3004

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Protective and Regulatory Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeals are proposed under the Human Resources Code, §40.029, which authorizes the department to adopt rules that facilitate the implementation of departmental programs.

The repeals implement the Human Resources Code, §40.029.

§738.3001.Applicability of Civil Rights Law.

§738.3002.Discriminatory Practices.

§738.3003.Administrative Practices.

§738.3004.Handicapped Individuals.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 22, 2002.

TRD-200201795

C. Ed Davis

Deputy Director, Legal Services

Texas Department of Protective and Regulatory Services

Proposed date of adoption: May 24, 2002

For further information, please call: (512) 438-3437

Subchapter FF. COMPLIANCE BY CONTRACTED AGENTS

40 TAC §738.3101

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Protective and Regulatory Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed under the Human Resources Code, §40.029, which authorizes the department to adopt rules that facilitate the implementation of departmental programs.

The repeal implements the Human Resources Code, §40.029.

§738.3101.Agreements and Contracts.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 22, 2002.

TRD-200201796

C. Ed Davis

Deputy Director, Legal Services

Texas Department of Protective and Regulatory Services

Proposed date of adoption: May 24, 2002

For further information, please call: (512) 438-3437

Subchapter GG. DISSEMINATION OF INFORMATION AND TRAINING

40 TAC §§738.3201 - 738.3204

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Protective and Regulatory Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeals are proposed under the Human Resources Code, §40.029, which authorizes the department to adopt rules that facilitate the implementation of departmental programs.

The repeals implement the Human Resources Code, §40.029.

§738.3201.Information Given Clients and Public.

§738.3202.State and Local Staff.

§738.3203.Department Policies.

§738.3204.Title VI and Cultural Awareness Training.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 22, 2002.

TRD-200201797

C. Ed Davis

Deputy Director, Legal Services

Texas Department of Protective and Regulatory Service

Proposed date of adoption: May 24, 2002

For further information, please call: (512) 438-3437

Subchapter HH. COMPLAINTS

40 TAC §§738.3301 - 738.3311

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Protective and Regulatory Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeals are proposed under the Human Resources Code, §40.029, which authorizes the department to adopt rules that facilitate the implementation of departmental programs.

The repeals implement the Human Resources Code, §40.029.

§738.3301.Definition.

§738.3302.Who May File Complaints.

§738.3303.Procedure for Filing.

§738.3304.Handling Complaints.

§738.3305.Acknowledgment of Complaint and Confidentiality.

§738.3306.Records.

§738.3307.Investigation Procedure.

§738.3308.Report of Investigation of Civil Rights Complaint.

§738.3309.Complaints Review.

§738.3310.Action Taken.

§738.3311.Review by Other Staff.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 22, 2002.

TRD-200201798

C. Ed Davis

Deputy Director, Legal Services

Texas Department of Protective and Regulatory Services

Proposed date of adoption: May 24, 2002

For further information, please call: (512) 438-3437

Subchapter OO. ADMINISTRATIVE FRAUD DISQUALIFICATION HEARINGS

40 TAC §§738.4001, 738.4005, 738.4006, 738.4008, 738.4010 - 738.4012

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Protective and Regulatory Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeals are proposed under the Human Resources Code, §40.029, which authorizes the department to adopt rules that facilitate the implementation of departmental programs.

The repeals implement the Human Resources Code, §40.029.

§738.4001.Introduction and Legal Basis.

§738.4005.Designation of Hearing Officer.

§738.4006.Disqualification of Hearing Officer.

§738.4008.Hearing Officer's Powers and Duties.

§738.4010.Scheduling the Hearing.

§738.4011.Advance Notice of Hearing.

§738.4012.Participation While Hearing Is Pending.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 22, 2002.

TRD-200201799

C. Ed Davis

Deputy Director, Legal Services

Texas Department of Protective and Regulatory Services

Proposed date of adoption: May 24, 2002

For further information, please call: (512) 438-3437

Subchapter PP. HEARING PROCEDURES

40 TAC §§738.4101 - 738.4115

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Protective and Regulatory Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeals are proposed under the Human Resources Code, §40.029, which authorizes the department to adopt rules that facilitate the implementation of departmental programs.

The repeals implement the Human Resources Code, §40.029.

§738.4101.Conduct of Hearing.

§738.4102.Attendance at Hearing.

§738.4103.Household Member's Rights during Hearing.

§738.4104.Consideration of the Case by the Hearing Officer.

§738.4105.Failure of Household Member to Appear.

§738.4106.Postponements.

§738.4107.Recessing the Hearing.

§738.4108.Findings of the Hearing Officer.

§738.4109.The Hearing Record and Decision.

§738.4110.Effect of an Administrative Determination of Intentional Program Violation.

§738.4111.Notification of Hearing Decision.

§738.4112.Court Actions in Relation to Administrative Disqualification.

§738.4113.Presentation of the Department's Case.

§738.4114.Effect of Nondetermination of Intentional Program Violation.

§738.4115.Consolidation of Administrative Disqualification Hearings and Fair Hearings.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 22, 2002.

TRD-200201800

C. Ed Davis

Deputy Director, Legal Services

Texas Department of Protective and Regulatory Services

Proposed date of adoption: May 24, 2002

For further information, please call: (512) 438-3437

Chapter 744. OMBUDSMAN SERVICES

40 TAC §§744.1 - 744.3

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Protective and Regulatory Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Texas Department of Protective and Regulatory Services (PRS) proposes the repeal of Chapter 744, consisting of §§744.1 - 744.3, in its Ombudsman Services chapter. As part of the rule review required by the Texas Government Code, §2001.039 and the General Appropriations Act of 1997, Article IX, §167, PRS is proposing to delete the rules in this chapter. Also in this issue of the Texas Register , PRS is proposing new ombudsman services rules in Chapter 702, General Administration.

Mary Fields, Budget and Federal Funds Director, has determined that for the first five-year period the proposed repeal will be in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the repeal.

Ms. Fields also has determined that for each year of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be that the rewritten rules will be clearer and easier to understand. There will be no effect on large, small, or micro-businesses because no new requirements are being implemented. There is no anticipated economic cost to persons who are required to comply with the proposed repeal.

Questions about the content of the proposal may be directed to Betty Hable at (512) 834-3739 in PRS's Ombudsman Office. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-196, Texas Department of Protective and Regulatory Services E-611, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register .

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

The repeal is proposed under the Human Resources Code, §40.029, which authorizes the department to adopt rules that facilitate the implementation of departmental programs.

The repeal implement the Human Resources Code, §40.029.

§744.1.Investigation Reporting.

§744.2.Ombudsman Complaint Process.

§744.3.Ombudsman Office Review.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 22, 2002.

TRD-200201802

C. Ed Davis

Deputy Director, Legal Services

Texas Department of Protective and Regulatory Services

Proposed date of adoption: May 24, 2002

For further information, please call: (512) 438-3437