Proposed Rules Title 40

TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES

CHAPTER 2. MENTAL RETARDATION AUTHORITY RESPONSIBILITIES

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), new Subchapter G, consisting of §§2.301 - 2.303, 2.305, 2.307, 2.309, 2.311, 2.313, and 2.315, concerning the role and responsibilities of a mental retardation authority in Chapter 2, Mental Retardation Authority Responsibilities; and the repeal of Subchapter H, consisting of §§2.351 - 2.373, concerning standards and quality assurance for mental retardation community services and supports, in Chapter 2, Mental Retardation Authority Responsibilities.

BACKGROUND AND PURPOSE

The purpose of the proposal is to establish rules governing the role and responsibilities of a mental retardation authority (MRA), as required by Texas Health and Safety Code, §533.0355, amended by House Bill 2439, Section 2, 80th Legislature, Regular Session, 2007. The proposed rules incorporate current MRA practices and procedures and include provisions regarding quality assurance and the health, safety, and rights of individuals currently addressed in the rules proposed for repeal.

SECTION-BY-SECTION SUMMARY

Proposed new §2.301 states that the purpose of the new subchapter is to describe the role and responsibilities of an MRA.

Proposed new §2.302 states that the subchapter applies to an MRA.

Proposed new §2.303 contains the definitions for the subchapter.

Proposed new §2.305 summarizes an MRA's role and responsibilities and the contents of the subchapter.

Proposed new §2.307 describes an MRA's access, screening, intake, service coordination, enrollment, state MR facility admission, and safety net functions.

Proposed new §2.309 describes an MRA's responsibilities for institutional residents.

Proposed new §2.311 describes the requirements for an MRA in the provision and oversight of general revenue services.

Proposed new §2.313 describes the requirement to have policies and procedures to protect the rights of individuals and the process for implementing behavioral support and restraints. This new section also describes requirements regarding medication practices and obtaining informed consent for prescribing psychoactive medication.

Proposed new §2.315 describes an MRA's administrative functions, including requirements regarding local planning, quality management, utilization management, information systems, network management, consideration of public input, interest list management, and staff member qualifications.

The repeal of §§2.351 - 2.373 is proposed to allow for the proposed new sections regarding the role and responsibilities of an MRA to be located in a new subchapter.

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 the proposed new sections and repeal will not have an adverse economic effect on small businesses or micro-businesses, because the rules only apply to MRAs, which are public agencies or organizations. A small or micro-business is defined, in part, as a legal entity that is formed for the purpose of making a profit.

PUBLIC BENEFIT AND COSTS

Gary Jessee, DADS Assistant Commissioner for Access and Intake, 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 DADS rules will reflect current MRA practice and be in compliance with state law.

Mr. Jessee 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 Marcia Shultz at (512) 438-3532 in DADS' Mental Retardation Authority Section of the Access and Intake Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-025, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 025" in the subject line.

SUBCHAPTER G. ROLE AND RESPONSIBILITIES OF AN MRA

40 TAC §§2.301 - 2.303, 2.305, 2.307, 2.309, 2.311, 2.313, 2.315

STATUTORY AUTHORITY

The new sections are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Health and Safety Code, §533.0355, which provides that the HHSC executive commissioner shall adopt rules establishing the role and responsibilities of local mental retardation authorities; and Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS.

The new sections implement Texas Government Code, §531.0055, Texas Health and Safety Code, §533.0355, and Texas Human Resources Code, §161.021.

§2.301.Purpose.

The purpose of this subchapter is to describe the role and responsibilities of an MRA, including those responsibilities described in THSC, §533.0355(b).

§2.302.Application.

This subchapter applies to an MRA.

§2.303.Definitions.

The following terms and phrases, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

(1) Actively involved--Significant, ongoing, and supportive involvement with an individual by a person, as determined by the MRA, based on the person's:

(A) interactions with the individual;

(B) availability to the individual for assistance or support when needed; and

(2) Adaptive behavior--The effectiveness with or degree to which an individual meets the standards of personal independence and social responsibility expected of the individual's age and cultural group as assessed by a standardized measure.

(3) Behavioral emergency--A situation in which severely aggressive, destructive, violent, or self-injurious behavior exhibited by an individual:

(A) poses a substantial risk of imminent probable death of, or substantial bodily harm to, the individual or others;

(B) has not abated in response to attempted preventive de-escalatory or redirection techniques;

(D) does not occur during a medical or dental procedure.

(4) Behavioral support--Specialized interventions that assist an individual with increasing adaptive behaviors to replace or modify maladaptive or socially unacceptable behaviors that prevent or interfere with the individual's inclusion in home and family life or community life.

(5) Capacity--A person's ability to:

(A) understand the information provided to the person regarding a proposed psychoactive medication or behavioral support plan as described in §2.313(d)(1) or (e)(3) of this subchapter (relating to Health, Safety, and Rights); and

(B) make a decision whether to take the proposed medication or accept the behavioral support plan.

(6) CARE--The Client Assignment and Registration System database.

(7) CRCG--Community resource coordination group. A local interagency group composed of public and private agencies, organizations, and families that develops a coordinated plan of services and supports for an individual with complex needs. The group's role and responsibilities are described in the Memorandum of Understanding on Coordinated Services to Persons Needing Services from More than One Agency, available at www.dads.state.tx.us.

(8) DADS--The Department of Aging and Disability Services.

(9) Designated MRA--The MRA assigned to an individual in CARE.

(10) Developmental period--Birth through 17 years of age.

(11) General revenue services--Non-residential mental retardation services funded by general revenue through the performance contract, including:

(A) eligibility determinations;

(B) service coordination not funded by Medicaid Targeted Case Management; and

(12) HCS Program--The Home and Community-based Services Program. A program operated by DADS and approved by the Centers for Medicare and Medicaid Services in accordance with §1915(c) of the Social Security Act that provides community-based services and supports to eligible individuals who live in their own homes or family homes or other residences permitted under DADS rules related to the HCS Program.

(13) ICF/MR Program--The Intermediate Care Facility for Persons with Mental Retardation Program. A program operated by DADS in accordance with the Social Security Act that provides Medicaid-funded residential services to individuals with mental retardation or a related condition.

(14) Individual--A person seeking or receiving services and supports from an MRA.

(15) Informed consent--Consent given by an individual or the individual's LAR if the person giving the consent:

(A) is:

(i) 18 years of age or older; or

(ii) younger than 18 years of age and is or has been married or had the disabilities of minority removed for general purposes by court order as described in the Texas Family Code, Chapter 31;

(B) has not been determined by a court to lack capacity to make decisions with regard to the matter for which consent is being sought;

(D) has the capacity to give consent, as determined by the prescribing physician or the professional who develops the behavioral support plan, as applicable; and

(E) gives the consent voluntarily, free from coercion or undue influence.

(16) LAR--legally authorized representative. A person authorized by law to act on behalf of an individual with regard to a matter described in this subchapter, and who may be a parent, guardian, or managing conservator of a minor, or the guardian of an adult.

(17) Local planning--A broad-based community participatory process that identifies community values, service needs, and service priorities for individuals in the mental retardation priority population within a local service area and which guides resource development and allocation and results in a local plan that identifies goals and establishes strategies for accomplishment.

(18) Local service area--A geographic area composed of one or more Texas counties as identified in the performance contract to be served by an MRA.

(19) Medication class--A group of medications with similar actions and indications for use.

(20) Mental retardation--Consistent with THSC, §591.003, significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period.

(21) MRA--mental retardation authority. As defined in THSC, §531.002, an entity designated in accordance with the THSC, §533.035(a), to which the Health and Human Services Commission executive commissioner delegates the state's authority and responsibility within a specified region for planning, policy development, coordination, including coordination with criminal justice entities, and resource development and allocation and for supervising and ensuring the provision of mental retardation services to persons with mental retardation in the most appropriate and available setting to meet individual needs in one or more local service areas.

(22) Mental retardation priority population--Those persons who meet one or more of the following descriptions:

(A) have mental retardation;

(B) have a pervasive developmental disorder;

(C) have a related condition, are eligible for, and are enrolling in the ICF/MR Program, the HCS Program, or the TxHmL Program;

(D) are nursing facility residents who are eligible for specialized services for mental retardation or a related condition pursuant to §1919(e)(7) of the Social Security Act; or

(E) are children eligible for early childhood intervention services provided in accordance with Chapter 108 of this title (relating to Division for Early Childhood Intervention Services).

(23) Performance contract--A written agreement between DADS and an MRA as required by THSC, §534.054, for the provision of one or more functions as described in THSC, §533.035(a), and for the provision of general revenue services. The performance contract allocates general revenue funds for the MRA to fulfill its role and responsibilities as an MRA.

(24) Permanency planning--A philosophy and planning process that focuses on the outcome of family support for an individual under 22 years of age by facilitating a permanent living arrangement in which the primary feature is an enduring and nurturing parental relationship.

(25) Person-directed planning--A process that empowers the individual (and the LAR on the individual's behalf) to direct the development of a plan for services and supports that meet the individual's outcomes. The process:

(A) identifies existing services and supports necessary to achieve the individual's outcomes;

(B) identifies natural supports available to the individual and negotiates needed service system supports;

(D) accommodates the individual's style of interaction and preferences regarding time and setting.

(26) Planning team--Persons convened by an individual's MRA to develop a plan of services and supports for an individual. The team includes:

(A) the individual;

(B) if applicable, the LAR or actively involved person:

(D) other persons chosen by the individual, LAR, or actively involved person.

(27) Psychoactive medication--A medication for which the primary intended therapeutic effect is to treat or ameliorate the signs or symptoms of mental disorder, or to modify mood, affect, perception, or behavior.

(28) Restraint--A manual method, except for physical guidance or prompting of brief duration, or a mechanical device to restrict:

(A) the free movement or normal functioning of all or a portion of an individual's body; or

(B) normal access by an individual to a portion of the individual's body.

(29) Rights protection officer--As referenced in §4.113 of this title (relating to Rights Protection Officer at a State MR Facility or MRA), the staff member of an MRA whose primary duty is to advocate for the rights of individuals served by that MRA and to assist LARs in advocating for the rights of individuals.

(30) Safety net functions--As referenced in THSC, §533.0355(a)(6), functions performed by an MRA with available resources to respond to an individual in the mental retardation priority population who has an intensive need or who is in crisis to protect the individual's health and safety.

(31) Service coordination--A service provided by an MRA as defined in §2.553 of this chapter (relating to Definitions) contained in Subchapter L (relating to Service Coordination for Individuals with Mental Retardation).

(32) Service coordinator--An MRA employee who:

(A) meets the qualifications and has received training set forth in §2.559 of this chapter (relating to Minimum Qualifications) and §2.560 of this chapter (relating to Staff Training) contained in Subchapter L (relating to Service Coordination for Individuals with Mental Retardation); and

(B) performs service coordination activities.

(33) Services and supports--General revenue services and other publicly funded mental retardation services.

(34) Staff member--Personnel of an MRA including a full-time and part-time employee and a contractor.

(35) State MR facility--A state school or a state center with a mental retardation residential component that is operated by DADS.

(36) Subaverage general intellectual functioning--Consistent with THSC, §591.003, measured intelligence on standardized general intelligence tests of two or more standard deviations (not including standard error of measurement adjustments) below the age-group mean for the tests used.

(37) THSC--The Texas Health and Safety Code.

(38) TxHmL Program--The Texas Home Living Program. A program operated by DADS and approved by the Centers for Medicare and Medicaid Services in accordance with §1915(c) of the Social Security Act, that provides community-based services and supports to eligible individuals who live in their own homes or in their family homes.

§2.305.MRA's Role and Responsibilities.

(a) An MRA's role is to serve as the single point of access to services and supports for the residents within the MRA's local service area.

(b) As the single point of access, an MRA's responsibilities include:

(1) providing information about services and supports to an individual and LAR or actively involved person;

(2) ensuring an individual's access into services and supports by:

(A) conducting intake and eligibility activities for an individual seeking services and supports; and

(B) enrolling or admitting an eligible individual into services and supports;

(3) performing safety net functions;

(4) ensuring the provision and oversight of general revenue services by:

(A) developing and managing a network of general revenue services providers; and

(B) establishing processes to monitor the performance of general revenue services providers;

(5) conducting service coordination;

(6) conducting utilization management;

(7) conducting planning for the local service area, including ensuring involvement by a local advisory committee and other stakeholders;

(8) conducting permanency planning for certain individuals under 22 years of age; and

(9) protecting the rights of an individual.

(c) This subchapter elaborates on the responsibilities listed in subsection (b) of this section and describes other responsibilities of an MRA.

§2.307.Access, Screening, Intake, Service Coordination, Enrollment, State MR Facility Admission, and Safety Net Functions.

(a) Access. An MRA must have a place of business reasonably accessible to the residents of the local service area where an individual can learn about all services and supports for which the individual may be eligible. The MRA must assist an individual for whom it is the designated MRA with accessing such services and supports.

(b) Screening. An MRA must develop policies and procedures related to screening an individual seeking services and supports that address:

(1) providing an explanation of services and supports to the individual and LAR or actively involved person and family member using DADS-approved documents;

(2) gathering and documenting information to determine a need for services and supports;

(3) triaging immediate needs to be responsive to a crisis situation;

(4) determining whether a request can be met with resources at the MRA or whether the individual will be directed to alternate resources in the community;

(5) if the individual is under 22 years of age and the LAR is requesting residential services, providing to the LAR an explanation of permanency planning;

(6) assisting the individual or LAR in identifying services and supports preferences and documenting those preferences; and

(7) registering the individual's name on the appropriate interest lists.

(1) determining if an individual seeking services and supports is a member of the mental retardation priority population in accordance with Chapter 5, Subchapter D, of this title (relating to Diagnostic Eligibility for Services and Supports--Mental Retardation Priority Population and Related Conditions), and eligible for general revenue services;

(2) determining an individual's eligibility for service coordination in accordance with §2.554 of this chapter (relating to Eligibility) and §2.555 of this chapter (relating to Assessing an Individual's Need for Service Coordination) contained in Subchapter L (relating to Service Coordination for Individuals with Mental Retardation), and documenting a description of the individual's preferences and needs using a person-directed planning process that is consistent with DADS' Person Directed Planning and Family Directed Planning Guidelines for Individuals with Mental Retardation;

(3) conducting the financial assessment as required by Subchapter C of this chapter (relating to Charges for Community Services) and assisting an individual with applying for Medicaid benefits, Supplemental Security Income, or Social Security Disability Income, if appropriate;

(4) providing an explanation of rights of individuals with mental retardation in accordance with Chapter 4, Subchapter C of this title (relating to Rights and Protection of Individuals Receiving Mental Retardation Services); and

(5) providing information to the individual and LAR about the MRA's complaint, notification, and appeal processes in accordance with Subchapter A of this chapter (relating to Mental Retardation Authority Notification and Appeal).

(d) Service coordination.

(1) An MRA must offer an individual service coordination if the individual:

(A) is eligible for Medicaid and service coordination; or

(B) is not eligible for Medicaid, but is eligible for service coordination and will be enrolled in general revenue services other than service coordination.

(2) An MRA must designate a staff member to authorize and monitor an individual's service need in accordance with the performance contract if the individual:

(A) is not eligible for service coordination; and

(B) will be enrolled in a general revenue service other than service coordination.

(e) Enrollment into general revenue services.

(1) An MRA must develop policies and procedures related to enrollment into general revenue services that address:

(A) the development of a written plan of services and supports based on the individual's preferences and needs that includes:

(i) current services and supports, including existing natural supports;

(ii) outcomes to be achieved by the individual and the general revenue services to be provided to the individual;

(iii) any assessment to be conducted after enrollment;

(iv) the reason for each general revenue service to be provided; and

(v) the amount and duration of each general revenue service to be provided; and

(B) the authorization for the provision of the general revenue services identified in the plan.

(2) Except for the provision of respite in an emergency, the MRA may not provide general revenue services unless authorized in accordance with the policies and procedures required by paragraph (1) of this subsection.

(f) Enrollment in the ICF/MR, HCS, and TxHmL programs.

(1) An MRA must enroll an individual in the ICF/MR, HCS, or TxHmL programs, in accordance with the performance contract and DADS rules relating to those programs.

(2) An MRA must conduct permanency planning for an individual under 22 years of age who is enrolling in an HCS Program residential setting or an ICF/MR in accordance with the performance contract and DADS rules relating to those programs.

(g) Commitment or admission to a state MR facility.

(1) An MRA must perform its responsibilities related to an individual's commitment or admission to a state MR facility in accordance with Subchapter F of this chapter (relating to Continuity of Services--State Mental Retardation Facilities).

(2) An MRA must conduct permanency planning for an individual under 22 years of age who is committed to a state MR facility in accordance with §2.283 of this chapter (relating to MRA and State MR Facility Responsibilities) contained in Subchapter F (relating to Continuity of Services--State Mental Retardation Facilities), and the performance contract.

(h) Safety net functions. An MRA must develop policies and procedures related to safety net functions that reflect the priorities of its local planning efforts and are responsive to the needs of its local service area.

§2.309.MRA Responsibilities for Institutional Residents.

(a) Community living options information process at state MR facilities. An MRA must implement the community living options information process for residents 22 years of age and older at state MR facilities as required by the performance contract and DADS rules.

(b) Continuity of services. An MRA must comply with Subchapter F (relating to Continuity of Services--State Mental Retardation Services), Division 4 of this chapter (relating to Moving From a State MR Facility to an Alternative Living Arrangement), when a state MR facility interdisciplinary team recommends an alternative living arrangement for an individual residing in the facility.

