The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §19.101, concerning definitions, §19.403, concerning notice of rights and services, §19.408, concerning grievances, and §19.601, concerning resident behavior and facility practice, in Chapter 19, Nursing Facility Requirements for Licensure and Medicaid Certification.

Background and Purpose

The purpose of the amendments is to implement Senate Bill (SB) 325, 79th Legislature, Regular Session, 2005, which added Chapter 322 to the Texas Health and Safety Code. Chapter 322 requires DADS to prohibit certain restraints in a variety of health care facilities, including nursing facilities. Chapter 322 also requires HHSC to adopt rules governing nursing facilities that (1) define acceptable restraint holds, (2) govern the use of seclusion, (3) develop practices to decrease the frequency of the use of restraint and seclusion, (4) permit prone and supine holds only as transitional holds, and (5) ensure that each resident and the resident's legally authorized representative are notified of the rules and policies related to restraints and seclusion. Although SB 325 allows the use of prone and supine holds as transitional holds, the proposed amendments prohibit nursing facilities from using prone and supine holds under any circumstance.

The amendments also reflect Health and Safety Code, §322.054, which prohibits a facility from retaliating against a person because the person in good faith provides information relating to the misuse of restraint or seclusion at the facility or against a resident because someone on behalf of the resident in good faith provides information relating to the misuse of restraint or seclusion at the facility.

In addition, the amendments clarify and update rule language, include replacing references to the former Texas Department of Human Services with references to DADS.

Section-by-Section Summary

The amendment to §19.101 adds definitions for "DADS," "restraint hold," and "seclusion;" removes the definition for "board;" and updates other definitions in the section to correct agency names, agency divisions, and cross-references. The new definition for "seclusion" provides a reference to the current definition for "involuntary seclusion" at §19.101(1)(A).

The amendment to §19.403(b)(6) requires a nursing facility to notify a resident and the resident's legally authorized representative (if the resident has one) of the DADS rules and facility policies related to the use of restraint and involuntary seclusion.

The amendment to §19.408(c) prohibits a nursing facility from discharging or retaliating against (1) an employee, resident of the facility, or other person because the employee, resident, or other person in good faith provides information relating to the misuse of restraint or involuntary seclusion at the facility; or (2) a resident because someone on behalf of the resident in good faith provides information relating to the misuse of restraint or involuntary seclusion at the facility.

The amendment to §19.601 addresses the remaining provisions concerning the use of restraint that are required by SB 325. Subsection (a)(2) lists the types of restraint that are prohibited from use in a nursing facility. Subsection (a)(3) defines a behavioral emergency. Subsection (a)(4) describes the criteria for an acceptable restraint hold a facility may use during a behavioral emergency, and subsection (a)(5) requires the facility to use a restraint hold only for the shortest period of time necessary to ensure the protection of the resident or others. Subsection (a)(6) states that a facility may adopt policies that allow less use of restraint than allowed by DADS' rules.

Texas Health and Safety Code, Chapter 322, requires rules be adopted to govern the use of seclusion (referred to as "involuntary seclusion" in this proposal); however, §19.601(c)(1)(A) already prohibits the use of seclusion in nursing facilities.

Fiscal Note

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendments are in effect, enforcing or administering the amendments does not have foreseeable implications relating to costs or revenues of state or local governments.

Small Business and Micro-business Impact Analysis

DADS has determined that there is no adverse economic effect on small businesses or micro-businesses or on businesses of any size as a result of enforcing or administering the amendments, because the amendments do not impose new requirements on businesses and do not require the purchase of any new equipment or any increased staff time in order to comply.

Public Benefit and Costs

Veronda Durden, DADS Assistant Commissioner for Regulatory Services, has determined that, for each year of the first five years the amendments are in effect, the public benefit expected as a result of enforcing the amendments is that the rights and physical well-being of nursing facility residents will be better protected through increased oversight and emphasis on the reduction and safe use of restraint in nursing facilities.

Ms. Durden anticipates that there will not be an economic cost to persons who are required to comply with the amendments. The amendments will not affect a local economy.

Takings Impact Assessment

DADS has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

Public Comment

Questions about the content of this proposal may be directed to Hannah Ndika at (512) 438-2133 in DADS' Regulatory Services Policy Development and Support Unit. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-007, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register.

