Subchapter A. PROGRAM PURPOSE AND SCOPE

Subchapter B. ELIGIBILITY CRITERIA

Subchapter B. CONTRACTOR REQUIREMENTS FOR THE REFUGEE CASH ASSISTANCE PROGRAM (RCA)

Subchapter C. ELIGIBILITY DETERMINATION

Subchapter C. PROGRAM ADMINISTRATION FOR THE REFUGEE CASH ASSISTANCE PROGRAM (RCA)

Subchapter D. ELIGIBILITY FOR OTHER PROGRAMS

Subchapter D. REFUGEE CASH ASSISTANCE PARTICIPANT REQUIREMENTS

Subchapter E. CLIENT REPORTING REQUIREMENTS

Subchapter A. CHILD AND ADULT CARE FOOD PROGRAM

The Texas Department of Human Services (DHS) adopts amendments to §92.3 and §92.41. The amendment to §92.41 is adopted with changes to the proposed text published in the April 5, 2002, issue of the Texas Register (27 TexReg 2795). The amendment to §92.3 is adopted without changes.

Justification for the adoption is to incorporate 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 adoption also adds requirements for specific information that must be addressed in comprehensive assessments of residents. The resident comprehensive assessment will be used to fully evaluate a resident's service needs. DHS added these requirements for specific information because it determined this information will assist a facility in determining whether the facility is capable of handling the resident's needs and evacuating the resident during an emergency.

The change to §92.41(n)(4)(C) updates the name of the Centers for Disease Control and Prevention (CDC).

DHS received written comments from the Texas Association of Residential Care Communities (TARCC), the Texas Association of Homes and Services for the Aging (TAHSA), and the Texas Assisted Living Association (TALA). All comments were given serious consideration. Based upon the comments, minor changes have been made to the requirements for a resident comprehensive assessment. Several items have been combined, and additional explanation has been provided for other items within the same section. Text was moved from §92.41(f)(1)(C) to §92.41(f)(2)(A)(vii). There was no change to the language that was relocated. The language at the current (vii) clause was renumbered to (viii). A summary of the comments and DHS's responses follow.

Comment: Generally speaking these rules do an adequate job of addressing the matter of "Aging in Place." However, the requirement that the fire authority sign-off on the waiver is totally unnecessary and in some cases may keep a perfectly valid waiver request from being approved. (1) Reference: §92.41(f)(2)(A)(v)--As part of the waiver request, the "package" must contain the physician's approval, the resident's wish to stay or the legal representative's approval, and the facility's consent and approval. The facility also will supply the evacuation plan for the resident, specific staff positions that will be on duty, specific staff training that relates to the resident's evacuation, the facility floor showing the precise location of the resident's room, a copy of the facility's emergency evacuation plan, and the copies of facility fire drills for the past 12 months. Prior to licensure, the fire authority was given a copy of the floor plans and was acquainted with the type of assisted living facility and the type of clientele. They are advised if evacuation will be prompt, slow or impractical. They gave their approval in order to license the facility initially. In spite of all this information and prior approval, approvals from the resident and all other involved parties, the fire authority can still veto the entire waiver. This is unnecessary and inappropriate. Notification of the fire authority is sufficient. Recommendation: In (v), delete the last sentence of the paragraph that reads, "The DHS form must contain the signature of the fire authority having jurisdiction."

Response: The proposed rules reference notification of the local fire marshal or state fire marshal. This notification is required if the facility is requesting a waiver of evacuation for an inappropriately placed resident. DHS requests a signature that acknowledges notification of the fire authority when the resident no longer meets the fire evacuation criteria previously approved by the fire authority. The DHS form clearly states that the form is a notification to the fire marshal or state fire marshal and does not indicate support or approval by that department. DHS does not require approval by the fire authority. There will be no change to the proposed rules.

Comment: "Same as for 1." (1) Reference: §92.41(f)(2)(A)(vi)--Recommendation: In (vi), delete the last sentence of the paragraph that reads, "The DHS form must contain the signature of the fire suppression authority having jurisdiction."

Response: The proposed rules reference notification of the fire suppression authority. This notification is required if the facility is requesting a waiver of evacuation for an inappropriately placed resident. DHS requests a signature that acknowledges notification of the fire suppression authority when the resident no longer meets the fire evacuation criteria previously approved by the fire marshal or state fire marshal. The DHS form clearly states that the form is a notification to the fire suppression authority and does not indicate support or approval by that department. DHS does not require approval by the fire suppression authority. There will be no change to the proposed rules.

Comment: Reference: §92.41(f)(3)(C)--This rule language deals with whether or not an administrative penalty will be assessed on a facility who is determined to have an inappropriate resident. It is clear that a penalty will not be assessed yet the language leaves the issue in some doubt. Recommendation: Delete the word "may" in the sentence and replace it with "shall" or "will."

Response: DHS concurs. The language has been changed from "may not" to "will not."

Comment: Our comment is not related to changes you are proposing, but to a correction/clarification that should be made at this time. Please refer to §92.41(e)(1)(A). The second sentence reads, "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 (coordinating) all care provided at the facility." (TAHSA suggested correction added in italics.) During the earlier meetings related to developing these rules in their entirety, it was not our understanding that the facility would be legally responsible for every home health agency, physician, family member, etc., who might be providing care or services, but rather that the facility remained responsible for coordinating the service plan. Please consider making this correction/clarification at this time.