(1) An MRA must conduct permanency planning for an individual under 22 years of age who is:

(A) residing in a nursing facility;

(B) enrolled in the ICF/MR Program, including a state MR facility; or

(2) An MRA must conduct permanency planning in accordance with the performance contract and the following rules:

(A) Section 2.283 of this chapter (relating to MRA and State MR Facility Responsibilities) contained in Subchapter F (relating to Continuity of Services--State Mental Retardation Facilities);

(B) Section 9.167 of this title (relating to Permanency Planning Reviews) contained in Chapter 9, Subchapter D (relating to Home and Community-based Services (HCS) Program); and

(C) Section 9.250 of this title (relating to Permanency Planning Reviews) contained in Chapter 9, Subchapter E (relating to ICF/MR Programs--Contracting).

§2.311.Provision and Oversight of General Revenue Services.

(a) An MRA is responsible for ensuring the provision of and overseeing an array of general revenue services described in the performance contract that is responsive to the needs of its local service area.

(b) An MRA must have policies and procedures that ensure on-going assessments are conducted for an individual, and general revenue services in the individual's plan of services and supports are coordinated and monitored in accordance with §2.556 of this chapter (relating to MRA's Responsibilities) and §2.561 of this chapter (relating to Documentation of Service Coordination) contained in Subchapter L (relating to Service Coordination for Individuals with Mental Retardation).

(c) An MRA must have policies and procedures related to respite (in-home, facility-based, or both) funded by general revenue that:

(1) encourage the use of existing local providers of respite;

(2) encourage participation by the individual and LAR or actively involved person in the choice of a qualified provider of in-home respite;

(3) describe how in-home respite providers are selected and trained;

(4) describe how emergency backup for in-home respite providers is provided;

(5) address admission procedures; and

(6) require development of a respite plan prior to the delivery of respite except in an emergency.

§2.313.Health, Safety, and Rights.

(a) Protection of rights. An MRA must develop policies and procedures that protect the rights of individuals and are consistent with Chapter 4, Subchapter C of this title (relating to Rights of Individuals with Mental Retardation).

(b) Restrictions and limitations placed on an individual.

(1) An MRA:

(A) may implement behavioral support that involves restrictions or limitations placed on an individual only in accordance with paragraph (2) of this subsection and subsection (e) of this section;

(B) must comply with subsection (f) of this section when using restraint, and for restraint used under subsection (f)(2)(A) or (B) of this section, also comply with paragraph (2) of this subsection; and

(i) the restriction or limitation protects the individual's health or safety that is jeopardized by an identified behavior; and

(ii) the MRA complies with paragraphs (2) and (3) of this subsection.

(2) An MRA must ensure that any restriction or limitation placed on an individual, except for a restraint used under subsection (f)(2)(C) of this section, is reviewed and approved by the rights protection officer and, at the discretion of the MRA, other appropriate staff members who are not on the individual's planning team, before the restriction or limitation is implemented. If a restriction or limitation is implemented in an emergency, including a behavioral emergency, the MRA must notify the rights protection officer as soon as possible after implementation.

(3) If a restriction or limitation not required to be in a behavioral support plan is approved in accordance with paragraph (2) of this subsection, the individual's plan of services and supports must:

(A) include the restriction or limitation;

(B) identify the circumstances or criteria to be met that will result in the removal of the restriction or limitation; and

(C) require the planning team to review the restriction or limitation, as necessary but at least annually, to determine appropriateness.

(1) be consistent with accepted principles of practice and applicable state laws and regulations to ensure medication is administered safely and appropriately;

(2) be approved in writing by a physician or registered nurse; and

(3) address:

(A) proper handling, storage, and disposal of medications;

(B) proper use of telephone orders if the MRA allows for telephone orders;

(C) administration of medications by staff members licensed or authorized to administer medications if the MRA allows for administration of medications;

(D) supervision of self-administration of medication by an individual; and

(E) documentation of follow-up and corrective action when medication errors occur.

(d) Informed consent for psychoactive medication. Except as provided by paragraph (2) of this subsection, a physician employed or contracted by an MRA may prescribe psychoactive medication for an individual only if the individual or LAR has given written informed consent for the medication.

(1) In seeking informed consent for a psychoactive medication, the prescribing physician must provide the individual and LAR:

(A) an explanation of the medication and its purposes;

(B) the expected beneficial effects, side effects, and risks of the medication;

(D) the existence and value of alternative forms of treatment, if any, and why the physician does not recommend the alternative treatment;

(E) instruction that the individual or LAR may withdraw consent at any time without negative repercussions by a staff member or prejudicing the future provision of services;

(F) an opportunity to ask questions concerning the medication and its use; and

(G) the time period, not to exceed one year, for which the individual's or LAR's consent will be effective.

(2) If an individual or LAR gives informed consent for a psychoactive medication but is physically unable to document the consent in writing, the prescribing physician must document in the individual's record that informed consent was given and the reason such consent was not documented by the individual or LAR.

(3) Prior to changing an individual's medication regimen that would result in a change of medication class or in a significant change in the benefits, side effects, or risks to the individual, the physician must obtain written informed consent from the individual or LAR in accordance with this subsection.

(e) Behavioral support.

(1) An MRA's policies and procedures related to behavioral support must include:

(A) the accepted standards of professional practice for the use of behavioral support, including the use of interventions during a behavioral emergency; and

(B) a requirement that only the following professionals may develop a behavioral support plan:

(i) a licensed psychologist licensed by the Texas State Board of Examiners of Psychologists or a qualified person under the supervision of a licensed psychologist;

(ii) a psychological associate licensed by the Texas State Board of Examiners of Psychologists or a qualified person under the supervision of a licensed psychological associate;

(iii) a behavior analyst certified by the Behavior Analyst Certification Board, Inc. or a qualified person under the supervision of a certified behavior analyst; or

(iv) a DADS-certified psychologist certified in accordance with §5.161 of this title (relating to TDMHMR-Certified Psychologist).

(2) Except as provided by paragraph (4) of this subsection, behavioral support interventions that involve restrictions or limitations placed on an individual or the use of intrusive techniques may only be provided in accordance with an approved written behavioral support plan. The behavioral support plan must:

(A) be based on:

(i) a functional assessment of the individual's behavior targeted by the plan; and

(ii) input from the individual's planning team and other professionals, as appropriate;

(B) describe the interventions to be used that are appropriate to the severity of the behavior targeted by the plan;

(D) be approved by the individual's planning team prior to implementation;

(E) be accepted by the individual or LAR as evidenced by the individual's or LAR's written informed consent;

(F) provide for the collection of behavioral data concerning the targeted behavior; and

(G) require the professional who developed the plan to:

(i) educate the individual and LAR and other persons identified by the planning team (for example, family members and providers) regarding the purpose, objectives, methods and documentation of the behavioral support plan and subsequent revisions of the plan;

(ii) monitor and evaluate the success of the behavioral support plan implementation as required by the plan;

(iii) review, with other members of the individual's planning team, the behavioral support plan at least annually, or more often as indicated, to determine the effectiveness of the plan; and

(iv) revise the plan as necessary, based on documented outcomes of the plan's implementation.

(3) In obtaining informed consent as required by paragraph (2)(E) of this subsection, the professional who developed that plan must provide the individual or LAR:

(A) a description of the interventions to be used in the behavioral support plan;

(B) the expected beneficial effects and risks of the interventions;

(D) the existence and value of alternative interventions, if any, and why the professional does not recommend the alternative interventions;

(E) oral and written notification that the individual or LAR may withdraw consent for the behavioral support plan at any time without negative repercussions by a staff member or prejudicing the future provision of services;

(F) an opportunity to ask questions concerning the behavioral support plan; and

(G) the time period, not to exceed one year, for which the individual's or LAR's consent will be effective.

(4) An MRA may implement behavioral support that involves restrictions or limitations placed on an individual or the use of intrusive techniques without a behavioral support plan if the support is in response to a behavioral emergency. If such behavioral support is implemented more than twice during two consecutive months, the MRA must conduct a functional assessment to determine if a behavioral support plan is needed to reduce the frequency and severity of the behaviors exhibited during the behavioral emergency.

(f) Restraint.

(1) An MRA must have and implement a curriculum that ensures staff members are trained in the prevention and management of aggressive behavior. The curriculum must be consistent with the requirements of this subsection.

(2) A staff member may use restraint only under the following circumstances:

(A) in a behavioral emergency;

(B) as part of a behavioral support plan that addresses inappropriate behavior exhibited voluntarily by an individual; or

(C) in accordance with an order for the restraint from a physician, dentist, occupational therapist, or physical therapist.

(3) A staff member is prohibited from using restraint:

(A) in a manner that:

(i) obstructs the individual's airway, including the placement of anything in, on, or over the individual's mouth or nose;

(ii) impairs the individual's breathing by putting pressure on the individual's torso; or

(iii) places the individual in a prone or supine position;

(B) for disciplinary purposes (that is, for retaliation or retribution);

(D) as a substitute for effective treatment or habilitation.

(4) If restraint will be used as part of a behavioral support plan, the planning team must:

(A) with the involvement of a physician or registered nurse, identify and document:

(i) the individual's known physical or medical conditions that might constitute a risk to the individual during the use of restraint;

(ii) the individual's ability to communicate; and

(iii) other factors, such as the individual's:

(I) cognitive functioning level;

(II) height;

(III) weight;

(IV) emotional condition, including whether the individual has a history of having been physically or sexually abused; and

(V) age; and

(B) review and update with a physician or registered nurse, at least annually or when a condition or factor documented in accordance with paragraph (4)(A) of this subsection changes significantly.

(5) If restraint is used in a behavioral emergency more than twice during two consecutive months, the planning team must ensure a functional assessment of the individual is conducted to determine if a behavioral support plan is needed to reduce the frequency and severity of the behaviors exhibited during the behavioral emergency.

(6) If a staff member restrains an individual in accordance with paragraph (2) of this subsection, the staff member must:

(A) use the minimal amount of force or pressure that is reasonable and necessary to ensure the safety of the individual and others;

(B) safeguard the individual's dignity, privacy, and well-being; and

(7) If a staff member restrains an individual in accordance with paragraph (2)(A) or (B) of this subsection, the staff member may only use a restraint hold in which the individual's limbs are held close to the body to limit or prevent movement and that is in compliance with paragraph (3)(A) of this subsection.

(8) A staff member must release an individual from restraint:

(A) as soon as the individual no longer poses a risk of imminent physical harm to the individual or others; or

(B) as soon as possible if the individual in restraint experiences a medical emergency, as indicated by the medical emergency.

(9) After restraining an individual in a behavioral emergency, a staff member must:

(A) as soon as possible but no later than one hour after the use of restraint, notify a registered nurse, licensed vocational nurse, or a professional identified in subsection (e)(1)(B) of this section of the restraint;

(B) ensure that medical services are obtained for the individual as necessary; and

§2.315.MRA Administrative Functions.

(a) In-Home and Family Support Program--Mental Retardation. An MRA must administer the In-Home and Family Support Program--Mental Retardation in accordance with Chapter 1, Subchapter I of this title (relating to TDMHMR In-Home and Family Support Program) and the performance contract.

(b) Local planning.

(1) An MRA must conduct local planning in accordance with THSC, §533.0352, and ensure involvement of the local advisory committee and other stakeholders.

(2) An MRA must participate in the local CRCG when an individual has complex needs and requires multiagency services.

(3) An MRA must coordinate with local agencies to build an integrated service delivery system which ensures broad access to and information about community services, identifies the MRA's safety net functions, and maximizes the utilization of existing resources while avoiding duplication of effort and gaps in services.

(c) Quality management. An MRA must develop a quality management program to monitor the performance of general revenue services providers and the MRA's compliance with the performance contract.

(d) Utilization management. An MRA must have:

(1) procedures describing how it authorizes general revenue services; and

(2) methods for evaluating the effectiveness of the authorization procedures.

(e) Information systems. An MRA must have information systems that:

(1) capture valid and reliable data; and

(2) accurately report required data to funding sources (for example, the Medicaid administration contractor, DADS, and other state and local agencies).

(f) Network management. An MRA must develop and manage a network of qualified providers that offer the array of general revenue services described in the performance contract.

(1) If the MRA is a provider of general revenue services, the MRA must have written procedures describing the qualifications and expectations of staff members.

(2) If a provider of general revenue services is a contractor of the MRA, the MRA must:

(A) ensure the contract is procured and complies with the requirements of Subchapter B of this chapter (relating to Contracts Management for Local Authorities);

(B) have a process for resolving complaints from contract providers; and

(C) provide appropriate technical assistance and training to ensure contract providers understand their contractual obligations (for example, documentation and billing).

(g) Consideration of public input, ultimate cost-benefit, and client care issues. In accordance with THSC, §533.035(c) an MRA must consider public input, ultimate cost-benefit, and client care issues to ensure individual choice and the best use of public money in:

(1) assembling a network of general revenue services providers;

(2) making recommendations relating to the most appropriate and available treatment alternatives for individuals in the need of services and supports; and

(3) procuring services for a local service area, including a request or proposal or open-enrollment procurement method.

(h) Interest list management.

(1) An MRA must contact individuals on the HCS Program interest list annually as required by and in accordance with the performance contract.

(2) An MRA must have policies and procedures for registering individuals on the MRA's interest list for general revenue services and annually contacting them in accordance with the performance contract.

(i) Qualifications and availability of staff members.

(1) Criminal history and registry clearances. An MRA must conduct criminal history and registry clearances for job and volunteer applicants in accordance with Chapter 4, Subchapter K of this title (relating to Criminal History and Registry Clearances).

(2) Availability of staff members. An MRA must ensure the continuous availability of trained and qualified staff members to ensure the provision of service coordination and general revenue services.

(3) Qualifications of a staff member who is a service coordinator. An MRA must ensure a staff member who is a service coordinator meets the qualifications set forth in §2.559 of this chapter (relating to Minimum Qualifications) contained in Subchapter L (relating to Service Coordination for Individuals with Mental Retardation).

(4) Qualifications of a staff member other than a service coordinator.

(A) An MRA must ensure that a staff member who is not a service coordinator and who directly provides general revenue services is at least 18 years of age and:

(i) has a high school diploma or a certificate recognized by a state as the equivalent of a high school diploma; or

(ii) has documentation of a proficiency evaluation of experience and competence to perform the job tasks that includes:

(I) written competency-based assessment of the ability to document service delivery and observations of an individual; and

(II) at least three personal references from persons not related by blood or marriage that indicate the ability to provide a safe, healthy environment for an individual.

(B) An MRA must:

(i) document the required education and work experience for a staff member who is not a service coordinator and who directly provides general revenue services and the supervisor of such staff member by position classification, by position category, or by individual position; and

(ii) ensure that a supervisor of a staff member who is not a service coordinator and who directly provides general revenue services has a minimum of one year experience working directly with people with mental retardation or other developmental disabilities (for example, work experience, volunteer experience, or personal experience as a family member).

(C) An MRA must ensure that a staff member who is not a service coordinator and who directly provides general revenue services and the supervisor of such staff member have required state certification or licensure.

(5) Required competencies and skills relating to health, safety, and support needs of individuals.

(A) An MRA must identify in writing the required competencies and skills for a staff member by position classification, position category, or individual position that meet the health, safety, and support needs of individuals and include:

(i) timeframes and frequency for the staff member to demonstrate competency; and

(ii) a method for measuring the competency and skills of the staff member.

(B) An MRA must maintain documentation that a staff member has demonstrated competencies and skills required by subparagraph (A) of this paragraph.

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 July 16, 2008.

TRD-200803641

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 31, 2008

For further information, please call: (512) 438-3734

SUBCHAPTER H. STANDARDS AND QUALITY ASSURANCE FOR MENTAL RETARDATION COMMUNITY SERVICES AND SUPPORTS

40 TAC §§2.351 - 2.373

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Department of Aging and Disability Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

STATUTORY AUTHORITY

The repeal is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Health and Safety Code, §533.0355, which provides that the HHSC executive commissioner shall adopt rules establishing the role and responsibilities of local mental retardation authorities; and Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS.

The repeal implements Texas Government Code, §531.0055, Texas Health and Safety Code, §533.0355, and Texas Human Resources Code, §161.021.

§2.351.Purpose.

§2.352.Application.

§2.353.Definitions.

§2.354.Responsibilities of Local MRAs and Designated Providers.

§2.355.Self-assessment by Local MRAs and Designated Providers.

§2.356.Outcome Measures for People.

§2.357.Outcome Measures for Organizations.

§2.358.Quality Improvement Plan.

§2.359.External Validation.

§2.360.Encouraging Full Expression of Legal and Civil Rights.

§2.361.Human Resources.

§2.362.Medication Practice and Health Related Services.

§2.363.Infection Control.

§2.364.Behavior Management.

§2.365.Psychoactive Medications.

§2.366.Consumer Records.

§2.367.Environmental Requirements.

§2.368.Respite Services.

§2.369.Additional Requirements.

§2.370.Exhibits.

§2.371.Training.

§2.372.References.

§2.373.Distribution.

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 July 16, 2008.

TRD-200803642

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 31, 2008

For further information, please call: (512) 438-3734

CHAPTER 16. PILOT PROGRAM TO INCREASE THE USE OF ADVANCE DIRECTIVES IN NURSING FACILITIES AND INTERMEDIATE CARE FACILITIES FOR PERSONS WITH MENTAL RETARDATION

40 TAC §§16.1 - 16.4

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), new Chapter 16, consisting of §§16.1 - 16.4, concerning a pilot program to increase the use of advance directives in nursing facilities and intermediate care facilities for persons with mental retardation.