Subchapter B. DEFINITIONS

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), the repeal of §42.12 and simultaneously proposes new §42.12, concerning the provision of Deaf-Blind with Multiple Disabilities (DBMD) services when costs exceed the individual cost limit, in Chapter 42, Medicaid Waiver Program for People Who Are Deaf-Blind with Multiple Disabilities.

Background and Purpose

The purpose of the new section and repeal is to implement Senate Bill 626, 79th Texas Legislature, which added §32.058 to the Texas Human Resources Code. Section 32.058 prohibits DADS from providing services in certain medical assistance waiver programs, including the DBMD Program, if the cost of services exceeds the specified individual cost limit. However, the law makes two specific exceptions to the prohibition and allows the HHSC executive commissioner to adopt a rule allowing DADS to grant an exemption in individual cases.

The proposed new section is similar to the section that is proposed for repeal, except for the following: (1) Proposed new §42.12 specifically provides that an individual who was receiving DBMD services on September 1, 2005, at a cost that exceeded the individual cost limit will continue to receive those services, if continuation of the services is necessary for the individual to live in the most integrated setting appropriate and does not affect DADS' compliance with federal cost-effectiveness and efficiency requirements. Current §42.12 does not specify a date on which the individual must have been receiving services. (2) Proposed new §42.12 states that DADS will continue to provide DBMD services to an individual whose services exceed the cost limit under certain circumstances, including if the cost of providing the services over a 12-month period does not exceed 133.3% of the cost limit. In contrast, current §42.12 specifies that the cost of providing services may not exceed 133.3% of the individual cost limit when averaged over a six-month period. (3) Proposed new §42.12 states that the DADS commissioner may exempt an individual from the 133.3% cost limit, while current §42.12 authorizes the former Texas Board of Human Services or the former Texas Department of Human Services (DHS) commissioner to grant such an exemption.

Section-by-Section Summary

The repeal of §42.12, which governs exceptions to the individual cost limit as authorized by the 78th Texas Legislature in Rider 7b of DHS's 2004-2005 fiscal appropriation, makes room for the proposed new section concerning the exceptions, as codified in Human Resources Code, §32.058.

New §42.12 states that DADS will not provide DBMD services if the cost of providing those services exceeds the specified individual cost limit, unless: (1) the individual was receiving DBMD services that exceeded the cost limit on September 1, 2005, and the services are necessary for the individual to live in the most integrated setting appropriate to the individual's needs, or (2) the cost of providing DBMD services over a 12-month period, excluding the cost of minor home modifications and adaptive aids, does not exceed 133.3% of the individual cost limit. In either case, the law requires that DADS continue to comply with federal cost-effectiveness and efficiency requirements. The new section also states that the DADS commissioner may exempt an individual receiving DBMD services from the 133.3% cost limit.

Fiscal Note

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed new section and repeal are in effect, enforcing or administering the new section and repeal does not have foreseeable implications relating to costs or revenues of state or local governments.

Small Business and Micro-business Impact Analysis

DADS has determined that there is no adverse economic effect on small businesses or micro-businesses or on businesses of any size as a result of enforcing or administering the new section and repeal, because the proposed new section does not place any new requirements on businesses.

Public Benefit and Costs

Barry Waller, DADS Assistant Commissioner for Provider Services, has determined that, for each year of the first five years the new section and repeal are in effect, the public benefit expected as a result of enforcing the new section and repeal is that the law that creates methods for certain individuals to continue receiving DBMD services if the cost of services exceeds the cost limit will be implemented in rule.

Mr. Waller anticipates that there will not be an economic cost to persons who are required to comply with the new section and repeal. The new section and repeal will not affect a local economy.

Takings Impact Assessment

DADS has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

Public Comment

Questions about the content of this proposal may be directed to Wanda Stout Adams at (512) 438-3501 in DADS' Community Services Policy Development and Support Unit. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-051, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, within 30 calendar days of publication in the Texas Register .

