Part I. Texas Department of Human Services

Chapter 19. Nursing Facility Requirements for Licensure and Medicaid Certification

The Texas Department of Human Services (DHS) proposes amendments to §19.201, concerning criteria for licensing; §19.214, concerning criteria for denying a license or renewal of a license; and §19.2106, concerning revocation of a license, in its Nursing Facility Requirements for Licensure and Medicaid Certification chapter. The purpose of the amendments is to enable DHS to become aware of facilities experiencing serious financial difficulties, so that DHS can intervene to protect the residents of the facilities. The rules require facilities to notify DHS if they have experienced a significant change in their financial condition which could adversely affect services. Facilities which fail to notify DHS could have their licenses denied or revoked.

Eric M. Bost, 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. Bost 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 a higher quality of services within Medicaid nursing facilities. There will be no adverse economic effect on large businesses because it is only a reporting requirement. Because these rules add a notice requirement, they may have an adverse economic effect on some nursing facilities that are small businesses. Nursing facilities that are small business may have a comparatively greater cost because of the economy of scale inherent in a large facility. DHS estimates that the cost of complying with these rules should be negligible, amounting only to the cost of faxing the relevant information to the department. Such communications costs are allowable expenses when reported in the annual nursing facility cost reports that are used to set Medicaid reimbursement rates for facilities. DHS is requiring the notice be faxed so that DHS will have a written record and as much time as possible to determine if any action needs to be taken to protect facility residents. The only way to reduce the economic effect of this rule on small business is to delete the requirement.There is no anticipated economic cost to persons who are required to comply with the proposed sections.

Questions about the content of this proposal may be directed to Susan Syler at (512) 438-3111 in DHS's Long Term Care Policy Section. Written comments on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-156, Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register .

Subchapter C. Nursing Facility Licensure Application Process

40 TAC §19.201, §19.214

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 department has determined that the proposed rule will not affect any private real property interests. Accordingly, no takings impact assessment regarding this rule is required under §2007.043 of the Texas Government Code and §2.19 of the Private Real Property Rights Preservation Act Guidelines adopted by the Attorney General and published on January 12, 1996, in the Texas Register (21 TexReg 387).

The amendments are proposed under the Health and Safety Code, Chapter 242, which authorizes the department to license and regulate nursing facilities.

The amendments implement the Health and Safety Code, §242.037.

§19.201.Criteria for Licensing.

(a)-(i)

(No change.)

(j)

As a condition of continued licensure, a facility owner must notify Facility Enrollment of changes in financial conditions that could adversely impact the delivery of essential services, such as nursing or dietary services or utilities. The notification must:

(1)

occur as soon as the facility becomes aware of the change in financial condition;

(2)

include a description of the specific financial situation; and

(3)

be faxed to 512-438-2730 or 512-438-3728.

§19.214.Criteria for Denying a License or Renewal of a License.

(a)

The Texas Department of Human Services (DHS) may deny an initial license or refuse to renew a license if an applicant, or any person required to submit background and qualification information:

(1)-(6)

(No change.)

(7)

discloses any of the following actions within the five-year period preceding the application:

(A)-(E)

(No change.)

(F)

suspension of a license to operate a health care facility, long-term care facility, personal care facility, or a similar facility in any state ; or [ . ]

(8)

fails to notify DHS of a significant change in financial condition, as required under §19.201(j) of this title (relating to Criteria for Licensing).

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 May 17, 1999.

TRD-9902812

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Proposed date of adoption: August 1, 1999

For further information, please call: (512) 438-3765

2. Licensing Remedies

40 TAC §19.2106

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 department has determined that the proposed rule will not affect any private real property interests. Accordingly, no takings impact assessment regarding this rule is required under §2007.043 of the Texas Government Code and §2.19 of the Private Real Property Rights Preservation Act Guidelines adopted by the Attorney General and published on January 12, 1996, in the Texas Register (21 TexReg 387).

The amendment is proposed under the Health and Safety Code, Chapter 242, which authorizes the department to license and regulate nursing facilities.

The amendment implements the Health and Safety Code, §242.037.

§19.2106.Revocation of a License.

(a)

The Texas Department of Human Services (DHS) may revoke a facility's license when the license holder, or any other person described in §19.201(e) of this title (relating to Criteria for Licensing), has:

(1)

violated the requirements of the Health and Safety Code, Chapter 242, or the rules adopted under that chapter, in either a repeated or substantial manner; [ or ]

(2)

committed any act described in §19.2112(a)(2)-(6) of this title (relating to Administrative Penalties) ; or [ . ]

(3)

failed to notify DHS of a significant change in financial condition, as required under §19.201(j) of this title (relating to Criteria for Licensing).

(b)-(d)

(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 May 17, 1999.

TRD-9902811

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Proposed date of adoption: August 1, 1999

For further information, please call: (512) 438-3765

Chapter 104. Informal Appeals, Formal Appeals, and Mediation by Applicants/Clients of Determinations by Agency Personnel that Affect the Provision of Vocational Rehabilitation Services

40 TAC §104.6

The Texas Rehabilitation Commission (TRC) proposes an amendment to §104.6, concerning Motion for Reconsideration.