BACKGROUND AND PURPOSE

The purpose of the new sections is to establish rules governing a pilot program to increase the use of advance directives in intermediate care facilities for persons with mental retardation (ICFs/MR) and nursing facilities (NFs) by educating residents and their families about advanced care planning, as directed by Senate Bill 27, 80th Legislature, Regular Session, 2007. The pilot program must implement an educational process that includes: (1) the legal issues associated with advanced directives; (2) the health care choices available to a person with terminal or irreversible condition; (3) the proper completion of advanced directives; and (4) the importance of discussing advanced directives with family, friends, advisors, and healthcare professionals.

SECTION-BY-SECTION SUMMARY

Proposed new §16.1 describes the purpose and the topics that must be included in the educational process.

Proposed new §16.2 contains the definitions for the chapter.

Proposed new §16.3 describes the location and time frame of the pilot program.

Proposed new §16.4 provides a description of the pilot program.

FISCAL NOTE

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed new sections are in effect, enforcing or administering the new sections 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 the proposed new sections will not have an adverse economic effect on small businesses or micro-businesses, because the new rules do not add any new requirements for such businesses.

PUBLIC BENEFIT AND COSTS

Jon Weizenbaum, DADS Deputy Commissioner, has determined that, for each year of the first five years the new sections are in effect, the public benefit expected as a result of enforcing the new sections is that DADS will create additional opportunities for educating residents and their families about advanced care planning.

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

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Gerardo Cantu at (512) 438-3693 in DADS' Center for Policy and Innovation. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-028, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 028" in the subject line.

STATUTORY AUTHORITY

The new sections are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; and Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS.

The new sections implement Texas Government Code, §531.0055, and Texas Human Resources Code, §161.021.

§16.1.Purpose.

This chapter establishes a pilot program mandated by Senate Bill 27, 80th Legislature, Regular Session, 2007, and developed by the Department of Aging and Disability Services to increase the use of advance directives in ICFs/MR and NFs by educating residents and their families about advanced care planning. The pilot program educates residents and their families about:

(1) the legal issues associated with advance directives;

(2) the health care choices available to a person with a terminal or irreversible condition;

(3) the proper completion of advance directives; and

(4) the importance of discussing advance directives with family, friends, advisors, and healthcare providers.

§16.2.Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

(1) Advance care planning--A process that ensures an individual's health care decisions are carried out if the individual becomes incapacitated due to health conditions.

(2) Advance directive--As defined in Texas Health and Safety Code, §166.02:

(A) a directive, as defined in Texas Health and Safety Code, §166.031, to administer, withhold, or withdraw life-sustaining treatment in the event of a terminal or irreversible condition;

(B) an out-of-hospital do-not-resuscitate order, as defined in Texas Health and Safety Code, §166.081; or

(3) ICF/MR--An intermediate care facility for persons with mental retardation, as defined in Texas Health and Safety Code, §531.002.

(4) Nursing facility--An institution licensed as a nursing home under Texas Health and Safety Code, Chapter 242.

§16.3.Pilot Location and Time Frame.

(a) The pilot program includes all NFs and ICFs/MR (other than a state mental retardation facility operated by DADS) located in Bell and McLennan Counties in Texas.

(b) The pilot program begins on October 1, 2008, and ends on June 30, 2010, unless extended by law. DADS may extend or expand the education process after the end of the program.

§16.4.Description of the Pilot Program.

(a) An NF or ICF/MR (other than a state MR facility) located in Bell or McLennan County must participate in the pilot program described in this chapter.

(b) A facility must distribute training materials developed by DADS to educate individuals and their families about advance care planning.

(d) DADS trains nursing facility and ICF/MR staff on how to use the training materials and how to collect and submit information requested by DADS.

(e) DADS provides no additional funding to a facility participating in the pilot program.

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 July 16, 2008.

TRD-200803640

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 31, 2008

For further information, please call: (512) 438-3734

CHAPTER 41. CONSUMER DIRECTED SERVICES OPTION

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §41.307, concerning initial orientation of an employer; and §41.407, concerning termination of participation in the consumer directed services option (CDS) option, in Chapter 41, Consumer Directed Services Option.

BACKGROUND AND PURPOSE

One purpose of the proposal is to update DADS rules to reflect the HHSC Rate Analysis Department's revised rate setting methodology approved by the Centers for Medicare and Medicaid Services. The proposed rules delete a reference to the previous payment methodology, which is no longer applicable.

In addition the proposal repeals the section of the rule that allows a service planning team to terminate participation in the CDS option of an individual service recipient who is convicted for an offense that bars employment. The individual service recipient in CDS is an employer and not an employee so the employment prohibition is not applicable.

SECTION-BY-SECTION SUMMARY

The amendment to §41.307 deletes rule language that allows a CDSA to bill an individual for an orientation fee if the individual does not enroll with the CDSA, terminates the CDS option, or transfers to another CDSA.

The amendment to §41.407 removes a provision that makes an individual service recipient eligible for termination in the CDS option if the individual acting as an employer has been convicted of a barrable offense.

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 the proposed amendments will not have an adverse economic effect on small businesses or micro-businesses, because the amendments do not impose any additional requirements on providers.

PUBLIC BENEFIT AND COSTS

Barry Waller, DADS Assistant Commissioner for Provider 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 DADS' CDS rules will reflect current CMS rate determination methodology and clarify who is required to have a criminal history check.

Mr. Waller 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

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Elizabeth Jones at (512) 438-4855 in DADS' Provider Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-009, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 009" in the subject line.

SUBCHAPTER C. ENROLLMENT AND RESPONSIBILITIES OF CONSUMER DIRECTED SERVICES AGENCIES

40 TAC §41.307

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program.

The amendment affects Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§41.307.Initial Orientation of an Employer.

(a) - (c) (No change.)

[~~(d) After an initial orientation, the CDSA may bill the orientation fee at the current rate schedule to the individual's service plan, within 90 days after the initial orientation, if the individual:~~]

[~~(1) does not enroll with the CDSA;~~]

[~~(2) terminates the CDS option; or~~]

[~~(3) transfers to another CDSA.~~]

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 July 16, 2008.

TRD-200803643

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 31, 2008

For further information, please call: (512) 438-3734

SUBCHAPTER D. ENROLLMENT, TRANSFER, SUSPENSION, AND TERMINATION

40 TAC §41.407

STATUTORY AUTHORITY

The amendment affects Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§41.407.Termination of Participation in the CDS Option.

(a) - (c) (No change.)

(d) An individual's case manager or service coordinator convenes the individual's service planning team concerning issues that may warrant immediate termination of the individual's participation in the CDS option. On review of the information, the service planning team may recommend immediate termination of participation in the CDS option when:

(1) (No change.)

(2) the [~~employer or~~] DR has been convicted of an offense under Chapter 32 of the Penal Code or an offense barring employment as listed in the Texas Health and Safety Code, §250.006(a) and (b); or

(3) (No change.)

(e) - (k) (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 July 16, 2008.

TRD-200803644

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 31, 2008

For further information, please call: (512) 438-3734

CHAPTER 43. SERVICE RESPONSIBILITY OPTION

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), new Chapter 43, Service Responsibility Option (SRO), consisting of Subchapter A, §§43.1 - 43.4, concerning introduction; Subchapter B, §§43.11 - 43.19, concerning responsibilities of individuals choosing to participate in the SRO; Subchapter C, §43.21 and §43.22, concerning responsibilities of an SRO provider; Subchapter D, §§43.31 - 43.33, concerning termination of the SRO; Subchapter E, §43.41 and §43.42, concerning support consultation; Subchapter F, §43.51, concerning budget; Subchapter G, §43.61, concerning reporting allegations; and Subchapter H, §43.71, concerning oversight.

BACKGROUND AND PURPOSE

The purpose of the new sections is to govern the service responsibility option (SRO). Senate Bill 1766 (80th Legislature, Regular Session, 2007) amended Texas Government Code, §531.051, to add the SRO to the array of service delivery options for community services to allow an individual service recipient to exercise greater control over the development and implementation of the individual service recipient's service plan.

The SRO is a service delivery option in which an individual service recipient or an individual service recipient's representative, who wants some control over service providers but may not want to assume all employer responsibilities required by the consumer directed services (CDS) option, selects, trains, and supervises a service provider, while payroll and personnel functions remain with an SRO provider. The proposal provides eligible individual service recipients with more opportunities for self-direction.

SECTION-BY-SECTION SUMMARY

Proposed new §43.1 provides an introduction to the requirements in the chapter.

Proposed new §43.2 describes the people and entities governed by the chapter.

Proposed new §43.3 provides an overview of the SRO and states that DADS offers the SRO and the CDS option to an individual service recipient at the same time.

Proposed new §43.4 provides the definitions for the chapter.

Proposed new §43.11 contains the requirements that a case manager, service coordinator, or other person designated by an individual service recipient's program must follow when the individual enrolls in a DADS program that offers the SRO.

Proposed new §43.12 describes service planning in the SRO and contains the requirements of a service plan.

Proposed new §43.13 requires an individual service recipient or legally authorized representative (LAR) to complete an SRO orientation and describes the topics to be discussed and the forms that must be completed at an SRO orientation.

Proposed new §43.14 requires an individual service recipient or LAR to present an SRO provider with a service back-up plan and contains the steps an individual service recipient must follow if a service provider is unable to provide services.

Proposed new §43.15 contains the requirements for a management agreement.

Proposed new §43.16 describes how service providers are selected.

Proposed new §43.17 describes service provider orientation training and describes the required documentation an individual service recipient must complete.

Proposed new §43.18 describes the responsibilities of an individual service recipient who chooses to participate in the SRO, including the requirements an individual service recipient must follow to ensure a service provider is following a service plan.

Proposed new §43.19 describes suspension and evaluation requirements.

Proposed new §43.21 contains the requirements for a provider to become an SRO provider.

Proposed new §43.22 describes SRO provider responsibilities, including assisting an individual service recipient to select and train service providers.

Proposed new §43.31 allows an individual service recipient to request voluntary termination of participation in the SRO.

Proposed new §43.32 describes the circumstances in which a case manager or service coordinator may involuntarily terminate an individual service recipient's participation in the SRO.

Proposed new §43.33 describes the circumstances in which an individual service recipient's participation in the SRO may be immediately and involuntarily terminated.

Proposed new §43.41 describes support consultation and what support consultation must include.

Proposed new §43.42 describes the responsibilities and service requirements of a support advisor.

Proposed new §43.51 describes budget and service provider payment in the SRO.

Proposed new §43.61 requires a person to whom this chapter applies to report any suspicion or knowledge of abuse, neglect, or exploitation of an individual in accordance with existing state laws and DADS rules.

Proposed new §43.71 describes the people and entities over which DADS provides oversight.

FISCAL NOTE

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed new sections will not have an adverse economic effect on small businesses or micro-businesses, because the new sections add SRO as a service delivery option for individuals and providers but do not add any new requirements for small businesses or micro-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 are in effect, the public benefit expected as a result of enforcing the new sections is that the SRO will be available to individuals who wish to participate and will allow individuals more opportunities for self-direction.

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

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

SUBCHAPTER A. INTRODUCTION

40 TAC §§43.1 - 43.4

STATUTORY AUTHORITY

The new sections are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program.

The new sections affect Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§43.1.Introduction.

This chapter describes:

(1) the SRO available to an individual or the individual's LAR;

(2) the process for enrollment and participation of an individual in the SRO;

(3) the responsibilities and requirements of an individual, LAR, or representative participating in the SRO;

(4) the responsibilities and requirements of a person or entity providing services under the SRO; and

(5) the people and entities DADS oversees in the SRO.

§43.2.Application.

This chapter applies to the following:

(1) an individual or LAR who elects to manage services delivered through the SRO;

(2) a representative;

(3) an SRO provider;

(4) a support advisor;

(5) a service provider; and

(6) a case manager or service coordinator.

§43.3.Overview of the SRO.

(a) SRO is a service delivery option available to an individual or LAR who wants some control over the individual's service providers but does not want to assume all employer responsibilities, as required by the CDS option.

(b) In the SRO, the individual, LAR, or representative selects, trains, and supervises a service provider, while payroll and personnel functions remain with the SRO provider.

§43.4.Definitions.

The following words and terms, when used in this chapter, have the following meanings unless the context clearly indicates otherwise:

(1) Adult--A person who is 18 years of age or older.

(2) Applicant--Depending on the context, an applicant is:

(A) a person applying for employment with an SRO provider;

(B) a person or legal entity applying for a contract with an SRO provider to deliver services to an individual; or

(3) Case manager--A person who provides case management services to an individual. The case manager assists an individual who receives program services in gaining access to needed services, regardless of the funding source for the services, and assists with other duties as required by the individual's program.

(4) CDSA--Consumer directed services agency. A provider contracting with DADS that provides financial management services.

(5) CDS option--Consumer Directed Services option. A service delivery option in which an individual or LAR employs and retains service providers and directs the delivery of program services as described in Chapter 41 of this title (relating to Consumer Directed Services Option).

(6) DADS--The Department of Aging and Disability Services.

(7) Entity--An organization that has a legal identity such as a corporation, limited partnership, limited liability company, professional association, or cooperative.

(8) Individual--A person enrolled in a program.

(9) LAR--Legally authorized representative. A person authorized or required by law to act on behalf of an individual with regard to a matter described in this chapter, including a parent, guardian, managing conservator of a minor, or the guardian of an adult.

(10) Management agreement--A negotiated agreement between an individual and an SRO provider that establishes each party's responsibilities to create and sustain quality services. A management agreement also establishes a schedule for the individual or LAR and the SRO provider to meet to assess the individual's well-being and the quality of services provided.

(11) Program--A community services program administered by DADS.

(12) Provider--An entity that has a contract with DADS to provide program services.

(13) Representative--A willing adult who volunteers to assist an individual or LAR with selection, training, and daily management of a service provider.

(14) Service back-up plan--A documented plan to ensure that critical program services delivered through the SRO are provided to an individual when normal service delivery is interrupted or there is an emergency.

(15) Service coordinator--An employee of a mental retardation authority who is responsible for assisting an applicant, individual, or LAR to access needed medical, social, educational, and other appropriate services, including program services. A service coordinator provides case management services to an individual.

(16) Service plan--A document developed in accordance with rules governing an individual's program to identify the program services to be provided to the individual, the number of units of each service to be provided, and the projected cost of each service.

(17) Service planning team--A group of people determined by the requirements of an individual's program that meet to discuss and make decisions or recommendations regarding an individual's program services. Some programs refer to the service planning team as an interdisciplinary team.

(18) Service provider--An employee, contractor, or vendor of the SRO provider.

(19) SRO--Service responsibility option. A service delivery option in which an individual or LAR selects, trains, and provides daily management of a service provider, while the fiscal, personnel, and service back-up plan responsibilities remain with an SRO provider.

(20) SRO orientation--A mandatory training provided by a support advisor to inform an individual or LAR about SRO responsibilities and tools to use for successful management of the SRO.

(21) SRO provider--A provider who volunteers to enroll as an SRO provider and amend its program services contract to allow an individual receiving one or more services from the provider to have a service delivered through SRO.

(22) Support advisor--A person who provides support consultation to an employer, representative, or individual receiving services through the SRO.

(23) Support consultation--A service provided by a support advisor that provides the required SRO orientation and additional support when needed by the individual to effectively carry out responsibilities under the SRO. Support consultation helps an individual or LAR meet the required daily management responsibilities of the SRO.

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 July 16, 2008.

TRD-200803645

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 31, 2008

For further information, please call: (512) 438-3734

SUBCHAPTER B. RESPONSIBILITIES OF INDIVIDUALS CHOOSING TO PARTICIPATE IN THE SRO

40 TAC §§43.11 - 43.19

STATUTORY AUTHORITY

The new sections are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program.

The new sections affect Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§43.11.Enrollment in the SRO.

(a) At the time an individual chooses to participate in the SRO, and, at least annually thereafter, a case manager, service coordinator, or other person designated by the individual's program must:

(1) provide the individual or LAR a copy of DADS' Service Responsibility Option Roles and Responsibilities form, the It's Your Choice brochure, and DADS' Acknowledgement of Information Regarding Support Consultation Services in the Consumer Directed Services (CDS) Option form;

(2) provide an oral explanation of the information contained in the Service Responsibility Option Roles and Responsibilities and Acknowledgement of Information Regarding Support Consultation Services in the Consumer Directed Services (CDS) Option forms to the applicant or LAR;

(3) document the individual's choice on DADS' Consumer Participation Choice form;

(4) present the SRO provider list and the support advisor list to the individual;

(5) instruct the individual to contact the selected support advisor within one day after the individual signs DADS' Consumer Participation Choice form; and

(6) document the individual's SRO provider and support advisor on DADS' Consumer Participation Choice form.

(b) An individual or LAR may request that a case manager, service coordinator, or other person designated by the individual's program provide additional information to the individual or LAR regarding the SRO or assist with enrollment in the SRO at any time. The case manager, service coordinator, or designee must comply within five working days after receipt of the request.

(c) An individual or LAR who initially declines participation may elect to participate in the SRO at any time if the individual's program offers the SRO.

(d) The case manager or service coordinator will notify the SRO provider in the same manner as a program provider is notified of selection as directed by program rules and policy.

§43.12.Service Planning in the SRO.

(a) A case manager, service coordinator, or other person designated by the individual's program completes service planning in the SRO in the same manner as services delivered through a program provider.

(b) A service plan must identify and document:

(1) an individual's services;

(2) an individual's service needs;

(3) an individual's service levels;

(4) changes to the service plan, including an explanation of a change;

(5) that the service plan does not exceed the individual's costs caps and cost limits; and

(6) the approval for planned services.

§43.13.SRO Orientation.

(a) Upon choosing to participate in the SRO and before the first meeting with an SRO provider, an individual or LAR must complete the SRO orientation.