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), the repeal of §48.2123 and §48.6099 and simultaneously proposes new §48.2123, concerning the provision of Community Living Assistance and Support Services (CLASS) Program services when costs exceed the individual cost limit, and new §48.6099, concerning the provision of Community Based Alternatives (CBA) services when costs exceed the individual cost limit, in Chapter 48, Community Care for Aged and Disabled.

Background and Purpose

The purpose of the new sections and repeals is to implement Senate Bill 626, 79th Texas Legislature, which added §32.058 to the Texas Human Resources Code. Section 32.058 prohibits DADS from providing services in certain medical assistance waiver programs, including the CLASS and CBA programs, if the cost of services exceeds the specified individual cost limit. However, the law makes two specific exceptions to the prohibition and allows the HHSC executive commissioner to adopt a rule allowing DADS to grant an exemption in individual cases.

The proposed new sections are similar to the sections that are proposed for repeal, except for the following: (1) The proposed new sections specifically provide that an individual who was receiving services on September 1, 2005, at a cost that exceeded the individual cost limit will continue to receive those services, if continuation of the services is necessary for the individual to live in the most integrated setting appropriate and does not affect DADS' compliance with federal cost-effectiveness and efficiency requirements. The current sections do not specify a date on which the individual must have been receiving services. (2) The proposed new sections state that DADS will continue to provide services to an individual whose services exceed the cost limit under certain circumstances, including if the cost of providing the services over a 12-month period does not exceed 133.3% of the cost limit. In contrast, the current sections specify that the cost of providing services may not exceed 133.3% of the individual cost limit when averaged over a six-month period. (3) The proposed new sections state that the DADS commissioner may exempt an individual from the 133.3% cost limit, while the current sections authorize the former Texas Board of Human Services or the former Texas Department of Human Services (DHS) commissioner to grant such an exemption.

Section-by-Section Summary

The repeal of §48.2123 and §48.6099, which govern exceptions to the individual cost limit as authorized by the 78th Texas Legislature in Rider 7b of DHS's 2004-2005 fiscal appropriation, makes room for the proposed new sections concerning the exceptions, as codified in Human Resources Code, §32.058.

New §48.2123 states that DADS will not provide CLASS Program services if the cost of providing those services exceeds the specified individual cost limit, unless: (1) the individual was receiving CLASS Program services that exceeded the cost limit on September 1, 2005, and the services are necessary for the individual to live in the most integrated setting appropriate to the individual's needs, or (2) the cost of providing CLASS Program services over a 12-month period, excluding the cost of minor home modifications and adaptive aids, does not exceed 133.3% of the individual cost limit. In either case, the law requires that DADS continue to comply with federal cost-effectiveness and efficiency requirements. The new section also states that the DADS commissioner may exempt an individual receiving CLASS Program services from the 133.3% cost limit.

New §48.6099 states that DADS will not provide CBA services if the cost of providing those services exceeds the specified individual cost limit, unless: (1) the individual was receiving CBA services that exceeded the cost limit on September 1, 2005, and the services are necessary for the individual to live in the most integrated setting appropriate to the individual's needs, or (2) the cost of providing CBA services over a 12-month period, excluding the cost of minor home modifications and adaptive aids, does not exceed 133.3% of the individual cost limit. In either case, the law requires that DADS continue to comply with federal cost-effectiveness and efficiency requirements. The new section also states that the DADS commissioner may exempt an individual receiving CBA services from the 133.3% cost limit. Subsection (c) of new §48.6099 continues the provision in the current section that allows an individual receiving Medically Dependent Children Program services to transition into the CBA Program at age 21 under the 133% cost limit provisions of this section.

Fiscal Note

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed new sections and repeal are in effect, enforcing or administering the new sections and repeal does not have foreseeable implications relating to costs or revenues of state or local governments.

Small Business and Micro-business Impact Analysis

DADS has determined that there is no adverse economic effect on small businesses or micro-businesses or on businesses of any size as a result of enforcing or administering the new sections and repeal, because the proposed new sections do not place any new requirements on businesses.

Public Benefit and Costs

Barry Waller, DADS Assistant Commissioner for Provider Services, has determined that, for each year of the first five years the new sections and repeal are in effect, the public benefit expected as a result of enforcing the new sections and repeal is that the law that creates methods for certain individuals to continue receiving CLASS Program and CBA services if the cost of services exceeds the cost limit will be implemented in rule.