The section is being amended to provide more time for filing appeals.

Charles E. Harrison, Jr., Deputy Commissioner for Financial Services, has determined that for the first five-year period the section is in effect, there will be no fiscal implications for state or local government.

Mr. Harrison 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 more time for filing appeals. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed.

Comments on the proposal may be submitted to Roger Darley, Assistant General Counsel, Texas Rehabilitation Commission, 4900 North Lamar Boulevard, Suite 7300, Austin, Texas 78751.

The amendment is proposed under the Texas Human Resources Code, Title 7, Chapter 111, §111.018 and §111.023, which provides the Texas Rehabilitation Commission with the authority to promulgate rules consistent with Title 7, Texas Human Resources Code.

No other statute, article, or code is affected by this proposal.

§104.6.Motion for Reconsideration.

Either party to a hearing may file a motion for reconsideration with the Office for Administrative Hearings and Subrogation within 20 [ 15 ] days after issuance of the decision of the impartial hearing officer. The motion for reconsideration must specify the matters in the decision of the impartial hearing officer which the party considers to be erroneous. Any response to the motion for reconsideration must be filed no later than seven days after service of the motion. The impartial hearing officer shall rule on the motion for reconsideration no later than 15 days after receipt of the motion. If the motion is granted, the IHO shall issue a decision upon reconsideration within an additional 15 days. If the impartial hearing officer fails to rule on the motion for reconsideration within 15 days, the motion is denied as a matter of law.

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 May 17, 1999.

TRD-9902822

Charles Schiesser

Chief of Staff

Texas Rehabilitation Commission

Earliest possible date of adoption: June 27, 1999

For further information, please call: (512) 424-4050

40 TAC §117.3

The Texas Rehabilitation Commission (TRC) proposes an amendment to §117.3, concerning Board Policies.

The section is being amended to update board policies.

Charles E. Harrison, Jr., Deputy Commissioner for Financial Services, has determined that for the first five-year period the section is in effect, there will be no fiscal implications for state or local government.

Mr. Harrison 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 updated board policies. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed.

Comments on the proposal may be submitted to Roger Darley, Assistant General Counsel, Texas Rehabilitation Commission, 4900 North Lamar Boulevard, Suite 7300, Austin, Texas 78751.

The amendment is proposed under the Texas Human Resources Code, Title 7, Chapter 111, §111.018 and §111.023, which provides the Texas Rehabilitation Commission with the authority to promulgate rules consistent with Title 7, Texas Human Resources Code.

No other statute, article, or code is affected by this proposal.

§117.3.Board Policies.

(a)

The commission adopts by reference board policies contained in the Texas Rehabilitation Commission Board Policies Manual , March 25, 1999 .

(b)

Copies of the board policy manual are available for review in the Office of the General Counsel [ Legal Services Division ], Texas Rehabilitation Commission, 4900 North Lamar Boulevard, Austin, Texas 78751. Copies are available on request.

[ (c)

The commission proposes for adoption by reference an amendment to the Texas Rehabilitation Commission Board Policies Manual by removing Part A, page 8, dated August 1, 1988, and substituting therefore Part A, page 8, dated November 15, 1990, each entitled "Travel of Board Members." ]

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 May 17, 1999.

TRD-9902823

Charles Schiesser

Chief of Staff

Texas Rehabilitation Commission

Earliest possible date of adoption: June 27, 1999

For further information, please call: (512) 424-4050

Chapter 181. General Rules of Practice and Procedures

Subchapter A. General Provisions

40 TAC §181.29

The Texas Commission for the Deaf and Hard of Hearing proposes new §181.29. The new section is proposed to clarify the Certification of Deafness for Tuition Waiver program.

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 a better understanding of the operation of the Certification of Deafness for Tuition Waiver program. 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 Billy Collins, 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.

§181.29. Certification of Deafness for Tuition Waiver.

(a)

Description of Services. The Commission is responsible for providing certification of deafness for eligible applicants, to be used for applying for waiver of tuition at State funded institutes of higher education.

(b)

Eligibility of Services. To be eligible for certification, an individual must:

(1)

be a Texas resident;

(2)

submit a copy of an audiogram showing the individual's name, the name of the licensed audiologist or licensed hearing aid dealer and the pure tone average (PTA) which must be at least a 55 dB loss in the better ear without correction, or have a licensed physician sign the application certifying the individual is functionally deaf and the primary mode of communication in the classroom is visual, and

(3)

submit a completed application with original signatures; a facsimile is not acceptable.

(c )

Program Policies. Applicants should allow 14 business days for processing of applications. The certification is valid for each semester the individual enrolls at the same institution in a designated course of study. The Commission is not responsible for any fees or associated costs such as interpreters or books that may be incurred as a result of any certification of deafness.

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 May 13, 1999.

TRD-9902773

David Myers

Executive Director

Texas Commission for the Deaf and Hard of Hearing

Earliest possible date of adoption: June 27, 1999

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