(b) During the SRO orientation, the individual or LAR must complete:

(1) DADS' SRO Self-Assessment Checklist to identify additional training and other support needed to ensure the individual's success in daily management of services;

(2) DADS' SRO Roles and Responsibilities Agreement;

(3) DADS' Planning For Success and the Risk Planning Checklist to identify informal supports to be included in the individual's service back-up plan;

(4) a service back-up plan for critical services containing specific strategies, the sequence of activities, and service back-up plan contact information;

(5) a review of the resources available to an individual participating in the SRO;

(6) a review of the responsibility for potential liability if the individual or service provider is injured while doing tasks under the individual's training and supervision;

(7) a review of the management agreement that will be negotiated with the SRO provider;

(8) a checklist of the characteristics and skills an SRO provider will seek in a potential service provider; and

(9) documentation that an individual is choosing a representative and the specific management tasks the representative will assume.

§43.14.Service Back-up Plan.

(a) At the initial meeting with the SRO provider, the individual or LAR presents the service back-up plan to the SRO provider that includes:

(1) specific back-up plan strategies;

(2) the specific steps to implement each strategy, including contact with the SRO provider; and

(3) the contact information for each person or entity listed in the service back-up plan.

(b) The SRO provider and the individual must mutually approve the service back-up plan.

(d) If a service provider is unable to provide services, an individual must:

(1) implement the service back-up plan;

(2) request a back-up service provider from the SRO provider; or

(3) inform the SRO provider that services will not be needed.

§43.15.Management Agreement.

(a) At the initial meeting with an SRO provider, an individual or LAR and the SRO provider must negotiate a management agreement that establishes:

(1) the responsibilities of the individual and the SRO provider;

(2) how often quality assurance visits will occur; and

(3) how often quality assurance phone contacts will occur.

(b) The management agreement must be updated and documented at least annually.

§43.16.Service Provider Selection.

(a) A potential service provider must pass the pre-employment screenings, including criminal history and registry checks, conducted by an SRO provider in order to be eligible to be selected as a service provider.

(b) An individual, LAR, or representative interviews and selects service providers who:

(1) have been recommended by the individual; or

(2) are currently employed by the SRO provider and match the skills and traits identified by the individual during the SRO orientation.

(c) The individual must notify the SRO provider of the individual's choice of service providers no later than one day following the last interview conducted.

(d) If the individual has not selected a service provider, and up to three potential service providers have been sent within the period prior to service initiation in accordance with the individual's program rules and policy, the case manager or service coordinator must call a service planning team meeting to determine what additional supports and education from the support advisor might help the individual select a service provider.

§43.17.Service Provider Orientation Training.

(a) At or before the time a service provider starts delivering services, an individual, LAR or representative must train the selected service provider on the specific manner in which the individual prefers the approved tasks in the service plan to be delivered.

(b) If negotiated with an individual, an SRO provider may assist with the service provider orientation in the individual's home.

(1) the tasks to be performed;

(2) the training aspects specific to the needs of the individual;

(3) the date on which orientation was completed;

(4) any scheduled follow-up training to be conducted; and

(5) an evaluation of the orientation.

(d) The individual must provide documentation of the service provider orientation to the SRO provider within 14 calendar days after the completion of the orientation.

§43.18.Individual Responsibilities in the SRO.

(a) An individual, LAR, or representative who chooses to participate in the SRO serves as the daily manager of service delivery, including scheduling and managing a service provider.

(b) The individual who chooses to participate in the SRO must ensure the service provider is following the service plan, including:

(1) ensuring and verifying that the service provider does only the tasks listed in the service plan and works only the number of hours listed in the service plan;

(2) complying with SRO provider policies, including payroll policies;

(3) reviewing, approving, and signing service provider time sheets; and

(4) ensuring that the service provider submits time sheets to the SRO provider within the required time frames.

§43.19.Supervision and Evaluation.

An individual, LAR, or representative must:

(1) evaluate a service provider's job performance at the time designated by the SRO provider; and

(2) document and submit each performance evaluation to the SRO provider.

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 July 16, 2008.

TRD-200803646

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 31, 2008

For further information, please call: (512) 438-3734

SUBCHAPTER C. RESPONSIBILITIES OF AN SRO PROVIDER

40 TAC §43.21, §43.22

STATUTORY AUTHORITY

The new sections are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program.

The new sections affect Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§43.21.Contracting as an SRO Provider.

To become an SRO provider, a provider must:

(1) have a current program contract with DADS;

(2) request a contract amendment to the program contract that allows an individual receiving one or more services from the provider to have a service delivered through SRO; and

(3) have at least one person employed by the provider attend and complete the SRO training authorized by DADS.

§43.22.SRO Provider Responsibilities.

(a) At the initial meeting with an individual, an SRO provider must:

(1) negotiate a management agreement with the individual;

(2) discuss and approve a service back-up plan with the individual;

(3) provide SRO provider time sheets to the individual and explain the submission process, including how frequently time sheets must be completed and submitted; and

(4) orient the individual to the SRO provider's evaluation process, including forms and the schedule for evaluating service providers.

(b) During service provider selection, the SRO provider must:

(1) screen a potential service provider, including conducting criminal history and registry checks required by an individual's program; and

(2) send potential service providers, including those recommended by the individual, to the individual to interview.

(1) explain the SRO to the service provider, including that the SRO provider is the employer of record and that the individual is the daily manager of services;

(2) explain to the service provider that if the service provider has health or safety concerns about the individual and cannot resolve the issue after talking with the individual, the service provider must contact the SRO provider; and

(3) provide basic training and orientation to service providers regarding universal precautions, SRO provider policies, complaint procedures, and emergency procedures.

(d) After services have begun, the SRO provider must:

(1) receive and process time sheets from the service provider;

(2) send a back-up service provider, within the time frame required by an individual's program, if requested by the individual or if the individual does not implement the service back-up plan; and

(3) send new potential service providers, within the time frame required by an individual's program, to interview at the individual's request.

(e) The SRO provider must:

(1) notify a case manager or service coordinator of issues or concerns related to an individual's participation in the SRO:

(A) immediately if possible, but at least within 24 hours after becoming aware of:

(i) allegations of abuse, neglect, exploitation, or fraud; or

(ii) concerns about the individual's health, safety, or welfare; and

(B) within seven days after becoming aware of:

(i) non-delivery of services or extended breaks in services;

(ii) noncompliance with SRO management responsibilities;

(iii) noncompliance with a service back-up plan; or

(iv) over- or under-utilization of services or funds allocated in the individual's service plan for delivery of services to the individual through the SRO and in accordance with the requirements of the individual's program; and

(2) document any issues or concerns related to an individual's participation in the SRO on DADS' Case Information form.

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 July 16, 2008.

TRD-200803647

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 31, 2008

For further information, please call: (512) 438-3734

SUBCHAPTER D. TERMINATION OF THE SRO

40 TAC §§43.31 - 43.33

STATUTORY AUTHORITY

The new sections are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program.

The new sections affect Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§43.31.Voluntary Termination of Participation in the SRO.

(a) An individual may request voluntary termination of participation in the SRO at any time.

(b) A case manager or service coordinator must terminate support consultation in the individual's service plan when participation in the SRO is terminated.

(c) The termination must last at least 90 calendar days before the individual may be considered for re-enrollment in the SRO.

§43.32.Involuntary Termination of Participation in the SRO.

(a) A case manager or service coordinator may involuntarily terminate an individual from participation in the SRO, in accordance with the requirements of the individual's program, in any of the following situations:

(1) non-delivery of services or extended breaks in services;

(2) noncompliance with SRO management responsibilities;

(3) noncompliance with a service back-up plan; or

(4) over- or under-utilization of services or funds allocated in the individual's service plan for delivery of services to the individual through the SRO and in accordance with the requirements of the individual's program.

(b) Before involuntarily terminating an individual from participation in the SRO, an individual's case manager or service coordinator must convene the individual's service planning team, including the support advisor, to:

(1) provide assistance with accessing supports and developing and implementing a corrective action plan related to noncompliance with program and SRO requirements;

(2) document interventions utilized by the individual, support advisor, or representative to eliminate noncompliance with program requirements for the management of program services through the SRO; and

(3) consider options to:

(A) recommend additional interventions to be implemented under the guidance of the support advisor to protect the individual's health and welfare for continued participation in the SRO; or

(B) recommend termination of the SRO and ensure that services are provided through the program provider.

(c) If an individual, LAR, or representative does not correct the issue identified in subsection (a) of this section that caused the service planning team to initiate the steps outlined in subsection (b) of this section, the individual's case manager or service coordinator involuntarily terminates the individual from participation in the SRO.

§43.33.Immediate Jeopardy and Involuntary Termination of Participation in the SRO.

(a) An individual's case manager or service coordinator must immediately convene the individual's service planning team concerning issues that may warrant immediate termination of the individual's participation in the SRO, including:

(1) allegations of abuse, neglect, exploitation, or fraud; and

(2) concerns about the individual's health, safety, or welfare.

(b) On review of the information, the service planning team may recommend immediate termination of participation in the SRO if the individual's health or welfare is jeopardized by the individual's participation in the SRO.

(c) If recommended by the service planning team, the case manager or service coordinator must terminate an individual's participation in SRO so that the individual receives services through a program provider.

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 July 16, 2008.

TRD-200803648

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 31, 2008

For further information, please call: (512) 438-3734

SUBCHAPTER E. SUPPORT CONSULTATION

40 TAC §43.41, §43.42

STATUTORY AUTHORITY

The new sections are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program.

The new sections affect Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§43.41.Support Consultation Services.

(a) Support consultation is provided by a person who meets the qualifications of a support advisor as described in Chapter 41 of this title (relating to Consumer Directed Services Option). A support advisor may be an employee or contractor of:

(1) a CDSA; or

(2) another entity.

(b) Support consultation must include:

(1) a level of training, assistance, and support that does not duplicate or replace case management services, or another available program or non-program service or resource; and

(2) practical skills training and assistance to successfully manage service providers for authorized program services delivered through the SRO.

§43.42.Support Advisor Responsibilities.

(a) A support advisor must conduct the initial SRO orientation. The support advisor must document and notify the SRO provider and case manager or service coordinator that the individual has completed the orientation before SRO services can begin.

(b) A support advisor must assist an individual, in accordance with the individual's service plan, with:

(1) completing forms, assessments, and other documents required by the individual's program that require individual or LAR input or completion;

(2) complying with requirements of the individual's program as related to services delivered through the SRO;

(3) interviewing potential service providers, preparing job descriptions, and training service providers;

(4) managing service providers for authorized program services delivered through the SRO;

(5) helping an individual to use effective communication, decision-making, and problem-solving skills;

(6) developing, revising, and implementing service back-up plans;

(7) developing, revising, and implementing corrective action plans;

(8) complying with the requirements of the individual's program and this chapter;

(9) contacting appropriate persons or entities based on their roles, responsibilities, and eligibility, including:

(A) a case manager or service coordinator; and

(B) government agencies, including DADS and the Department of Family and Protective Services; and

(10) teaching ongoing supervisory-related skills.

(d) A support advisor must use DADS' Case Notification form to notify an individual's case manager or service coordinator:

(1) if the individual receiving support consultation is unable or unwilling to cooperate with service delivery; and

(2) of the progress and status of the service as required by the individual's program.

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 July 16, 2008.

TRD-200803649

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 31, 2008

For further information, please call: (512) 438-3734

SUBCHAPTER F. BUDGET

40 TAC §43.51

STATUTORY AUTHORITY

The new section is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program.

The new section affects Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§43.51.Service Provider Payment in the SRO.

Payment rates for the SRO are the same rates determined for the program when services are delivered through a program provider.

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 July 16, 2008.

TRD-200803650

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 31, 2008

For further information, please call: (512) 438-3734

SUBCHAPTER G. REPORTING ALLEGATIONS

40 TAC §43.61

STATUTORY AUTHORITY

The new section affects Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§43.61.Reporting Allegations.

A person to whom this chapter applies must report any suspicion or knowledge of abuse, neglect, or exploitation of an individual in accordance with existing state laws and DADS rules.

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 July 16, 2008.

TRD-200803651

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 31, 2008

For further information, please call: (512) 438-3734

SUBCHAPTER H. OVERSIGHT

40 TAC §43.71

STATUTORY AUTHORITY

The new section affects Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.

§43.71.Oversight.

DADS oversees roles and responsibilities of the following:

(1) an individual or LAR who chooses to participate in the SRO;

(2) a representative;

(3) a CDSA;

(4) a support advisor;

(5) an SRO provider;

(6) a case manager; and

(7) a service coordinator.

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 July 16, 2008.

TRD-200803652

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 31, 2008

For further information, please call: (512) 438-3734

CHAPTER 44. CLIENT MANAGED PERSONAL ATTENDANT SERVICES

SUBCHAPTER B. RESPONSIBILITIES OF ALL PROVIDER AGENCIES

DIVISION 6. CO-PAYMENT DETERMINATION

40 TAC §44.61

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), an amendment to §44.61, concerning co-payment determination and collection procedures, in Chapter 44, Client Managed Personal Attendant Services.

BACKGROUND AND PURPOSE

The purpose of the amendment is to update the guidelines for determining an individual's co-payment in the Client Managed Personal Attendant Services (CMPAS) Program. Currently, §44.61 contains a chart used to determine a co-payment amount, based on income, required for an individual to participate in the CMPAS Program. The proposal replaces this chart with a reference to the Community Care for Aged and Disabled (CCAD) Handbook, where the chart will be maintained and updated at least biennially. This change will not result in any individual being required to pay more for CMPAS.

SECTION-BY-SECTION SUMMARY

The amendment to §44.61 replaces a table that corresponds to the client's net monthly income with a reference to the co-pay schedule located in the CCAD Handbook.

FISCAL NOTE

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendment is in effect, enforcing or administering the amendment 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 the proposed amendment will not have an adverse economic effect on small businesses or micro-businesses, because the amendment will not result in any new requirements for providers.

PUBLIC BENEFIT AND COSTS

Barry Waller, DADS Assistant Commissioner for Provider Services, has determined that, for each year of the first five years the amendment is in effect, the public benefit expected as a result of enforcing the amendments is that locating the co-payment schedule in the CCAD Handbook will allow DADS to keep the information more current and accurate.

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

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Carol Griebel at (512) 438-3740 in DADS' Provider Services Division. 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, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 005" in the subject line.

STATUTORY AUTHORITY

The amendment implements Texas Government Code, §531.0055, and Texas Human Resources Code, §161.021.

§44.61.How is a client's co-payment determined and what are the procedures for collecting the co-payment?

(a) A client's co-payment is a percentage of the monthly cost for services provided to the client. To arrive at a client's co-payment, a provider agency must:

(1) - (2) (No change.)

(3) determine the client's percentage amount by referencing the co-pay schedule located in the Community Care for Aged and Disabled handbook [~~finding the percentage amount in the right column of the following table that corresponds to the client's net monthly income~~];

[~~Figure: 40 TAC §44.61(c)~~]

(4) - (5) (No change.)

(b) - (c) (No change.)

(d) In collecting monthly co-payments, a provider agency must:

(1) (No change.)

(2) deduct the co-payment from reimbursement claims submitted to the Department of Aging and Disability Services [~~DHS~~ ] under §44.112 of this chapter (relating to How are provider agencies reimbursed?); and

(3) (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 July 17, 2008.

TRD-200803659

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 31, 2008

For further information, please call: (512) 438-3734

CHAPTER 90. INTERMEDIATE CARE FACILITIES FOR PERSONS WITH MENTAL RETARDATION OR RELATED CONDITIONS

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §90.15, concerning renewal procedures and qualifications; §90.19, concerning license fees; §90.192, concerning determinations and actions pursuant to inspections; §90.236, concerning administrative penalties; and §90.240, concerning right to correct, in Chapter 90, Intermediate Care Facilities for Persons with Mental Retardation or Related Conditions.

BACKGROUND AND PURPOSE

The purpose of the amendments is to implement provisions of Senate Bill (SB) 1318 and SB 344, 80th Legislature, Regular Session, 2007. SB 1318 amended Texas Health and Safety Code, §252.034, to provide that a license holder who submits an application for license renewal later than the 45th day before the expiration of a current license is subject to a late fee in an amount equal to one-half of the basic renewal fee. SB 1318 also amended Texas Health and Safety Code, §252.065, to add violations for which DADS may assess an administrative penalty and for which DADS is not required to provide the facility time to correct prior to assessment of that penalty.

SB 344 amended Texas Health and Safety Code, §252.044, to require that DADS hold an exit conference in person if additional violations are identified after an initial exit conference. SB 344 also amended Texas Health and Safety Code, §252.044, to change the time period for a facility to submit a plan of correction for licensure violations from 10 calendar days to 10 working days after the facility receives a final, official statement of violations.

Additionally, the proposed amendments update rule language and terms and correct agency names and cross-references.

SECTION-BY-SECTION SUMMARY

The amendments to §§90.15, 90.19, and 90.192 update rule language and terms and correct agency names and cross-references.

The amendment to §90.15 states that the late renewal fee is provided in §90.19 and requires a license holder to pay the appropriate license fee upon submission of the renewal.

The amendment to §90.19 states that a license holder that submits an application for renewal during the 45-day period ending on the date the current license expires must pay a late renewal fee in an amount equal to one-half of the renewal fee described in §90.15(a)(1).

The amendment to §90.192 requires that DADS hold a second exit conference in person if additional violations are identified after an initial exit conference, changes the time period for a facility to submit a plan of correction for licensure violations from 10 calendar days to 10 working days, describes when DADS may assess an administrative penalty, and gives the assessment amounts for violations warranting an administrative penalty for which the facility is not given time to correct.

The amendment to §90.236 updates the administrative penalties chart.

