25 TAC §448.505
The Executive Commissioner of the Health and Human Services
Commission, on behalf of the Department of State Health Services (department),
proposes an amendment to §448.505 concerning the general environment
in chemical dependency treatment facilities.
BACKGROUND AND PURPOSE
The proposed amendment to §448.505 makes available to all chemical
dependency treatment facilities by rule a limited exception to the prohibition
against alcohol on the program site, which had been previously granted by
variance to a facility requesting it. The proposed amendment provides for
a narrow exception, with safeguards, for presiding clergy members' possession
and consumption on the program site of a limited amount of alcohol as a standard
part of a sacramental rite in order to avoid undue governmental interference
with the free exercise of religion.
SECTION-BY-SECTION SUMMARY
The amendment to §448.505 allows four ounces of alcohol to be brought
onto the program site by a clergy member, and while on site to remain in the
sole possession, custody, and control of the clergy member. The alcohol is
permitted to be brought onto the program site and used solely for the purpose
of enabling a clergy member to preside over a sacramental rite. The chemical
dependency treatment facility is not permitted to allow any person other than
the clergy member to be in possession, custody, or control of, or to consume
any portion of the alcohol brought to the program site. The facility is required
to maintain and make available to the department upon request documentation
of the clergy member's identification, and each date and time when alcohol
is permitted to be brought onto the program site.
FISCAL NOTE
Kathy Perkins, Director, Healthcare Quality Section, Regulatory Division,
has determined that for each year of the first five-year period that the section
will be in effect, there will be no fiscal implications to state or local
governments as a result of enforcing and administering the section as proposed
in that costs and workload resulting from the rule amendment will be absorbed
within the existing budget.
SMALL AND MICRO-BUSINESS IMPACT ANALYSIS
Ms. Perkins has also determined that there will be no effect on small businesses
or micro-businesses required to comply with the section as proposed. This
was determined by interpretation of the rule that small businesses and micro-businesses
that operate chemical dependency treatment facilities will not be required
to significantly alter their business practices in order to comply with the
section. There are no anticipated economic costs to persons who are required
to comply with the section as proposed because the alcohol would be brought
onto the program site by a clergy member and additional documentation requirements
are minimal and can be absorbed within facilities' existing costs. There is
no anticipated negative impact on local employment.
PUBLIC BENEFIT
In addition, Ms. Perkins has also determined that for each year of the
first five years the section is in effect, the public will benefit from adoption
of the section. The public benefit anticipated as a result of enforcing or
administering the section is the prevention of state interference with the
free exercise of religion by chemical dependency treatment facility clients
by permitting, with safeguards, a clergy member's use of alcohol during a
sacramental rite at a facility.
REGULATORY ANALYSIS
The department has determined that this proposal is not a "major environmental
rule" as defined by Government Code, §2001.0225. "Major environmental
rule" is defined to mean a rule the specific intent of which is to protect
the environment or reduce risk to human health from environmental exposure
and that may adversely affect, in a material way, the economy, a sector of
the economy, productivity, competition, jobs, the environment or the pubic
health and safety of a state or a sector of the state. This proposal is not
specially intended to protect the environment or reduce risks to human health
from environmental exposure.
TAKINGS IMPACT ASSESSMENT
The department has determined that the proposed amendment 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, do not constitute a taking
under Government Code, §2007.043.
PUBLIC COMMENT
Comments on the proposal may be submitted to Jane Guerrero, Facility Licensing
Group, Regulatory Licensing Unit, Department of State Health Services, 1100
West 49th Street, Mail Code 1980, Austin, Texas 78756, (512) 834-6639 or by
email to jane.guerrero@dshs.state.tx.us. Comments will be accepted for 30
days following publication of the proposal in the
Texas Register
.
LEGAL CERTIFICATION
The Department of State Health Services General Counsel, Cathy Campbell,
certifies that the proposed rule has been reviewed by legal counsel and found
to be within the state agencies' authority to adopt.
STATUTORY AUTHORITY
The proposed amendment is authorized by Health and Safety Code, §464.009,
which authorizes the Executive Commissioner of the Health and Human Services
Commission (Executive Commissioner) to adopt rules governing chemical dependency
treatment facilities, including their policies and procedures, client living
environment, protection of client rights, and standards to ensure client safety,
protection, health and comfort; and Government Code, §531.0055, and Health
and Safety Code, §1001.075, which authorize the Executive Commissioner
to adopt rules and policies necessary for the operation and provision of health
and human services by the department and for the administration of Health
and Safety Code, Chapter 1001.
The proposed amendment affects the Health and Safety Code, Chapters 464
and 1001, and Government Code, Chapter 531.
§448.505.General Environment.
(a)
The facility shall comply with applicable requirements
of the Americans with Disabilities Act (ADA). The facility shall maintain
documentation that it has conducted a self-inspection to evaluate compliance
and implemented a corrective action plan, as necessary, with reasonable time
frames to address identified deficiencies.
(b)
The facility shall have a certificate of occupancy from
the local authority that reflects the current use by the occupant or documentation
that the locality does not issue occupancy certificates.
(c)
The site, including grounds, buildings, electrical and
mechanical systems, appliances, equipment, and furniture shall be structurally
sound, in good repair, clean, and free from health and safety hazards.
(d)
The facility shall provide a safe, clean, well-lighted
and well-maintained environment.
(e)
The facility shall have adequate space, furniture, and
supplies.
(f)
The facility shall have private space for confidential
interactions, including all group counseling sessions.
(g)
The facility shall prohibit smoking inside facility buildings
and vehicles and during structured program activities. If smoking areas are
permitted, they shall be clearly marked as designated smoking areas and shall
not be less than 15 feet from any entrance to any building(s) and comply with
local codes and ordinances. Staff shall not provide or facilitate client access
to tobacco products.
(h)
The facility shall prohibit firearms and other weapons,
alcohol, illegal drugs, illegal activities, and violence on the program site
or at or during the course of any program activity, except as provided for
in paragraphs (1) and (2) of this subsection. The facility shall be responsible
for any noncompliance with this subsection
.
(1)
The facility may allow a clergy member
to bring four ounces or less of alcohol on site or to a program activity for
purposes of presiding over a religious or spiritual rite, as long as the alcohol
remains in the possession, custody, or control of the presiding clergy member
at all times while on the program site or at the program activity, is not
distributed, and is consumed only by the presiding clergy member, if at all.
(2)
The facility shall inform any clergy member
bringing alcohol on site or to a program activity under paragraph (1) of this
subsection. The facility shall create and maintain documentation, which shall
be available to staff of the Department of State Health Services upon request,
reflecting each date and time when alcohol is permitted to be brought onto
the program site or to a program activity pursuant to this subsection. The
documentation shall include the name, address, and title of the clergy member,
and shall document staff verification that the clergy member was self-identified
as such, that alcohol was brought on site or to a program activity and that
it was thereafter either removed from the site or program activity, or represented
by the presiding clergy member to have been personally consumed.
(i)
Animals shall be properly vaccinated and supervised.
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 June 19, 2006.
TRD-200603359
Cathy Campbell
General Counsel
Department of State Health Services
Earliest possible date of adoption: July 30, 2006
For further information, please call: (512) 458-7111 x6972