The Texas Department of Human Services (DHS) adopts new §§58.1, 58.3, 58.11, 58.13, 58.15, 58.21, 58.23, 58.25, 58.27, 58.29, 58.31, 58.33, 58.35, 58.37, 58.41, 58.43, 58.45, 58.47, 58.49, 58.51, 58.53, 58.55, 58.57, 58.59, 58.61, 58.71, 58.73, 58.75, 58.77, 58.79, 58.91, 58.93, 58.95, 58.97, 58.99, 58.101, 58.103, 58.111, 58.113, 58.115, 58.121, 58.123, 58.131, 58.133, 58.135, and 58.137 in its Contracting to Provide Special Services to Persons with Disabilities chapter.

New §58.111 is adopted with changes to the proposed text published in the October 31, 2003, issue of the Texas Register (28 TexReg 9480). New §§58.1, 58.3, 58.11, 58.13, 58.15, 58.21, 58.23, 58.25, 58.27, 58.29, 58.31, 58.33, 58.35, 58.37, 58.41, 58.43, 58.45, 58.47, 58.49, 58.51, 58.53, 58.55, 58.57, 58.59, 58.61, 58.71, 58.73, 58.75, 58.77, 58.79, 58.91, 58.93, 58.95, 58.97, 58.99, 58.101, 58.103, 58.113, 58.115, 58.121, 58.123, 58.131, 58.133, 58.135, and 58.137 are adopted without changes to the proposed text.

DHS undertook the new rules as part of its agency-wide initiative to review existing rules and rewrite them in plain English to make them easier for the public and provider agencies to navigate and understand. As part of this process, DHS determined to remove the rules for provider agencies contracting to provide services under the Special Services to Persons with Disabilities (SSPD) Program from Chapter 48 of this title (relating to Community Care for Aged and Disabled) and place them in their own chapter for the convenience of provider agencies. The repeals of SSPD contracting rules in Chapter 48 are found elsewhere in this issue of the Texas Register .

The new rules are substantially the same as the repealed rules. DHS made some changes to ensure consistency in the terminology it uses throughout its community care programs. Other language was deleted to reduce duplication with existing licensure requirements. The new rules require provider agencies to have changes to their plans of operation approved before the change becomes effective because DHS must ensure the plan of operation complies with DHS rules before the effective date. DHS provided draft copies of the rules to provider agencies and other stakeholders, including the Aged and Disabled Advisory Committee, before publishing the proposed rules in the Texas Register . No changes resulted from the stakeholder review.

DHS received one written comment from the American Safety & Health Institute. A summary of the comment and DHS's response follow.

Comment: One commenter expressed concerns over the language in §58.111(6), requiring 24-Hour Shared Attendant Care provider agencies to have at least one employee on the premises certified in "Red Cross standard first aid." The commenter does not believe "the State of Texas intended to give one training organization an exclusive training agreement."

Response: DHS did not intend to give a single organization an exclusive training agreement. DHS has changed this language to require that the training be a United States Department of Labor, Occupational Health and Safety Administration (OSHA) or equivalent first aid and personal safety course.

Subchapter A. INTRODUCTION

The Texas Department of Human Services (DHS) adopts the repeal of §97.247; new §97.247; and amendments to §§97.401, 97.602, and 97.701 without changes to the proposed text published in the October 31, 2003, issue of the Texas Register (28 TexReg 9486).

The repeal and new section were necessary in order to incorporate Health and Safety Code, §250.006(b), as amended by House Bill 1971 and Senate Bill 1073, 78th Texas Legislature, into DHS's rule base. While updating its rule base in response to the legislation, DHS determined to simplify the rule by requiring compliance with Health and Safety Code, Chapter 250, and providing the toll-free telephone number agencies must use to search the nurse aide registry and the employee misconduct registry. Justification for the amendments to §97.401 and §97.701 is to provide clarity by removing redundancy, moving language to a more appropriate location, and removing conflicting language. The amendment to §97.401(d) changes the qualification requirements for a social worker if the agency provides medical social services. DHS determined that if the social worker is licensed in the state of Texas to provide social work services, the social worker is qualified to provide medical social services. The amendment to §97.401(d) reflects this determination.

Justification for the amendment to §97.602 is to update rule citations in the table outlining Severity Level I Violations in Figure: 40 TAC §97.602(d)(3)(C) and in the table outlining Severity Level II Violations in Figure: 40 TAC §97.602(d)(4)(B). In Figure: 40 TAC §97.602(d)(4)(B), the administrative penalty relating to employing or contracting with a registered nurse to provide or supervise nursing services was added to reflect the amendment to §97.401.

DHS received one written comment from the Texas Association for Home Care. A summary of the comment and DHS's response follow.

Comment: The Texas Association for Home Care (TAHC) thanked DHS for working with them in the development process of the licensing rules and expressed support for the changes, with one revision. TAHC requested that additional language be added to §97.247, relating to verification of employability of unlicensed persons, to clarify effective dates for compliance purposes. The section requires compliance with Health and Safety Code, Chapter 250, which was amended during the 78th legislative session to include additional criminal convictions that bar employment in a home and community support services agency. The bill specified effective dates for these additional convictions; however, these dates were not carried forward in the text of Health and Safety Code, Chapter 250. The commenter believes that placing this information in a provider letter is insufficient, labor intensive, and expensive. The commenter believes that adding the effective dates to the rule will make the information more accessible and will eliminate confusion and better enable compliance.

Response: DHS disagrees with the commenter. DHS will provide a copy of the legislative changes to Health and Safety Code, Chapter 250, and include effective dates for those changes in a provider letter to all licensed agencies for clarification purposes.

Subchapter C. MINIMUM STANDARDS FOR ALL HOME AND COMMUNITY SUPPORT SERVICES AGENCIES