The amendment to §90.240 updates requirements governing the right to correct.

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 significant foreseeable implications relating to costs or revenues of state or local governments.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed amendments may have an adverse economic effect on small businesses or micro-businesses, because the amendments allow DADS to charge late fees and administrative penalties.

DADS estimates that the number of small businesses and micro-businesses subject to the proposed amendments is less than 121. This estimate is based on DADS records, which indicate that 121 entities that have licenses to operate ICFs/MR are formed for the purpose of making a profit, one of the requirements for being a "small" or "micro" business. DADS does not have data regarding the number of employees and gross receipts to determine what percentage of these entities meet the definition of a small business or micro-business.

The projected economic impact for a small business or micro-business is a late fee in an amount equal to one-half of the total basic renewal fee in §90.19(a)(1). A small business or micro-business may also be subject to an administrative penalty ranging between $500 and $5000, as described in §90.236. The late fee and administrative penalty are incurred only if a small or micro-business does not comply with applicable rules. For that reason, DADS projects that there will be minimal economic impact to small or micro-businesses subject to these amendments.

Several alternatives were considered in determining how to accomplish the objectives of the proposed rules while minimizing the adverse economic effect on small businesses and micro-businesses. Statute allows DADS to determine the amount of the late fee and administrative penalties to be assessed in the amended rules. DADS considered imposing no fee or penalty at all for this type of non-compliance. However, failing to impose a penalty would not be consistent with DADS' responsibility as a regulatory agency (i.e., to protect the health and safety of facility residents by ensuring that facilities comply with these rules). DADS also considered the use of higher fees and penalty ranges for some violations but determined that a larger amount would be potentially detrimental to small businesses and micro-businesses. Finally, DADS considered the use of a maximum flat fee and penalty structure that did not take provider bed capacity into consideration, but determined that this structure would disproportionally impact smaller providers and a fee based on bed capacity could be implemented with minimal administrative costs.

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 DADS rules will be in compliance with state law.

Ms. Durden anticipates that there will be an economic cost to persons who are required to comply with the amendments because a late fee may be assessed for non-compliance with requirements for submitting a timely renewal application and administrative penalties, for which there is no opportunity to correct before imposition of the penalty, may be imposed for certain violations. The amendments will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Kim Lammons at (512) 438-2264 in DADS' Regulatory Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-023, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st Street, Austin, Texas 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 023" in the subject line.

SUBCHAPTER B. APPLICATION PROCEDURES

40 TAC §90.15, §90.19

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Health and Safety Code, Chapter 252, which provides the Aging and Disability Services Council with the authority to make recommendations regarding rules governing licensing and regulation of intermediate care facilities for persons with mental retardation.

The amendments implement Texas Government Code, §531.0055, and Texas Human Resources Code, §252.008 and §161.021.

§90.15.Renewal Procedures and Qualifications.

(a) (No change.)

(b) Each license holder must, at least 45 days before [ ~~prior to~~] the expiration of the current license, file an application for renewal with DADS. DADS [~~the Texas Department of Human Services (DHS). DHS~~] considers that an individual has filed a timely and sufficient application for the renewal of a license if the license holder:

(1) submits a complete application to DADS [~~DHS~~ ], and DADS [~~DHS~~] receives the complete application at least 45 days before the current license expires;

(2) submits an incomplete application to DADS [~~DHS~~ ] with a letter explaining the circumstances which prevented the inclusion of the missing information, and DADS [~~DHS~~ ] receives the incomplete application and letter at least 45 days before the current license expires; or

(3) submits a complete application to DADS [~~DHS~~], DADS [~~DHS~~] receives the application during the 45-day period ending on the date the current license expires, and the license holder [~~individual~~] pays the late renewal fee established in §90.19(a)(4) of this subchapter (relating to License Fees) in addition to the basic renewal fee [ ~~a $500 fine under the administrative penalties described in §90.236(h) of this title (relating to Administrative Penalties)~~].

(c) If the application is postmarked by the filing deadline, the application will be considered to be timely filed if received by DADS' Regulatory Services Licensing and Credentialing Section [~~in the Licensing Section of the state office of Long Term Care-Regulatory, Texas Department of Human Services,~~] within 15 days after [of] the postmark. If the application is postmarked by the filing deadline, the application will be considered to be timely filed if received in DADS' Regulatory Services Licensing and Credentialing Section [~~the licensing section of the state office of Long Term Care-Regulatory, DHS~~], within 30 days after [of] the postmark and the license holder proves to the satisfaction of the department that the delay was due to the fault of the United States Postal Service. It is the responsibility of the license holder to ensure that his application is timely received by DADS [~~DHS~~].

(d) The appropriate license fee must be paid upon submission of the renewal application [~~for renewal must contain the same information required for an original application as well as payment of the annual licensing fees~~].

(e) The renewal of a license may be denied for the same reasons an original application for a license may be denied. See §90.17 of this subchapter [~~title~~] (relating to Criteria for Denying a License or Renewal of a License).

§90.19.License Fees.

(a) Basic fees.

(1) - (2) (No change.)

(3) Change of administrator. A facility that hires a new administrator must notify DADS [~~the Texas Department of Human Services (DHS)~~] in writing not later than the 30th day after the date on which the change becomes effective and pay a $20 fee to DADS [~~DHS~~].

(4) Late renewal fee. A license holder that submits an application for renewal during the 45-day period ending on the date the current license expires must pay a late renewal fee in an amount equal to one-half of the renewal fee described in paragraph (1) of this subsection.

(b) Emergency Assistance Fee.

(1) In addition to the licensing and renewal fee collected under Texas [~~the~~] Health and Safety Code, §252.034, DADS [~~DHS~~] may collect an annual fee to be used to make emergency assistance money available to a facility licensed under this chapter.

(2) The fee collected under this section shall be in the amount prescribed by Texas [~~the~~] Health and Safety Code, §252.097(b), and shall be deposited to the credit of the nursing and convalescent home trust fund established under Texas [~~the~~] Health and Safety Code, §252.096.

(3) DADS [~~DHS~~] may disburse money to a trustee for a facility licensed under this chapter to alleviate an immediate threat to the health or safety of the facility's residents. Payments under this section may include payments described by Texas [~~the~~] Health and Safety Code, §252.096(b).

(4) A court may order DADS [~~DHS~~] to disburse emergency assistance money to a trustee for a facility licensed under this chapter, if the court makes the findings provided by Texas [~~the~~] Health and Safety Code, §252.096(c).

(c) Method of Payment. Payment of fees for initial licenses, changes of ownership, increases in bed size, and license renewals must be by check or money order made payable to DADS [~~the Texas Department of Human Services~~ ]. All fees are non-refundable except as provided by Chapter 2005 of the Texas Government Code.

(d) Quality Assurance Fee. A quality assurance fee is imposed on each facility licensed under Texas [~~the~~] Health and Safety Code, Chapter 252, each intermediate care facility for persons with mental retardation owned by a community [ ~~mental health and~~ ] mental retardation center, and each facility owned by DADS [~~the Texas Department of Mental Health and Mental Retardation~~]. The fee is payable monthly and is in addition to other fees imposed under this chapter. The amount of the fee, method of payment, and penalties for noncompliance are stated in 1 TAC Chapter 352 (relating to Quality Assurance Fee).

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 July 21, 2008.

TRD-200803698

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 31, 2008

For further information, please call: (512) 438-3734

SUBCHAPTER F. INSPECTIONS, SURVEYS, AND VISITS

40 TAC §90.192

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Health and Safety Code, Chapter 252, which provides the Aging and Disability Services Council with the authority to make recommendations regarding rules governing licensing and regulation of intermediate care facilities for persons with mental retardation.

The amendment implements Texas Government Code, §531.0055, and Texas Human Resources Code, §252.008 and §161.021.

§90.192.Determinations and Actions Pursuant to Inspections , Surveys, or Investigations .

(a) DADS [~~The Texas Department of Human Services (DHS)~~ ] will determine if a facility meets licensure requirements through inspections, surveys, and investigations [ ~~the licensing rules, including both physical plant and facility operation requirements~~].

(b) During an investigation resulting from a complaint, DADS does not disclose the source of the complaint.

(c) At the conclusion of an inspection, survey, or investigation, a representative of DADS holds an exit conference with a representative of the facility and provides the facility representative a written list of violations.

(d) If DADS cites an additional violation during a review of field notes or preparation of the official final list of violations, DADS:

(1) communicates the additional violation to the facility in writing within ten working days after the exit conference; and

(2) gives the facility an additional face-to-face exit conference regarding the additional violations.

~~[(b) Violations of regulations will be listed on forms designed for the purpose of the inspection or will be listed in letter form when administrative penalties are being proposed.]~~

~~[(c) Violations found during complaint investigations will be furnished in writing and discussed with the facility management at the exit conference. The source of the complaint will not be revealed.]~~

[(d) At the conclusion of an inspection or survey, the violations will be discussed in an exit conference with the facility's management. A written list of the violations will be left with the facility at the time of the exit conference; any additional violation that may be determined during review of field notes or preparation of the official final list (when the official final list was not issued at the exit conference) will be communicated to the facility in writing within ten working days of the exit conference. Any discrepancies may be refuted through the Informal Review as outlined in §96.6 of this title (relating to the Informal Review Process for Intermediate Care Facilities for Persons with Mental Retardation and Related Conditions). Copies of any narratives or similar papers written to further describe the conditions will be furnished to the facility.]

(e) DADS provides the facility with a [A] clear and concise summary in nontechnical language of each licensure inspection or [~~, and/or~~] complaint investigation [~~will be provided by DHS at the time the report of contact or similar document is provided~~].

(f) The facility must submit a plan to correct cited violations to the regional director of the area in which the facility is located no later than 10 working days after the date the facility receives the final, official statement of violations. To be accepted by DADS, a plan to correct violations must state when the corrective action will be completed and must address:

(1) how the facility will accomplish corrective action for residents directly affected by the cited violation;

(2) how the facility will identify other residents who may be affected by the cited violation; and

(3) how the facility will avoid having the violation recur.

(g) If a facility fails to submit a plan to correct violations that meets the requirements of subsection (f) of this section, DADS may assess an administrative penalty against the facility in accordance with §90.236(a)(7) of this chapter (relating to Administrative Penalties).

[(f) If DHS or DHS's representative discovers any additional violations during the review of field notes or preparation of the official final list, DHS or DHS's representative will give the facility an additional exit conference regarding the additional violations.]

~~[(g) The facility must submit a plan to correct the violations to the regional director not later than the 10th calendar day after the date the facility receives the final statement of violations.]~~

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 July 21, 2008.

TRD-200803699

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 31, 2008

For further information, please call: (512) 438-3734

SUBCHAPTER H. ENFORCEMENT

40 TAC §90.236, §90.240

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Health and Safety Code, Chapter 252, which provides the Aging and Disability Services Council with the authority to make recommendations regarding rules governing licensing and regulation of intermediate care facilities for persons with mental retardation.

The amendment implements Texas Government Code, §531.0055, and Texas Human Resources Code, §252.008 and §161.021.

§90.236.Administrative Penalties.

(a) DADS [~~The Texas Department of Human Services (DHS)~~] may assess administrative penalties against a person who: [~~facility that violates the Health and Safety Code, Chapter 252, or any rule adopted under this chapter, as provided in this section.~~]

(1) violates Texas Health and Safety Code, Chapter 252, or any rule, standard, or order adopted or a license issued under such chapter;

(2) makes a false statement that the person knows or should know is false, of a material fact:

(A) on an application for issuance or renewal of a license or in documentation submitted to DADS in support of the application; or

(B) with respect to a matter under investigation by DADS;

(3) refuses to allow a representative of DADS to inspect:

(A) a book, record, or file required to be maintained by the person; or

(B) any portion of the premises of a facility;

(4) willfully interferes with the work of a representative of DADS or the enforcement of Texas Health and Safety Code, Chapter 252;

(5) willfully interferes with a representative of DADS preserving evidence of a violation of Texas Health and Safety Code, Chapter 252, or a rule, standard, or order adopted or license issued under such chapter;

(6) fails to pay a penalty assessed by DADS under Texas Health and Safety Code, Chapter 252, not later than the 10th day after the date the assessment of the penalty becomes final;

(7) fails to submit a plan of correction to DADS within 10 working days after receiving the final statement of licensing violations; or

(8) fails to notify DADS of a change in ownership before the effective date of that change of ownership.

(b) Definitions:

(1) For purposes of this section [~~chapter~~], a "violation" is defined as any noncompliance with Texas [~~the~~ ] Health and Safety Code, Chapter 252, or any rule under this chapter[~~, as provided in this section~~].

(2) For purposes of this section [~~chapter~~], "immediate and serious threat" means a situation in which there is a high probability that serious harm or injury to residents could occur at any time or has already occurred and may occur again if individuals are not protected effectively from the harm or if the threat is not removed. "Immediate and serious threat" is described in Appendix Q of the State Operations Manual, "Guidelines for Determining Immediate and Serious Threat to Patient Health and Safety."

(3) For the purposes of this section [~~chapter~~ ], "serious harm" is any condition or situation that could result in severe, temporary or permanent injury, or death, or harm to the mental or physical condition of an individual.

(4) For the purposes of this section [~~chapter~~ ], "previous history" means any violation that resulted in the recommendation of an administrative penalty documented against a [~~the~~] facility in the [~~past~~ ] 24-month period immediately preceding the citation of the violation.

(c) Failure to meet the requirements of §90.42(c) of this chapter [~~title~~] (relating to Standards for Facilities Serving Persons with Mental Retardation or Related Conditions) is a cause to assess an administrative penalty.

(d) When a violation cited by DADS [~~DHS~~] is determined to be within the scope, severity, and description of the penalty schedules as stated in subsection (m) of this section, the violation may be cause for assessment of a penalty as described in this section and as listed in subsection (m) of this section. In determining which violations warrant penalties, DADS [~~DHS~~] will consider:

(1) - (2) (No change.)

(e) (No change.)

(f) An offense is defined as a sum of the licensure violations found during an inspection. The first offense violations carry the penalty shown in the "first offense" column under subsections (l) and [~~subsection~~ ] (m) of this section. The second offense violations carry the penalty shown in the "second offense" column. The third offense violations carry the penalty shown in the "third offense" column. An offense is counted against the facility even if the facility corrected the prior violation and an administrative penalty was not actually imposed.

(g) The progression of offenses described in subsection (f) of this section applies to facilities regardless of license renewals; however, when a facility has not had an offense for a period of two years, the facility's next offense will be in the "first offense" column under subsections (l) and [~~subsection~~] (m) of this section. A suspension of a license and subsequent reinstatement does not interrupt the progression.

(h) The administrative penalty begins on the date DADS [~~DHS~~] first established the deficiency existed. Administrative penalties will not be imposed on minor infractions. Penalties will be imposed on a per diem basis for those infractions in the administrative penalty schedule, as outlined under subsection (m) of the section. If DADS [~~DHS~~] determines that a violation has occurred that will result in an administrative penalty, the penalty for a facility with fewer than 60 beds will be not less than $100 or more than $1,000 for each violation. The penalty for a facility with 60 beds or more will not be less than $100 or more than $5,000 for each violation. The total amount of the penalty assessed for a violation continuing or occurring on separate days under this subsection may not exceed $5,000 for a facility with fewer than 60 beds or $25,000 for a facility with 60 beds or more.

(i) A per diem penalty ceases on the date a violation has been corrected, and the facility:

(1) notifies DADS [~~DHS~~] in writing that the violation has been corrected; and

(2) - (3) (No change.)

(j) If DADS [~~DHS~~] determines that a violation has occurred and that an administrative penalty is proposed, DADS gives [~~will be recommended, DHS will give~~ ] written notice of the proposal to assess [ ~~recommendation to proceed with~~ ] an administrative penalty to the person designated by the facility to receive notice. The notice will include:

(1) (No change.)

(2) a statement of the amount of the proposed penalty based on the factors listed in subsections (d) , (l) and (m) of this section; and

(3) (No change.)

(k) A facility for which an administrative penalty has been proposed may file a request for a hearing with the Health and Human Services Commission. The hearing must be requested in accordance with 1 TAC §357.484 (relating to Requests for a Hearing) except, as provided by Texas Health and Safety Code, §252.066, the facility must make a written request for a hearing within 20 calendar days after the date on which the facility receives written notice of the administrative penalty. A hearing requested under this section is governed by 1 TAC Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act).

(l) Assessments for violations warranting administrative penalties for licensed facilities, for which there is no right to correct prior to administrative penalty assessment are as follows:

Figure: 40 TAC §90.236(l)

~~[(k) A facility that has been recommended to be assessed an administrative penalty has a right to request an appeal as outlined in subsection (l) of this section.]~~

~~[(l) DHS is the state agency authorized to impose administrative penalties for certain violations in the ICF/MR program.]~~

[(1) For penalties that are the result of nonpayment of a license fee for the initial license, changes of ownership, increases in bed size, license renewals, or penalties outlined in subsection (m) of this section, the facility must give DHS written consent to the penalty or make a written request for a hearing within 20 calendar days after the date on which written notice to pay an administrative penalty is received by a facility. If the facility does not make a response within the 20 calendar day period, DHS will assess the penalty.]

[(2) For penalties assessed under 1 TAC §352.8, the facility must make a written request for a hearing to DHS within 20 calendar days after the date on which written notice to pay the penalty is received by the facility.]

[(3) Failure of the facility to file a notice to request a formal hearing within 20 calendar days constitutes a waiver of the right to a hearing. Hearings will be held in accordance with the formal hearing procedures in Chapter 79 of this title (relating to Legal Services).]