Response: This proposed change has not been presented to the stakeholders' workgroup or to the Advisory Committee on Assisted Living Facilities. This recommendation will be placed on the agenda for the next assisted living workgroup meeting. DHS will not make a change at this time.

Comment: With respect to §92.41(c), TALA recommends eliminating the reference to "... a facility must assess ..." in favor of simply requiring that comprehensive assessments be accomplished. This would not foreclose facilities from assessing residents, and it would allow third parties (such as physicians or contract nurses) to complete assessments.

Response: DHS concurs. Based upon this comment, the proposed language has been changed.

Comment: With respect to §92.41(c)(1), TALA requests clarification regarding the phrase "the comprehensive assessment must address the following." TALA assumes that the term "address" is limited in certain circumstances to requesting information from the resident or the resident's responsible party. Specifically, a facility must rely on the information provided by a resident and/or resident's responsible party to provide information regarding items C, H, Q, S, T, U, V, W, and X. If the resident and/or resident's responsible party fails or neglects to provide the facility with this information, then the facility should not be held responsible for failing to "address" those items. There has been a heightened emphasis on medical privacy issues at both the state (see Senate Bill (SB) 11, 77th Legislature) and federal (see regulations regarding the Health Insurance Portability and Accountability Act) levels that makes it incumbent on the resident to allow the facility to have access to the medical information that must be addressed under the proposed rule. In order to avoid future confusion, TALA requests clarification.

Response: DHS concurs. When a facility is unable to obtain the required information, documentation should reflect the facility's attempts to obtain the information. The proposed language has been changed.

Comment: TALA recommends striking §92.41(c)(1)(G), Psychosocial issues. The term is vague and not readily subject to clear interpretation. Moreover, "psychological" issues are addressed under proposed items C, D, E, F, H, and L, and "social" issues are addressed under proposed items B, I, J, K, M, and R. Alternatively, TALA requests DHS offer a precise definition of what exactly needs to be addressed in a psychosocial assessment that is not covered by proposed items B, C, D, E, F, H, I, J, K, L, M, and R.

Response: DHS will not delete the requirement for resident "psychosocial" information. However, examples have been provided for clarification. Two items, "mental health history" and "indicators of depression, anxiety, and sad mood," will be deleted from the required list. These two items are now covered in the "psychosocial issues" requirement.

Comment: TALA recommends striking proposed §92.41(c)(1)(J), Cycle of Daily Events, and to merge items (K), Involvement Pattern, and (R), Activity Pursuit Pattern. Items (K) and (R) are interrelated and, in many ways, redundant. One assessment addressing a resident's overall engagement in social, recreational and other activities would be less confusing and more streamlined. The presence of item (J) is also confusing in that most daily event cycles are captured either by activities of daily living (ADL) cycles (addressed by item (I)) or by Activity Patterns (addressed by items (K) and (R)).

Response: DHS concurs. The proposed language has been changed.

Comment: TALA recommends adding the following to the list of sub-items under §92.41(c)(1)(N), Physical Functioning, Ability to dress self, ability to feed self, ability to groom self.

Response: DHS concurs. The proposed language has been changed.

Comment: With respect to §92.41(c)(1)(U), TALA recommends DHS strike the phrase "possible medication side effects." Facility staff is not capable of assessing potential medication side effects as such assessments are only within the scope of practice of licensed physicians and pharmacists. Alternatively, TALA recommends this item be clarified as requiring facilities to inquire about potential medication side effects from residents and/or residents' responsible parties (who themselves would have received the information from their physician or pharmacist).

Response: DHS concurs. The additional language has been deleted from §92.41(f)(1)(C) and moved to §92.41(f)(2)(A) since it was intended to be used as part of the determination of whether or not to grant an evacuation waiver. SB 527 gives DHS the authority to develop criteria to be used, based on a resident's specific situation, to determine whether DHS will grant or deny a waiver request. The language at the current (vii) clause has been renumbered to (viii).

Comment: With respect to proposed §92.41(f)(1)(C), TALA recommends DHS track the language in SB 527, which reads: "(the facility) states in writing that the facility wishes for the resident to remain in the facility." The additional language added by DHS goes beyond the scope of SB 527. Furthermore, it is unnecessary given that a physician is required to provide an assessment of the individual.

Response: DHS does not concur. The proposed rule states that the assessment from the physician must address the resident's medical conditions and related nursing needs, ambulatory and transfer abilities and mental status. The resident comprehensive assessment submitted by the facility addresses how the resident functions in the facility. The resident's plan of care (service plan) is based on the comprehensive assessment. The information from the physician and from the facility is needed by DHS staff to determine if an evacuation waiver will be granted. SB 527 gives DHS the authority to develop criteria to be used, based on a resident's specific situation, to determine whether DHS will grant or deny a waiver request.

Comment: TALA requests that, pursuant to SB 527, DHS begin the process of developing the standard form as is required by Texas Health and Safety Code, §247.066(e)

Response: DHS has already developed the required forms and presented the forms with the proposed rules to the provider associations, advocates, providers, and consumers. The forms were presented to the Advisory Committee on Assisted Living Facilities for approval.

Subchapter A. INTRODUCTION