Mr. Waller anticipates that there will not be an economic cost to persons who are required to comply with the new sections and repeal. The new sections and repeal will not affect a local economy.

Takings Impact Assessment

DADS has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

Public Comment

Questions about the content of this proposal may be directed to Wanda Stout Adams at (512) 438-3501 in DADS' Community Services Policy Development and Support Unit. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-051, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, within 30 calendar days of publication in the Texas Register .

Subchapter C. MEDICAID WAIVER PROGRAM FOR PERSONS WITH RELATED CONDITIONS

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), the repeal of §50.50 and simultaneously proposes new §50.50, concerning the provision of Consolidated Waiver Program (CWP) services when costs exceed the individual cost limit, in Chapter 50, §1915(c) Consolidated Waiver Program.

Background and Purpose

The purpose of the new section and repeal is to implement Senate Bill 626, 79th Texas Legislature, which added §32.058 to the Texas Human Resources Code. Section 32.058 prohibits DADS from providing services in certain medical assistance waiver programs, including CWP, if the cost of services exceeds the specified individual cost limit. However, the law makes two specific exceptions to the prohibition and allows the HHSC executive commissioner to adopt rules allowing DADS to grant an exemption in individual cases.

The proposed new section is similar to the section that is proposed for repeal, except for the following: (1) Proposed new §50.50 specifically provides that an individual who was receiving CWP services on September 1, 2005, at a cost that exceeded the individual cost limit will continue to receive those services, if continuation of the services is necessary for the individual to live in the most integrated setting appropriate and does not affect DADS' compliance with federal cost-effectiveness and efficiency requirements. Current §50.50 does not specify a date on which the individual must have been receiving services. (2) Proposed new §50.50 states that DADS will continue to provide CWP services to an individual whose services exceed the cost limit under certain circumstances, including if the cost of providing the services over a 12-month period does not exceed 133.3% of the cost limit. In contrast, current §50.50 specifies that the cost of providing services may not exceed 133.3% of the individual cost limit when averaged over a six-month period. (3) Proposed new §50.50 states that the DADS commissioner may exempt an individual from the 133.3% cost limit, while current §50.50 authorizes the former Texas Board of Human Services or the former Texas Department of Human Services (DHS) commissioner to grant such an exemption.

Section-by-Section Summary

The repeal of §50.50, which governs exceptions to the individual cost limit as authorized by the 78th Texas Legislature in Rider 7b of DHS's 2004-2005 fiscal appropriation, makes room for the proposed new section concerning the exceptions, as codified in Human Resources Code, §32.058.

New §50.50 states that DADS will not provide CWP services if the cost of providing those services exceeds the specified individual cost limit, unless: (1) the individual was receiving CWP services that exceeded the cost limit on September 1, 2005, and the services are necessary for the individual to live in the most integrated setting appropriate to the individual's needs, or (2) the cost of providing CWP services over a 12-month period, excluding the cost of minor home modifications and adaptive aids, does not exceed 133.3% of the individual cost limit. In either case, the law requires that DADS continue to comply with federal cost-effectiveness and efficiency requirements. The new section also states that the DADS commissioner may exempt an individual receiving CWP services from the 133.3% cost limit.

Fiscal Note

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed new section and repeal are in effect, enforcing or administering the new section and repeal does not have foreseeable implications relating to costs or revenues of state or local governments.

Small Business and Micro-business Impact Analysis

DADS has determined that there is no adverse economic effect on small businesses or micro-businesses or on businesses of any size as a result of enforcing or administering the new section and repeal, because the proposed new section does not place any new requirements on businesses.

Public Benefit and Costs

Barry Waller, DADS Assistant Commissioner for Provider Services, has determined that, for each year of the first five years the new section and repeal are in effect, the public benefit expected as a result of enforcing the new section and repeal is that the law that creates methods for certain individuals to continue receiving CWP services if the cost of services exceeds the cost limit will be implemented in rule.

Mr. Waller anticipates that there will not be an economic cost to persons who are required to comply with the new section and repeal. The new section and repeal will not affect a local economy.