(m) Assessments [~~Scope, severity, and assessments~~ ] for violations warranting administrative penalties for licensed facilities for which there is a right to correct prior to administrative penalty assessment are as follows:

Figure: 40 TAC §90.236(m)

§90.240.Right to Correct.

(a) Except as provided in subsection (b) of this section, before imposing an administrative penalty, DADS [~~The Texas Department of Human Services (DHS)~~] will provide a reasonable period of time, not less than 45 days, to correct a violation if a plan of correction is implemented. A facility may request a shorter period of time to correct the violation by submitting a specific written request for an early inspection to clear the violation. If, during the requested early inspection, DADS [~~DHS~~] finds that the correction is not satisfactory, an administrative penalty may immediately be assessed from the first day of violation. [~~This subsection does not apply to a violation that DHS determines:~~]

(b) DADS is not required to give a facility the right to correct a violation prior to assessing an administrative penalty if DADS determines that the violation:

(1) has resulted in serious harm to or death of a resident; [or]

(2) constitutes a serious threat to the health or safety of a resident; or [.]

(3) substantially limits the facility's capacity to provide care; or

(4) is described in §90.236(a)(2) - (8) of this subchapter (relating to Administrative Penalties).

(c) [~~(b)~~] DADS [~~DHS~~] may not assess an administrative penalty for a minor violation if the facility corrects the violation not later than the 46th day after the facility receives notice of the violation.

(d) [~~(c)~~] If the facility reports to DADS [~~DHS~~] that the violation has been corrected, DADS [~~DHS~~] will inspect the correction or take any other steps necessary to confirm that the violation has been corrected and notify the facility that:

(1) the correction is satisfactory and a penalty is not assessed; or

(2) the correction is not satisfactory and a penalty is recommended.

(e) [~~(d)~~] If the facility wishes to appeal the administrative penalty, the facility must file a notice to request a hearing on the violation or penalty no later than the 20th calendar day after the date on which the notice to pay an administrative penalty is received.

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 July 21, 2008.

TRD-200803700

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 31, 2008

For further information, please call: (512) 438-3734

CHAPTER 92. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), new Subchapter A, consisting of §§92.1 - 92.6, concerning purpose and application, definitions, types of assisted living facilities, license fees, health care professional, and general characteristics of residents; new Subchapter B, consisting of §§92.11 - 92.20, concerning criteria for licensing, general application requirements, time periods for processing all types of license applications, initial application procedures and requirements, renewal procedures and qualifications, change of ownership, relocation, increase in capacity, decrease in capacity, and provisional license; new §92.54, concerning advertisements, solicitations, and promotional material; and new Subchapter H, Division 9, consisting of §92.551, concerning administrative penalties; and proposes the repeal of Subchapter A, consisting of §§92.2 - 92.4, concerning basis and scope, chapter definitions, and types of assisted living facilities; Subchapter B, consisting of §§92.10 - 92.23, concerning licenses and licensing application procedures for assisted living facilities; Subchapter H, Division 9, consisting of §§92.551 - 92.595, concerning administrative penalties; and Subchapter H, Division 10, consisting of §§92.601 - 92.616, concerning enforcement, in Chapter 92, Licensing Standards for Assisted Living Facilities.

BACKGROUND AND PURPOSE

The purpose of the new sections and repeal is, in part, to implement some of the provisions of Senate Bill (SB) 1318, 80th Legislature, Regular Session, 2007, which amended the Texas Health and Safety Code, Chapter 247. The rules are being rewritten to update agency names, rules citations, and definitions; clarify criteria for licensing; reflect current application procedures; and reorganize the rules to place them in a more logical order.

SECTION-BY-SECTION SUMMARY

Proposed new §92.1 states the purpose of the chapter.

Proposed new §92.2 defines words and terms commonly used throughout the chapter.

Proposed new §92.3 provides the criteria used to classify licensure types for assisted living facilities (ALFs). The four types of licenses are Type A - C and Type E. An assisted living facility's license type is based on resident capability, facility services, or both.

Proposed new §92.4 establishes license fees based on the type of ALF and whether a one-year or two-year license is sought. The new section also sets the rates for a late renewal fee, trust fund fee, and plan review fee. New §92.4 also provides general information regarding how to pay the required fees.

Proposed new §92.5 allows a resident to contract with persons or agencies outside the facility for health care services, including services similar to those available in a nursing facility.

Proposed new §92.6 provides some of the characteristics of a resident in an ALF.

Proposed new §92.11 sets the criteria an ALF must meet in order to be licensed.

Proposed new §92.12 provides the basic requirements for application submission for licensure of an ALF.

Proposed new §92.13 provides the time periods for processing ALF license applications. The new section also provides that an applicant can request reimbursement of license fees paid with the submission of an application, when an application is not processed in the time period specified by DADS.

Proposed new §92.14 provides instructions regarding application procedures and requirements for an initial ALF license.

Proposed new §92.15 provides the procedures and qualifications an applicant must meet to renew an ALF license.

Proposed new §92.16 states that an ALF must notify DADS of a change of ownership before the anticipated effective date of the change. The new section allows DADS to assess an administrative penalty against a license holder who does not comply with the requirements of the section.

Proposed new §92.17 provides the requirements for relocation of an ALF's residents when a facility closes and residents have to be moved to a different location.

Proposed new §92.18 requires an ALF license holder to apply for, pay for, and obtain approval from DADS for an increase in a facility's licensed capacity.

Proposed new §92.19 states that an ALF license holder must notify DADS, in writing, of the desire to decrease the facility's licensed capacity.

Proposed new 92.20 details the circumstances under which DADS may issue a provisional license.

Proposed new §92.54 states that an ALF's state-issued facility identification number must be used in all marketing materials.

Proposed new §92.551 provides the violations for which DADS may assess an administrative penalty against an ALF license holder. The new section also provides the criteria DADS considers when deciding the amount of the administrative penalty. A new schedule of administrative penalties is included in the new section. The schedule lists the violations for which DADS may assess an administrative penalty with the corresponding fees. The new section allows for an opportunity to correct certain violations and avoid the assessment of an administrative penalty.

The repeal of §§92.2 - 92.4 deletes the existing rule sections, which are replaced by new Subchapter A. The repeal of §§92.10 - 92.23 deletes the existing rule sections, which are replaced by new Subchapter B. The repeal of §§92.551 - 92.595 and §§92.601 - 92.616 deletes Subchapter H, Divisions 9 and 10, which are replaced by new Subchapter H, Division 9.

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, there are no significant foreseeable implications relating to costs or revenues of state and local government.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed new sections and repeal may have an adverse economic effect on small businesses and micro-businesses because the businesses that do not comply with the rule are subject to a late fee in the amount equal to one-half of the basic application fee. Also, if a facility fails to notify DADS of a change of ownership before the effective date of the change, the facility may be charged an administrative penalty.

DADS estimates that the number of small businesses and micro-businesses subject to the proposed new sections and repeal is less than 1,242. This estimate is based on DADS records which indicate that of the 1,463 licensed ALFs, 1,242 are formed for the purpose of making a profit, one of the requirements for being a small or micro-business. The projected economic impact for a small business and micro-business is a possible late fee ranging from $25 to $750 and possible administrative penalty ranging from $100 to $1000.

Several alternatives were considered in determining how to accomplish the objectives of the proposed rules while minimizing the adverse economic effect on small businesses and micro-businesses. Statute gives DADS the option of assessing a late fee if an assisted living facility does not comply with the rules related to the submission of a renewal application. Therefore, DADS considered not imposing a late fee against a facility that does not comply with the proposed rule. DADS did not consider this option consistent with its responsibility as a regulatory agency and, specifically, determined that this option would not adequately address its needs to have a timely renewal application submitted. DADS may also assess an administrative penalty against a facility that fails to notify DADS of a change of ownership. DADS considered the previous option of not imposing a penalty against a facility for failure to notify DADS of a change of ownership before the effective date of the change. DADS did not consider this option consistent with its responsibility as a regulatory agency and, specifically, determined that this option would not adequately address its needs of receiving a timely notification before a change of ownership occurs. DADS considered the use of a maximum flat fee and penalty structure that did not take provider bed capacity into consideration but determined that this structure would disproportionately impact smaller providers.

PUBLIC BENEFIT AND COSTS

Veronda Durden, DADS Assistant Commissioner for Regulatory 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 DADS rules will comply with statutory law. The public will also benefit from the rules being easier to read and follow.

Ms. Durden anticipates that there may be an economic cost to persons who are required to comply with the new sections and repeal, because a late fee or administrative penalty may be assessed for noncompliance. The new sections and repeal will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Hannah Ndika at (512) 438-2133 in DADS' Regulatory Services Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-015, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 015" in the subject line.

SUBCHAPTER A. INTRODUCTION

40 TAC §§92.1 - 92.6

STATUTORY AUTHORITY

The new sections are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Health and Safety Code, Chapter 247, which authorizes DADS to license and regulate assisted living facilities.

The new sections implement Texas Government Code, §531.0055; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §§247.001 - 247.069.

§92.1.Purpose and Application.

(a) The purpose of this chapter is to establish:

(1) the criteria and application procedure for licensing an assisted living facility;

(2) the licensing standards with which an assisted living facility must comply and that serve as a basis for licensure inspections, including:

(A) operation and resident care standards; and

(B) facility construction standards;

(3) the inspections and investigations DADS staff may conduct as a regulatory authority; and

(4) enforcement actions DADS may take against an assisted living facility.

(b) This chapter applies to an assisted living facility licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 247. Assisted living services are driven by a philosophy that emphasizes personal dignity and autonomy to age in place in a residential setting while receiving increasing or decreasing levels of services as the person's needs change.

§92.2.Definitions.

The following words and terms, when used in this chapter, have the following meaning, unless the context clearly indicates otherwise.

(1) Accreditation commission--Has the meaning given in Texas Health and Safety Code, §247.032.

(2) Advance directive--Has the meaning given in Texas Health and Safety Code, §166.002.

(3) Affiliate--With respect to:

(A) a partnership, each partner thereof;

(B) a corporation, each officer, director, principal stockholder, subsidiary, and each person with a disclosable interest, as the term is defined in this section; and

(i) said person's spouse;

(ii) each partnership and each partner thereof of which said person or any affiliate of said person is a partner; and

(iii) each corporation in which said person is an officer, director, principal stockholder, or person with a disclosable interest.

(4) Alzheimer's facility--A type B assisted living facility that is certified to provide specialized services to residents with Alzheimer's or a related condition.

(5) Applicant--A person applying for an assisted living license under Texas Health and Safety Code, Chapter 247.

(6) Attendant--A facility employee who provides direct care to residents. This employee may serve other functions, including cook, janitor, porter, maid, laundry worker, security personnel, bookkeeper, activity director and manager.

(7) Authorized electronic monitoring (AEM)--The placement of an electronic monitoring device in a resident's room and using the device to make tapes or recordings after making a request to the facility to allow electronic monitoring.

(8) Bedfast--A resident who is permanently confined to a bed.

(9) Behavioral emergency--Has the meaning given in §92.41(p)(2) of this chapter (relating to Standards for Type A, Type B, and Type E Assisted Living Facilities).

(10) Change of ownership--A change of ownership is:

(A) a change of sole proprietorship that is licensed to operate a facility;

(B) a change of 50 percent or more in the ownership of the business organization that is licensed to operate the facility;

(D) relinquishment by the license holder of the operation of the facility.

(11) Co-mingles--The laundering of apparel or linens of two or more individuals together.

(12) Controlling person--A person with the ability, acting alone or with others, to directly or indirectly influence, direct, or cause the direction of the management, expenditure of money, or policies of an assisted living facility or other person. A controlling person includes:

(A) a management company, landlord, or other business entity that operates or contracts with others for the operation of an assisted living facility;

(B) any person who is a controlling person of a management company or other business entity that operates an assisted living facility or that contracts with another person for the operation of an assisted living facility; and

(C) any other individual who, because of a personal, familial, or other relationship with the owner, manager, landlord, tenant, or provider of an assisted living facility, is in a position of actual control or authority with respect to the facility, without regard to whether the individual is formally named as an owner, manager, director, officer, provider, consultant, contractor, or employee of the facility, except an employee, lender, secured creditor, landlord, or other person who does not exercise formal or actual influence or control over the operation of an assisted living facility.

(13) Covert electronic monitoring--The placement and use of an electronic monitoring device that is not open and obvious, and the facility and DADS have not been informed about the device by the resident, by a person who placed the device in the room, or by a person who uses the device.

(14) DADS--The Department of Aging and Disability Services.

(15) DHS--Formerly, this term referred to the Texas Department of Human Services; it now refers to DADS.

(16) Dietitian--A person who currently holds a license or provisional license issued by the Texas State Board of Examiners of Dietitians.

(17) Disclosure statement--A DADS form for prospective residents or their legally authorized representatives that a facility must complete. The form contains information regarding the preadmission, admission, and discharge process; resident assessment and service plans; staffing patterns; the physical environment of the facility; resident activities; and facility services.

(18) Electronic monitoring device--Video surveillance cameras and audio devices installed in a resident's room, designed to acquire communications or other sounds that occur in the room. An electronic, mechanical, or other device used specifically for the nonconsensual interception of wire or electronic communication is excluded from this definition.

(19) Facility--An entity required to be licensed under the Assisted Living Facility Licensing Act, Texas Health and Safety Code, Chapter 247.

(20) Fire suppression authority--The paid or volunteer fire-fighting organization or tactical unit that is responsible for fire suppression operations and related duties once a fire incident occurs within its jurisdiction.

(21) Governmental unit--The state or any county, municipality, or other political subdivision, or any department, division, board, or other agency of any of the foregoing.

(22) Health care professional--An individual licensed, certified, or otherwise authorized to administer health care, for profit or otherwise, in the ordinary course of business or professional practice. The term includes a physician, registered nurse, licensed vocational nurse, licensed dietitian, physical therapist, and occupational therapist.

(23) Immediate threat--There is considered to be an immediate threat to the health or safety of a resident, or a situation is considered to put the health or safety of a resident in immediate jeopardy, if there is a situation in which an assisted living facility's noncompliance with one or more requirements of licensure has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.

(24) Immediately available--The capacity of facility staff to immediately respond to an emergency after being notified through a communication or alarm system. The staff are to be no more than 600 feet from the farthest resident.

(25) Large facility--A facility licensed for 17 or more residents.

(26) Legally authorized representative--A person authorized by law to act on behalf of a person with regard to a matter described in this chapter, and may include a parent, guardian, or managing conservator of a minor, or the guardian of an adult.

(27) Management services--Services provided under contract between the owner of a facility and a person to provide for the operation of a facility, including administration, staffing, maintenance, or delivery of resident services. Management services do not include contracts solely for maintenance, laundry, or food services.

(28) Manager--The individual in charge of the day-to-day operation of the facility.

(29) Medication--

(A) Medication is any substance:

(i) recognized as a drug in the official United States Pharmacopoeia, Official Homeopathic Pharmacopoeia of the United States, Texas Drug Code Index or official National Formulary, or any supplement to any of these official documents;

(ii) intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease;

(iii) other than food intended to affect the structure or any function of the body; and

(iv) intended for use as a component of any substance specified in this definition.

(B) Medication includes both prescription and over-the-counter medication, unless otherwise specified.

(30) Medication administration--The direct application of a medication or drug to the body of a resident by an individual legally allowed to administer medication in the state of Texas.

(31) Medication assistance or supervision--The assistance or supervision of the medication regimen by facility staff. Refer to §92.41(j) of this chapter.

(32) Medication (self-administration)--The capability of a resident to administer the resident's own medication or treatments without assistance from the facility staff.

(33) NFPA 101--The 1988 publication titled "NFPA 101 Life Safety Code" published by the National Fire Protection Association, Inc., 1 Batterymarch Park, Quincy, Massachusetts 02169.

(34) Ombudsman--An advocate who is a certified representative, staff member, or volunteer of the Office of the State Long-Term Care Ombudsman.

(35) Outside resource--A home and community support services agency licensed under Texas Health and Safety Code, Chapter 142, or a health care professional not employed by the facility.

(36) Person--Any individual, firm, partnership, corporation, association, or joint stock association, and the legal successor thereof.

(37) Person with a disclosable interest--Any person who owns 5.0 percent interest in any corporation, partnership, or other business entity that is required to be licensed under Texas Health and Safety Code, Chapter 247. A person with a disclosable interest does not include a bank, savings and loan, savings bank, trust company, building and loan association, credit union, individual loan and thrift company, investment banking firm, or insurance company unless such entity participates in the management of the facility.

(38) Personal care services--Assistance with meals, dressing, movement, bathing, or other personal needs or maintenance; the administration of medication or the assistance with or supervision of medication; or general supervision or oversight of the physical and mental well-being of a person who needs assistance to maintain a private and independent residence in the facility or who needs assistance to manage his or her personal life, regardless of whether a guardian has been appointed for the person.

(39) Physician--A practitioner licensed by the Texas Medical Board.

(40) Practitioner--An individual who is currently licensed in a state in which the individual practices as a physician, dentist, podiatrist, or a physician assistant; or a registered nurse approved by the Texas Board of Nursing to practice as an advanced practice nurse.

(41) Qualified medical personnel--An individual who is licensed, certified, or otherwise authorized to administer health care. The term includes a physician, registered nurse, and licensed vocational nurse.

(42) Resident--An individual accepted for care in a facility.

(43) Respite--The provision by a facility of room, board, and care at the level ordinarily provided for permanent residents of the facility to a person for not more than 60 days for each stay in the facility.

(44) Restraint hold--

(A) A manual method, except for physical guidance or prompting of brief duration, used to restrict:

(i) free movement or normal functioning of all or a portion of a resident's body; or

(ii) normal access by a resident to a portion of the resident's body.