Takings Impact Assessment

DADS has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

Public Comment

Questions about the content of this proposal may be directed to Wanda Stout Adams at (512) 438-3501 in DADS' Community Services Policy Development and Support Unit. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-051, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, within 30 calendar days of publication in the Texas Register .

Subchapter B. ELIGIBILITY, ENROLLMENT, AND SERVICES

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §90.3, concerning definitions, and §90.42, concerning standards for facilities serving persons with mental retardation or related conditions; and proposes new §90.328, concerning retaliation prohibited, in Chapter 90, Intermediate Care Facilities for Persons with Mental Retardation or Related Conditions.

Background and Purpose

The purpose of the amendments and new section is to implement Senate Bill (SB) 325, 79th Legislature, Regular Session, 2005, which added Chapter 322 to the Texas Health and Safety Code. Chapter 322 requires DADS to prohibit certain restraints in a variety of health care facilities, including an intermediate care facility for persons with mental retardation (ICF/MR) licensed by DADS under Chapter 252 of the Texas Health and Safety Code. Chapter 322 also requires HHSC to adopt rules governing ICF/MR that (1) define acceptable restraint holds (referred to as "personal holds" in this proposal), (2) govern the use of seclusion, (3) develop practices to decrease the frequency of the use of restraint and seclusion, (4) permit prone and supine holds only as transitional holds, and (5) ensure that each resident and the resident's legally authorized representative are notified of the rules and policies related to restraints and seclusion. Chapter 322 also prohibits a facility from retaliating against a person because the person in good faith provides information relating to the misuse of restraint or seclusion at the facility or against a resident because someone on behalf of the resident in good faith provides information relating to the misuse of restraint or seclusion at the facility.

Section-by-Section Summary

The amendment to §90.3 adds definitions for the following terms: behavioral emergency, DADS, legally authorized representative, personal hold, restraint, and seclusion. The amendment also removes the definition for "board" and updates other definitions in the section to correct agency names, agency divisions, and cross-references.

The amendment to §90.42 replaces references to the Texas Department of Human Services (DHS) with references to DADS to reflect the current name of the agency that licenses ICF/MR. In addition, the amendment to §90.42(e)(4) addresses most of the provisions concerning the use of restraint that are required by SB 325. Subsection (e)(4)(A) lists the types of restraint that are prohibited from use in an ICF/MR. Subsection (e)(4)(B) lists the circumstances in which restraint may be used in an ICF/MR. Subsection (e)(4)(C) requires the facility to ensure that a resident's interdisciplinary team follows certain procedures in order to decrease the frequency of the use of restraint, including (1) identifying conditions and factors that might constitute a risk to the resident during the use of restraint or that must be taken into account if the use of restraint is considered, (2) documenting those conditions and factors in the resident's record, (3) documenting any limitations on specific restraint techniques or mechanical restraint devices in the resident's record, and (4) reviewing and updating the identified conditions and factors at least annually. Subsection (e)(4)(D) lists the safeguards a facility must take into account if restraint is used in the facility. Subsection (e)(4)(E) describes the only acceptable personal holds a facility may use during a behavioral emergency or as part of a behavior therapy program, and includes a restriction that prone and supine holds must be used as transitional holds only. Subsection (e)(4)(F) prescribes when a facility must release a resident from restraint. Subsection (e)(4)(G) requires a facility to obtain a physician's order authorizing a restraint by the end of the first business day after the use of restraint in a behavioral emergency. Subsection (e)(4)(H) requires a facility to ensure that each resident and the resident's legally authorized representative are notified of the DADS rules and the facility's policies related to restraint and seclusion. Subsection (e)(4)(I) states that a facility may adopt policies that allow less use of restraint than allowed by DADS' rules.

Texas Health and Safety Code, Chapter 322, requires rules be adopted to govern the use of seclusion. The amendment to §90.3 includes a new definition of seclusion, reflecting the definition used in Chapter 322. Section 92.42(e)(3) already prohibits seclusion in ICF/MR as a means of behavior management; the definition of seclusion as it currently appears in §92.42(e)(3) is proposed for removal given the proposed new definition of seclusion in §90.3.

New §90.328 prohibits an ICF/MR from discharging or retaliating against (1) an employee, resident of the facility, or other person because the employee, resident, or other person in good faith provides information relating to the misuse of restraint or seclusion at the facility; or (2) a resident because someone on behalf of the resident in good faith provides information relating to the misuse of restraint or seclusion at the facility.

Fiscal Note

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendments and new section are in effect, enforcing or administering the amendments and new section does not have foreseeable implications relating to costs or revenues of state or local governments.

Small Business and Micro-business Impact Analysis

DADS has determined that there is no adverse economic effect on small businesses or micro- businesses or on businesses of any size as a result of enforcing or administering the amendments and new section, because the amendments and new section do not impose new requirements on businesses and do not require the purchase of any new equipment or any increased staff time in order to comply. Additional staff training necessary to implement the new policies and procedures is not expected to have an adverse economic impact, since facilities are already required to provide staff training.

Public Benefit and Costs

Veronda Durden, DADS Assistant Commissioner for Regulatory Services, has determined that, for each year of the first five years the amendments and new section are in effect, the public benefit expected as a result of enforcing the amendments and new section is that the rights and physical well-being of individuals served in the ICF/MR Program will be better protected through increased oversight and emphasis on the reduction and safe use of restraint and seclusion in ICF/MRs.

Ms. Durden anticipates that there will not be an economic cost to persons who are required to comply with the amendments and new section. The amendments and new section will not affect a local economy.

Takings Impact Assessment

DADS has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

Public Comment

Questions about the content of this proposal may be directed to Joanne Guard at (512) 438- 3522 in DADS' Regulatory Services Policy Development and Support Unit. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-006, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register .

Subchapter A. INTRODUCTION

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §92.3, concerning definitions, §92.41, concerning standards for Type A, Type B, and Type E assisted living facilities, and §92.559, concerning the administrative penalty schedule, in Chapter 92, Licensing Standards for Assisted Living Facilities.

Background and Purpose

The purpose of the amendments is to implement Senate Bill (SB) 325, 79th Legislature, Regular Session, 2005, which added Chapter 322 to the Texas Health and Safety Code. Chapter 322 requires DADS to prohibit certain restraints in a variety of health care facilities, including assisted living facilities. Chapter 322 also requires HHSC to adopt rules governing assisted living facilities that (1) define acceptable restraint holds, (2) govern the use of seclusion, (3) develop practices to decrease the frequency of the use of restraint and seclusion, (4) permit prone and supine holds only as transitional holds, and (5) ensure that each resident and the resident's legally authorized representative are notified of the rules and policies related to restraints and seclusion. Although SB 325 allows the use of prone and supine holds as transitional holds, the proposed amendments prohibit assisted living facilities from using prone and supine holds under any circumstance.

The amendments also reflect Health and Safety Code, §322.054, which prohibits a facility from retaliating against a person because the person in good faith provides information relating to the misuse of restraint or seclusion at the facility or against a resident because someone on behalf of the resident in good faith provides information relating to the misuse of restraint or seclusion at the facility. Chapter 322 also allows an administrative penalty to be assessed against a facility for violating the prohibition against retaliation in §322.054; the proposed amendments incorporate such a penalty.

In addition, the proposed amendments clarify and update rule language, including replacing references to the former Texas Department of Human Services with references to DADS.

Section-by-Section Summary

The amendment to §92.3 adds definitions for "behavioral emergency," "DADS," "legally authorized representative," "restraint hold," and "working day;" and updates other definitions in the section to correct agency names and clarify terminology. The new definition for "behavioral emergency" provides a reference to §92.41(p)(2), where the full definition of the term is located. The definition of "seclusion" is revised to reflect the definition of "seclusion" in SB 325.