(B) Physical guidance or prompting of brief duration becomes a restraint if the resident resists the guidance or prompting.

(45) Restraints--Chemical restraints are psychoactive drugs administered for the purposes of discipline or convenience and are not required to treat the resident's medical symptoms. Physical restraints are any manual method, or physical or mechanical device, material, or equipment attached or adjacent to the resident that restricts freedom of movement. Physical restraints include restraint holds.

(46) Safety--Protection from injury or loss of life due to such conditions as fire, electrical hazard, unsafe building or site conditions, and the hazardous presence of toxic fumes and materials.

(47) Seclusion--The involuntary separation of a resident from other residents and the placement of the resident alone in an area from which the resident is prevented from leaving.

(48) Service plan--A written description of the medical care or the supervision and nonmedical care needed by a resident.

(49) Short-term acute episode--An illness of less than 30 days duration.

(50) Small facility--A facility licensed for 16 or fewer residents.

(51) Staff--Employees of an assisted living facility.

(52) Standards--The minimum conditions, requirements, and criteria established in this chapter with which a facility must comply to be licensed under this chapter.

(53) Terminal condition--A medical diagnosis, certified by a physician, of an illness that will result in death in six months or less.

(54) Universal precautions--An approach to infection control in which blood, any body fluids visibly contaminated with blood, and all body fluids in situations where it is difficult or impossible to differentiate between body fluids are treated as if known to be infectious for HIV, hepatitis B, and other blood-borne pathogens.

(55) Working day--Any 24-hour period, Monday through Friday, excluding state and federal holidays.

§92.3.Types of Assisted Living Facilities.

(a) Basis for licensure type. An assisted living facility must be licensed as a Type A, Type B, Type C, or Type E facility. A facility's licensure type is based on the capability of the residents to evacuate the facility or the types of services the facility provides, or both, as described in this section.

(b) Type A. In a Type A facility, a resident:

(1) must be physically and mentally capable of evacuating the facility without physical assistance from staff, which may include an individual who is mobile, although non-ambulatory, such as an individual who uses a wheelchair or an electric cart, and has the capacity to transfer and evacuate himself or herself in an emergency;

(2) does not require routine attendance during nighttime sleeping hours; and

(3) must be capable of following directions under emergency conditions.

(1) require staff assistance to evacuate;

(2) require attendance during nighttime sleeping hours;

(3) be incapable of following directions under emergency conditions; and

(4) require assistance in transferring to and from a wheelchair, but must not be permanently bedfast.

(d) Type C. A Type C facility is a four-bed facility that:

(1) has an active contract with DADS to provide adult foster care services as described in Chapter 48, Subchapter K of this title (relating to Minimum Standards for Adult Foster Care); and

(2) must be contracted with DADS to provide adult foster care services before it can be licensed.

(e) Type E.

(1) Limitation on types of residents. In a Type E facility, a resident:

(A) must be physically and mentally capable of evacuating the facility without physical assistance from staff, which may include an individual who is mobile, although non-ambulatory, such as an individual who uses a wheelchair or an electric cart and has the capacity to transfer and evacuate himself or herself in an emergency;

(B) must not require routine attendance during nighttime sleeping hours; and

(2) Limitation on types of services. Notwithstanding any other provision in this chapter, a Type E facility:

(A) provides only:

(i) medication supervision, in accordance with Texas Health and Safety Code, §247.002(5)(B); and

(ii) general supervision of residents' welfare, in accordance with Texas Health and Safety Code §247.002(5)(C); and

(B) must not provide substantial assistance with the activities of daily living, as described by Texas Health and Safety Code §247.002(5)(A) (assistance with meals, dressing, movement, bathing, or other personal needs or maintenance).

§92.4.License Fees.

(a) Basic fees.

(1) Type A, Type B, and Type E. The license fee is $200, plus $10 for each bed for which a license is sought, with a maximum of $1,500. The license fee for a one-year license issued in accordance with §92.15(b)(1) of this subchapter (relating to Renewal Procedures and Qualifications) is $100, plus $5 for each bed for which a license is sought, with a maximum of $750. The fee must be paid with each initial application and with each renewal application.

(2) Type C. The license fee is $100. The license fee for a one-year license issued in accordance with §92.15(b)(1) of this subchapter is $50. The fee must be paid with each initial application and with each renewal application.

(3) Provisional license. The license fee is $75, plus $5 for each bed for which a license is sought, with a maximum of $750.

(4) Increase in capacity. An approved increase in capacity is subject to an additional fee of $10 for each bed.

(b) Late renewal fee. An applicant that submits an application for license renewal later than the 45th day before the expiration date of the license must pay a late fee of an amount equal to one-half of the basic fee required in accordance with subsection (a)(1) and (2) of this section.

(c) Alzheimer's certification. In addition to the basic license fee described in subsection (a) of this section, a facility that applies for certification as an Alzheimer's facility under Subchapter C of this chapter (relating to Standards for Licensure) must pay an additional license fee. The additional fee is $200, except the additional fee for a facility renewing its Alzheimer's certification in accordance with §92.51(f)(1) of this chapter (relating to Licensure of Facilities for Persons with Alzheimer's Disease) is $100 for the first renewal beginning September 1, 2008.

(d) Trust fund fee.

(1) If the amount in the assisted living facility trust fund, established under Texas Health and Safety Code, Chapter 242, Subchapter D, and Chapter 247, §247.003(b), is less than $500,000, DADS collects an annual fee from each facility. The fee is based on a monetary amount specified for each licensed unit of capacity or bed space, and is in an amount sufficient to provide not more than $500,000 in the trust fund. When the trust fund fee is collected, DADS sends written notice to each facility stating the amount of the fee and the date the fee is due. A facility must pay the amount of the fee within 90 days after the date the fee is due.

(2) DADS may charge and collect a trust fund fee more than once a year if necessary to ensure that the amount in the assisted living facility trust fund is sufficient to make the disbursements required under Texas Health and Safety Code, §242.0965. When this subsequent trust fund fee is collected, DADS sends written notice to each facility stating the amount of the fee and the date the fee is due. A facility must pay the amount of the fee within 90 days after the date the fee is due.

(3) Failure to pay the trust fund fee within 90 days after the date the fee is due as stated on the written notice described in paragraphs (1) and (2) of this subsection may result in an assessment of an administrative penalty under the administrative penalties described in Subchapter H, Division 9 of this chapter (relating to Administrative Penalties).

(e) Plan review fee. An applicant may submit building plans for a new building, an addition, the conversion of a building not licensed, or for the remodeling of an existing licensed facility for review by DADS architectural staff. If the applicant chooses to submit building plans for review, the applicant must pay a fee for the plan review according to the following schedule:

Figure: 40 TAC §92.4(e)

(f) Payment of fees. Payment of fees must be by check, cashier's check, or money order made payable to the Department of Aging and Disability Services. All fees are nonrefundable, except as provided in Texas Government Code, Chapter 2005, and in §92.13(d) of this chapter (relating to Time Periods for Processing All Types of License Applications).

§92.5.Health Care Professional.

(a) A health care professional, may provide services to a resident within the professional's scope of practice; however, the facility must not provide ongoing services to a resident that are comparable to the services available in a nursing facility licensed under Texas Health and Safety Code, Chapter 242.

(b) A resident may contract with outside resources to have health care services delivered to the resident at the facility.

§92.6.General Characteristics of a Resident.

This section describes some general characteristics of a resident in an assisted living facility. A resident may:

(1) exhibit symptoms of mental or emotional disturbance, but is not considered at risk of imminent harm to self or others;

(2) need assistance with movement;

(3) require assistance with bathing, dressing, and grooming;

(4) require assistance with routine skin care, such as application of lotions or treatment of minor cuts and burns;

(5) need reminders to encourage toilet routine and prevent incontinence;

(6) require temporary services by professional personnel;

(7) need assistance with medication, supervision of self-medication, or administration of medication;

(8) require encouragement to eat or monitoring due to social or psychological reasons of temporary illness;

(9) be hearing impaired or speech impaired;

(10) be incontinent without pressure sores;

(11) require an established therapeutic diet;

(12) require self-help devices; and

(13) need assistance with meals, which may include feeding.

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 July 21, 2008.

TRD-200803701

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 31, 2008

For further information, please call: (512) 438-3734

SUBCHAPTER B. APPLICATION PROCEDURES

40 TAC §§92.11 - 92.20, 92.54

STATUTORY AUTHORITY

The new sections are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Health and Safety Code, Chapter 247, which authorizes DADS to license and regulate assisted living facilities.

The new sections implement Texas Government Code, §531.0055; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §§247.001 - 247.069.

§92.11.Criteria for Licensing.

(a) A person must be licensed to establish or operate an assisted living facility in Texas.

(1) An assisted living facility is an establishment that:

(A) furnishes, in one or more facilities, food and shelter to four or more persons who are unrelated to the proprietor of the establishment; and

(B) provides personal care services.

(2) DADS considers one or more facilities to be part of the same establishment and, therefore, subject to licensure as an assisted living facility, based on the following factors:

(A) common ownership;

(B) physical proximity;

(D) any public appearance of joint operations or of a relationship between the facilities.

(3) The presence or absence of any one factor in paragraph (2) of this subsection is not conclusive.

(b) To obtain a license, a person must follow the application requirements in this subchapter and meet the criteria for a license.

(c) An applicant must affirmatively show that the applicant, license holder, controlling person, and any person required to submit background and qualification information meet the criteria and eligibility for licensing, in accordance with this section, and:

(1) affirmatively show that:

(A) the building in which the facility is housed:

(i) meets local fire ordinances;

(ii) is approved by the local fire authority; and

(iii) meets DADS licensing standards in accordance with Subchapter D of this chapter (relating to Facility Construction); and

(B) operation of the facility meets DADS licensing standards based on an on-site health inspection by DADS staff, which must include observation of the care of a resident; or

(2) affirmatively show that the facility meets the standards for accreditation based on an on-site accreditation survey by the accreditation commission.

(d) An applicant that chooses the option allowed in subsection (c)(2) of this section must contact DADS to determine which accreditation commissions are available to meet the requirements of subsection (c)(2) of this section.

(e) DADS denies an application for an initial license or for the renewal of a license if:

(1) the applicant, license holder, controlling person, or any person required to submit background and qualification information has been debarred or excluded from the Medicare or Medicaid programs by the federal government or a state;

(2) a court has issued an injunction prohibiting the applicant, license holder, controlling person, or any person required to submit background and qualification information from operating a facility; or

(3) during the five years preceding the date of the application, a license to operate a health care facility, long-term care facility, assisted living facility, or similar facility in any state held by the applicant, license holder, controlling person, or any person required to submit background and qualification information has been revoked.

(f) A license holder or controlling person who operates a nursing facility or an assisted living facility for which a trustee was appointed and for which emergency assistance funds, other than funds to pay the expenses of the trustee, were used is subject to exclusion from eligibility for:

(1) the issuance of an initial license for a facility for which the person has not previously held a license; and

(2) the renewal of the license of the facility for which the trustee was appointed.

(g) DADS may deny an application for an initial license or refuse to renew a license if an applicant, license holder, controlling person, or any person required to submit background and qualification information:

(1) violates Texas Health and Safety Code, Chapter 247; a section, standard or order adopted under Chapter 247; or a license issued under Chapter 247 in either a repeated or substantial manner;

(2) commits an act described in §92.551(a)(2)-(7) of this chapter (relating to Administrative Penalties);

(3) aids, abets, or permits a substantial violation described in paragraphs (2) - (3) of this subsection about which the person had or should have had knowledge;

(4) fails to provide the required information, facts, or references;

(5) provides the following false or fraudulent information:

(A) knowingly submits false or intentionally misleading statements to DADS;

(B) uses subterfuge or other evasive means of filing an application for licensure;

(D) knowingly conceals a material fact related to licensure; or

(E) is responsible for fraud;

(6) fails to pay the following fees, taxes, and assessments when due:

(A) license fees as described in §92.4 of this chapter (relating to License Fees); or

(B) franchise taxes, if applicable;

(7) during the five years preceding the date of the application, has a history in any state or other jurisdiction of any of the following:

(A) operation of a facility that has been decertified or has had its contract canceled under the Medicare or Medicaid program;

(B) federal or state long-term care facility, assisted living facility, or similar facility sanctions or penalties, including monetary penalties, involuntary downgrading of the status of a facility license, proposals to decertify, directed plans of correction, or the denial of payment for new Medicaid admissions;

(C) unsatisfied final judgments, excluding judgments wholly unrelated to the provision of care rendered in long-term care facilities;

(D) eviction involving any property or space used as a facility; or

(E) suspension of a license to operate a health care facility, long-term care facility, assisted living facility, or a similar facility; or

(8) violates Texas Health and Safety Code, §247.021 by operating a facility without a license.

(h) For the grounds for denial of an application for an initial license or an application for renewal of a license set out in subsection (g)(8) of this section, DADS considers exculpatory information provided by an applicant, a license holder, a person with a disclosable interest, or a manager and may grant a license if DADS finds the applicant, license holder, person with a disclosable interest, affiliate, or manager able to comply with the rules in this chapter.

(i) For the grounds for denial of an application for an initial license or an application for renewal of a license set out in subsections (e) and (g)(8) of this section, DADS considers only final actions. An action is final when routine administrative and judicial remedies are exhausted. An applicant must disclose all actions, whether pending or final.

(j) If an applicant owns multiple facilities, DADS examines the overall record of compliance in all of the applicant's facilities. An overall record poor enough to deny issuance of a new license does not preclude the renewal of a license of a facility with a satisfactory record.

§92.12.General Application Requirements.

(a) An application must be made on the form prescribed by and available from DADS.

(b) An applicant must complete the application in accordance with the instructions provided with the application. An application must be signed, dated, and notarized, and must contain the applicable license fee as described in §92.4 of this chapter (relating to License Fees).

(c) An application must include the written approval of the local fire authority that the facility and its operations meet local fire ordinances.

(d) If an applicant decides not to continue the application process for a license after submitting an application and license fee, the applicant must submit to DADS a written request to withdraw the application. DADS does not refund the license fee for an application that is withdrawn, except as provided in §92.13(d) of this subchapter (relating to Time Periods for Processing All Types of License Applications).

§92.13.Time Periods for Processing All Types of License Applications.

(a) DADS reviews an application for a license within 30 days after the date DADS' Licensing and Credentialing Section receives the application and notifies the applicant if additional information is needed to complete the application.

(b) DADS denies an application that remains incomplete 120 days after the date that DADS' Licensing and Credentialing Section receives the application.

(c) DADS issues a license within 30 days after DADS determines that the applicant and the facility have met all licensure requirements referenced in §92.14 of this subchapter (relating to Initial License Application Procedures and Requirements) or §92.15 of this subchapter (relating to Renewal Procedures and Qualification), as applicable.

(d) If DADS does not process an application in the time period stated, the applicant has a right to make a request to the program director for reimbursement of the license fees paid with the application.

(1) If the program director does not agree that the established time period has been violated or finds that good cause existed for exceeding the established time period, the program director denies the request.

(2) Good cause for exceeding the established time period exists if:

(A) the number of applications to be processed exceeds by 15 percent or more the number processed in the same calendar quarter of the preceding year;

(B) DADS must rely on another public or private entity to process all or a part of the application received by DADS, and the delay is caused by that entity; or

(3) If the request for reimbursement is denied, the applicant may appeal to the DADS commissioner for resolution of the dispute. The applicant must send a written statement to the DADS commissioner describing the request for reimbursement and the reason for the request. The DADS commissioner will make a timely decision concerning the appeal and notify the applicant in writing of the decision.

§92.14.Initial License Application Procedures and Requirements.

(a) An applicant must complete the DADS pre-licensure training course before submitting an application for an initial license. An applicant that is currently licensed under Texas Health and Safety Code, Chapter 247 is exempt from this requirement.

(b) An applicant for an initial license must file an application in accordance with §92.12 of this subchapter (relating to General Application Requirements) and include the fees required in §92.4 of this chapter (relating to License Fees).

(c) DADS reviews an application for an initial license within 30 days after the date DADS' Licensing and Credentialing Section receives the application and notifies the applicant if additional information is needed to complete the application.

(d) The applicant must send written notice to DADS indicating that the facility is ready for a Life Safety Code (LSC) inspection. The written notice must be sent with the application or within 120 days after DADS' Licensing and Credentialing Section receives the application. After DADS has received the written notice and the applicant has satisfied the application filing requirements in §92.11 of this subchapter (relating to Criteria for Licensing) and §92.12 of this subchapter, DADS staff conduct an on-site LSC inspection of the facility to determine if the facility meets the licensure requirements in Subchapter D of this chapter (relating to Facility Construction).

(e) If the facility fails to meet the licensure requirements within 120 days after the initial LSC inspection, DADS denies the application for a license.

(f) After a facility has met the licensure requirements in Subchapter D of this chapter and has admitted at least one but no more than three residents, the applicant must send a written notice to DADS indicating the facility is ready for a health inspection.

(1) DADS staff conduct an on-site health inspection to determine if the facility meets the licensure requirements for standards of operation and resident care in Subchapter C of this chapter (relating to Standards for Licensure).

(2) If the facility fails to meet the licensure requirements for standards of operation and resident care within 120 days after the initial health inspection, DADS denies the application for a license.

(g) DADS issues a license within 30 days after DADS determines that the applicant and the facility have met the licensure requirements of this section. The issuance of a license constitutes DADS' official written notice to the facility of the approval of the application.

(h) DADS may deny an application for an initial license if the applicant, controlling person, or any person required to submit background and qualification information fails to meet the criteria for a license established in §92.11 of this subchapter.