The amendment to §92.41 addresses the provisions concerning the use of restraint that are required by SB 325. Subsection (a)(4)(B)(vi) adds a component to the required training for attendants concerning practices to decrease the frequency of the use of restraint. Subsection (d)(5) requires an assisted living facility to notify a resident and the resident's legally authorized representative (if the resident has one) of the DADS rules and facility policies related to the use of restraint and seclusion. Subsection (p)(1) reiterates the provision in §92.125(a)(3) that a facility may use physical or chemical restraints only if a physician authorizes the use in writing or is necessary in an emergency. Subsection (p)(2) defines a behavioral emergency, and subsection (p)(3) states that, except in a behavioral emergency, a restraint must be administered by qualified medical personnel. Subsection (p)(4) lists the types of restraint that are prohibited from use in an assisted living facility. Subsection (p)(5) describes procedures the facility must follow if the facility uses restraint in a behavioral emergency, including: (1) using an acceptable restraint hold, (2) requiring the facility to make an appointment with the resident's physician (with the resident's consent) no later than the end of the first working day after the use of restraint, and (3) requiring the facility to notify either the resident's legally authorized representative or an individual actively involved in the resident's care, as soon as possible but no later than 24 hours after the use of restraint (if there is such a person to notify). Subsection (p)(6) requires facility staff to be aware of and adhere to the findings of the resident assessment required by §92.41(c). Subsection (p)(7) states that a facility may adopt policies that allow less use of restraint than allowed by DADS' rules. Subsection (p)(8) prohibits an assisted living facility from discharging or retaliating against (1) an employee, resident of the facility, or other person because the employee, resident, or other person in good faith provides information relating to the misuse of restraint or involuntary seclusion at the facility; or (2) a resident because someone on behalf of the resident in good faith provides information relating to the misuse of restraint or involuntary seclusion at the facility.

Texas Health and Safety Code, Chapter 322, requires that rules be adopted to govern the use of seclusion; however, §92.41(p) already prohibits the use of seclusion in assisted living facilities.

The amendment to §92.41(g)(4)(B) and (C) updates information on hearing procedures, since management of hearings now resides with HHSC.

The amendment to §92.559 adds an administrative penalty for violation of §92.41(p). The proposed penalty is $700-$800 for a small facility and $900-$1,000 for a large facility.

Fiscal Note

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendments are in effect, there are foreseeable implications relating to costs or revenues of state government. There are no foreseeable implications relating to costs or revenues of local governments.

The effect on state government for the first five years the proposed amendments are in effect is an estimated increase in revenue of $9,675 in fiscal year (FY) 2006, $9,675 in FY 2007, $9,675 in FY 2008; $9,675 in FY 2009; and $9,675 in FY 2010. The source of the anticipated increased revenue is the collection of administrative penalties for violations of §92.41(p). The amount of revenue projected is a conservative estimate based on actual deficiencies involving restraint for fiscal years 2002 through 2005.

Small Business and Micro-business Impact Analysis

DADS has determined that there may be an adverse economic effect on small businesses or micro-businesses as a result of enforcing or administering the proposed amendment to §92.41(p) due to the additional administrative penalty that may be imposed against a facility that does not comply with this rule. The administrative penalty schedule (§92.559) contains a range of amounts that may be assessed as an administrative penalty, based on the size of the facility (4-16 beds or 17 or more beds) and whether or not the license holder owns one facility or multiple facilities. The penalty amount for a small facility with a license holder that owns only one facility would be $700, for a small facility with a license holder that owns more than one facility would be $800, for a large facility with a license holder that owns only one facility would be $900 and for a large facility with a license holder that owns more than one facility would be $1,000. Therefore, the size of a business is taken into account in assessing an administrative penalty and a smaller amount will be assessed against smaller facilities and facilities whose license holder owns only one facility.

Public Benefit and Costs

Veronda Durden, DADS Assistant Commissioner for Regulatory Services, has determined that, for each year of the first five years the amendments are in effect, the public benefit expected as a result of enforcing the amendments is that the rights and physical well-being of assisted living facility residents will be better protected through increased oversight and emphasis on the reduction and safe use of restraint in assisted living facilities.

Ms. Durden anticipates that there may be a cost to persons required to comply with the amendment to §92.559 if a facility violates the provisions concerning restraint in §92.41(p) and is assessed an administrative penalty. The amendments will not affect a local economy.

Takings Impact Assessment

DADS has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

Public Comment

Questions about the content of this proposal may be directed to Jennifer Clay at (512) 438-3529 in DADS' Regulatory Services Policy Development and Support Unit. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-005, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register .

Subchapter A. INTRODUCTION