(i) If DADS denies an application for an initial license, DADS sends the applicant a written notice of the denial and informs the applicant of the applicant's right to request an administrative hearing to appeal the denial. The administrative hearing is held in accordance with Texas Health and Human Services Commission rules at 1 TAC Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act).

§92.15.Renewal Procedures and Qualifications.

(a) A license issued under this chapter:

(1) expires two years after the date issued, except as provided by subsection (b) of this section;

(2) must be renewed before the license expiration date; and

(3) is not automatically renewed.

(b) A facility must submit an application for license renewal and a renewal license will be valid as follows:

(1) For two years beginning September 1, 2008, a facility with a facility identification number that ends in an odd number (1, 3, 5, 7, or 9) must submit an application to renew its license before the expiration date on the license in accordance with this section. The facility's first renewal license issued beginning September 1, 2008, is valid for one year, and subsequent renewal licenses are valid for two years.

(2) A facility with a facility identification number that ends in an even number (0, 2, 4, 6, or 8) must submit an application to renew its license before the expiration date on the license in accordance with this section. The facility's renewal licenses are valid for two years.

(c) An application for renewal must comply with the requirements of §92.12 of this subchapter (relating to General Application Requirements) and §92.13 of this subchapter (relating to Time Periods for Processing All Types of License Applications). The submission of a license fee alone does not constitute an application for renewal.

(d) To renew a license, a license holder must file an application for renewal with DADS before the expiration date. DADS considers an application for renewal has met the filing deadline if the license holder submits to DADS:

(1) a complete application for renewal no later than 45 days before the expiration of the current license;

(2) an incomplete application for renewal, with a letter explaining the circumstances that prevented the inclusion of the missing information, and DADS receives the incomplete application and the letter no later than 45 days before the expiration of the current license; or

(3) an application for renewal during the 45-day period ending on the date the current license expires and pays a late renewal fee in accordance with §92.4(b) of this chapter (relating to License Fees).

(e) If the application is postmarked on or before the filing deadline, the application is considered to be timely filed if it is received in DADS' Licensing and Credentialing Section, Regulatory Services Division, within 15 days after the date of the postmark, or within 30 days after the date of the postmark and the license holder proves to the satisfaction of DADS that the delay was due to the shipper. It is the license holder's responsibility to ensure that the application is timely received by DADS.

(f) For purposes of Texas Government Code, §2001.054, DADS considers that an individual has filed a timely and sufficient application for the renewal of a license if the license holder's application has met the filing deadlines in subsections (d) and (e) of this section. Failure to file a timely and sufficient application will result in the expiration of the license.

(g) An application for renewal filed after the expiration date of the license is considered to be an application for an initial license and must comply with the requirements for an initial license in §92.14 of this subchapter (relating to Initial License Application Procedures and Requirements).

(h) DADS reviews an application for a renewal license within 30 days after the date DADS' Licensing and Credentialing Section receives the application and notifies the applicant if additional information is needed to complete the application.

(i) A license holder applying for a license renewal must affirmatively show that the facility meets DADS licensing standards based on an on-site inspection by DADS, which must include an observation of the care of a resident.

(j) If an applicant is relying on §92.11(c)(2) of this subchapter (relating to Criteria for Licensing) to comply with the requirements for licensure, the application for the renewal of a license must include a copy of the license holder's required accreditation report from the accreditation commission.

(k) DADS may pend action on an application for the renewal of a license for up to six months if the facility has not met licensure requirements during an on-site inspection.

(l) The issuance of a license constitutes DADS' official written notice to the facility of the approval of the application.

(m) DADS may deny an application for the renewal of a license if the applicant, controlling person, or any person required to submit background and qualification information fails to meet the criteria for a license established in §92.11 of this subchapter.

(n) Before denying an application for renewal of a license, DADS gives the license holder:

(1) notice by personal service or by registered or certified mail of the facts or conduct alleged to warrant the proposed action; and

(2) an opportunity to show compliance with all requirements of law for the retention of the license.

(o) To request an opportunity to show compliance, the license holder must send its written request to the director of the Enforcement Section, Regulatory Services Division. The request must:

(1) be postmarked within 10 days after the date of DADS' notice and be received in the office of the director of the Enforcement Section, Regulatory Services Division, within 10 days after the date of the postmark; and

(2) contain specific documentation refuting DADS' allegations.

(p) The opportunity to show compliance is limited to a review of documentation submitted by the license holder and information DADS used as the basis for its proposed action and is not conducted as an adversary hearing. DADS gives the license holder a written affirmation or reversal of the proposed action.

(q) If DADS denies an application for the renewal of a license, the applicant may request:

(1) an informal reconsideration by the Health and Human Services Commission; and

(2) an administrative hearing to appeal the denial.

§92.16.Change of Ownership.

(a) A license is not transferable as part of a change of ownership as defined in §92.2 of this chapter (relating to Definitions).

(b) At least 30 days before the anticipated date of the change of ownership, the prospective owner must notify DADS of the change of ownership by submitting an application for an initial license based on a change of ownership under §92.14 of this subchapter (relating to Initial Application Procedures and Requirements) and the fee required in §92.4 of this chapter (relating to License Fees).

(c) To avoid a facility operating while unlicensed, an applicant must submit an application for an initial license based on a change of ownership at least 30 days before the anticipated date of the sale or other transfer to the new owner. The effective date of the change of ownership cannot precede the date the application is received by DADS' Licensing and Credentialing Section, Regulatory Services Division.

(d) DADS may assess an administrative penalty in accordance with Subchapter H, Division 9 of this chapter (relating to Administrative Penalties) against a person who fails to notify DADS before the effective date of the change of ownership.

(e) Pending DADS' review of the application for an initial license based on a change of ownership, the current license holder must continue to meet all requirements for operation of the facility.

(f) After reviewing the application for an initial license based on a change of ownership, DADS conducts an on-site health inspection to determine if the facility meets the standards for operation and resident care. If the facility is out of compliance with Life Safety Code licensure requirements in Subchapter D of this chapter (relating to Facility Construction), DADS also conducts a Life Safety Code inspection of the facility.

(g) DADS issues the license within 30 days after DADS determines that the applicant and the facility have met the licensure requirements of this section. The issuance of a license constitutes DADS' official written notice to the facility of the approval of the application for a change of ownership.

(h) DADS may deny an application for a change of ownership if the applicant, controlling person, or any person required to submit background and qualification information fails to meet the criteria for a license established in §92.11 of this subchapter (relating to Criteria for Licensing).

(i) If DADS denies an application for an initial license based on a change of ownership, DADS sends the applicant a written notice of the denial and informs the applicant of the applicant's right to request an administrative hearing to appeal the denial. The administrative hearing is held in accordance with Texas Health and Human Services Commission rules at 1 TAC Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act).

§92.17.Relocation.

(a) Relocation is the closing of a facility and the movement of its residents to another location.

(b) A license holder must not relocate a facility without approval from DADS.

(c) Before a relocation, the license holder must file an application for an initial license for the new location in accordance with §92.14 of this subchapter (relating to Initial Application Procedures and Requirements) and the fee required in §92.4 of this chapter (relating to License Fees).

(d) Residents must not be relocated until the new building has been inspected and approved as meeting the Life Safety Code licensure requirements in Subchapter D of this chapter (relating to Facility Construction).

(e) Following Life Safety Code approval by DADS, the license holder must notify DADS of the date the residents will be relocated.

(f) DADS issues a license for the new facility if the new facility meets the standards of operation and resident care based on an on-site health inspection. The effective date of the license is the date all residents are relocated.

(g) The license holder must continue to maintain the license at the current location and must continue to meet all requirements for operation of the facility until DADS has approved the relocation. The issuance of a license constitutes DADS' approval of the relocation. The license for the current location becomes invalid upon issuance of the new license for the new location.

§92.18.Increase in Capacity.

(a) A license holder must not increase a facility's licensed capacity without approval from DADS.

(b) The license holder must file an application for an increase in capacity in accordance with §92.12 (relating to General Application Requirements) and the fee required in §92.4 of this chapter (relating to License Fees).

(c) The license holder must arrange for an inspection of the facility by the local fire marshal and provide the signed fire marshal approval to DADS.

(d) After DADS' review of an application and after the applicant notifies DADS in writing that the facility is ready for a Life Safety Code (LSC) inspection, DADS staff conduct an on-site LSC inspection of the facility to determine if the facility meets the LSC licensure requirements in Subchapter D of this chapter (relating to Facility Construction).

(e) If the facility fails to meet the LSC licensure requirements within 120 days after the LSC inspection, DADS denies the application for an increase in capacity.

(f) After a facility has met LSC licensure requirements, DADS staff conduct an on-site health inspection to determine if the facility meets the licensure requirements for standards of operation and resident care in Subchapter C of this chapter (relating to Standards for Licensure).

(g) DADS issues a new license with an increased capacity within 30 days after DADS determines that all licensure requirements have been met. DADS may grant approval to occupy the increased capacity once DADS determines that all licensure requirements have been met.

(h) In order to meet the residents' health and safety needs in the event of a fire, natural disaster, or catastrophic event, DADS may grant approval to temporarily exceed a facility's licensed capacity provided the health and safety of residents are not compromised and the facility can meet the required health care service needs of all residents. A facility may exceed its licensed capacity under this circumstance, monitored by DADS staff, until residents can be transferred to a permanent location. DADS will issue authorization for the temporary increase in the facility's licensed capacity. The authorization to temporarily increase the capacity ends when the facility receives written notice from DADS ending the authorization.

§92.19.Decrease in Capacity.

(a) A license holder that wishes to decrease the licensed capacity of the facility must provide written notification to DADS' Licensing and Credentialing Section. The written notification must include the desired capacity for the new license.

(b) Upon receipt of the written notification, DADS issues a new license with the desired capacity as indicated in the written notification.

§92.20.Provisional License.

(a) DADS may issue a six-month provisional license:

(1) in the case of a corporate change of ownership; or

(2) to a newly constructed facility if:

(A) the facility is in compliance with resident care standards;

(B) all local approvals have been obtained;

(D) the license fee has been paid.

(b) If the facility does not meet Life Safety Code and physical plant standards, DADS will not issue a permanent license to the facility.

§92.54.Advertisements, Solicitations, and Promotional Material.

An assisted living facility must use its state-issued facility identification number in all advertisements, solicitations, and promotional materials, including yellow pages, brochures, and business cards.

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 July 21, 2008.

TRD-200803703

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 31, 2008

For further information, please call: (512) 438-3734

SUBCHAPTER H. ENFORCEMENT

DIVISION 9. ADMINISTRATIVE PENALTIES

40 TAC §92.551

STATUTORY AUTHORITY

The new section is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Health and Safety Code, Chapter 247, which authorizes DADS to license and regulate assisted living facilities.

The new section implements Texas Government Code, §531.0055; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §§247.001 - 247.069.

§92.551.Administrative Penalties.

(a) Assessment of an administrative penalty. DADS may assess an administrative penalty if a license holder:

(1) violates:

(A) Texas Health and Safety Code, Chapter 247;

(B) a rule, standard, or order adopted under Texas Health and Safety Code, Chapter 247; or

(2) makes a false statement of material fact that the license holder knows or should know is false:

(A) on an application for issuance or renewal of a license;

(B) in an attachment to the application; or

(3) refuses to allow a DADS representative to inspect:

(A) a book, record, or file that a facility must maintain; or

(B) any portion of the premises of a facility;

(4) willfully interferes with the work of a DADS representative or the enforcement of this chapter;

(5) willfully interferes with a DADS representative preserving evidence of a violation of Texas Health and Safety Code, Chapter 247; a rule, standard, or order adopted under Texas Health and Safety Code, Chapter 247; or a term of a license issued under Texas Health and Safety Code, Chapter 247;

(6) fails to pay an administrative penalty not later than the 30th calendar day after the penalty assessment becomes final; or

(7) fails to notify DADS of a change of ownership before the effective date of the change of ownership.

(b) Criteria for assessing an administrative penalty. DADS considers the following in determining the amount of an administrative penalty:

(1) the gradations of penalties established in subsection (d) of this section;

(2) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the situation, and the hazard or potential hazard created by the situation to the health or safety of the public;

(3) the history of previous violations;

(4) deterrence of future violations;

(5) the license holder's efforts to correct the violation;

(6) the size of the facility and of the business entity that owns the facility; and

(7) any other matter that justice may require.

(c) Late payment of an administrative penalty. A license holder must pay an administrative penalty within 30 calendar days after the penalty assessment becomes final. If a license holder fails to timely pay the administrative penalty, DADS may assess an administrative penalty under subsection (a)(6) of this section, which is in addition to the penalty that was previously assessed and not timely paid.

(d) Administrative penalty schedule. DADS uses the schedule of appropriate and graduated administrative penalties in this subsection to determine which violations warrant an administrative penalty.

Figure: 40 TAC §92.551(d)

(e) Administrative penalty assessed against a resident. DADS does not assess an administrative penalty against a resident, unless the resident is also an employee of the facility or a controlling person.

(f) Proposal of administrative penalties.

(1) DADS issues a preliminary report stating the facts on which DADS concludes that a violation has occurred after DADS has:

(A) examined the possible violation and facts surrounding the possible violation; and

(B) concluded that a violation has occurred.

(2) DADS may recommend in the preliminary report the assessment of an administrative penalty for each violation and the amount of the administrative penalty.

(3) DADS provides a written notice of the preliminary report to the license holder not later than 10 calendar days after the date on which the preliminary report is issued. The written notice includes:

(A) a brief summary of the violation;

(B) the amount of the recommended administrative penalty;

(C) a statement of whether the violation is subject to correction in accordance with subsection (g) of this section and, if the violation is subject to correction, a statement of:

(i) the date on which the license holder must file with DADS a plan of correction for approval by DADS; and

(ii) the date on which the license holder must complete the plan of correction to avoid assessment of the administrative penalty; and

(D) a statement that the license holder has a right to an administrative hearing on the occurrence of the violation, the amount of the penalty, or both.

(4) Not later than 20 calendar days after the date on which a license holder receives a written notice of the preliminary report, the license holder may:

(A) give DADS written consent to the preliminary report, including the recommended administrative penalty; or

(B) make a written request to the Texas Health and Human Services Commission (HHSC) for an administrative hearing.

(5) If a violation is subject to correction under subsection (g) of this section, the license holder must submit a plan of correction to DADS for approval not later than 10 calendar days after the date on which the license holder receives the written notice described in paragraph (3) of this subsection.

(6) If a violation is subject to correction under subsection (g) of this section, and after the license holder reports to DADS that the violation has been corrected, DADS inspects the correction or takes any other step necessary to confirm the correction and notifies the facility that:

(A) the correction is satisfactory and DADS will not assess an administrative penalty; or

(B) the correction is not satisfactory and a penalty is recommended.

(7) Not later than 20 calendar days after the date on which a license holder receives a notice under paragraph (6)(B) of this subsection (notice that the correction is not satisfactory and recommendation of a penalty), the license holder may:

(A) give DADS written consent to DADS' report, including the recommended administrative penalty; or

(B) make a written request to HHSC for an administrative hearing.

(8) If a license holder consents to the recommended administrative penalty or does not timely respond to a notice sent under paragraph (3) of this subsection (written notice of the preliminary report) or paragraph (6)(B) of this subsection (notice that the correction is not satisfactory and recommendation of a penalty):

(A) the commissioner or the commissioner's designee assesses the recommended administrative penalty;

(B) DADS gives written notice of the decision to the license holder; and

(C) the license holder must pay the penalty not later than 30 calendar days after the written notice given in subparagraph (B) of this paragraph.

(g) Opportunity to correct.

(1) A license holder has an opportunity to correct a violation, except a violation described in paragraph (2) of this subsection, to avoid paying an administrative penalty, if the license holder corrects the violation not later than 45 calendar days after the date the facility receives the written notice described in subsection (f)(3) of this section.

(2) A license holder does not have an opportunity to correct a violation:

(A) that DADS determines results in serious harm to or death of a resident;

(B) described by subsection (a)(2)-(7) of this section;

(D) that is the second or subsequent violation of:

(i) a right of the same resident under §92.125 of this chapter (relating to Resident's Bill of Rights and Provider Bill of Rights); or

(ii) the same right of all residents under §92.125 of this chapter; or

(E) a violation that is written because of an inappropriately placed resident, except as described in §92.41(f) of this chapter (relating to Inappropriate Placement).

(3) Maintenance of violation correction.

(A) A license holder that corrects a violation must maintain the correction. If the license holder fails to maintain the correction until at least the first anniversary of the date the correction was made, DADS may assess and collect an administrative penalty for the subsequent violation.

(B) An administrative penalty assessed under this paragraph is equal to three times the amount of the original administrative penalty that was assessed but not collected.

(h) Hearing on an administrative penalty. If a license holder timely requests an administrative hearing as described in subsection (f)(3) or (f)(7) of this section, the administrative hearing is held in accordance with HHSC rules at 1 TAC Chapter 357, Subchapter I (relating to Hearings under the Administrative Procedure Act).

(i) DADS may charge interest on an administrative penalty. The interest begins the day after the date the penalty becomes due and ends on the date the penalty is paid in accordance with Texas Health and Safety Code, §247.0455(e).

(j) Amelioration of a violation.

(1) In lieu of demanding payment of an administrative penalty, the commissioner may allow a license holder to use, under DADS' supervision, any portion of the administrative penalty to ameliorate the violation or to improve services, other than administrative services, in the facility affected by the violation. Amelioration is an alternate form of payment of an administrative penalty, not an appeal, and does not remove a violation or an assessed administrative penalty from a facility's history.

(2) A license holder cannot ameliorate a violation that DADS determines constitutes immediate jeopardy to the health or safety of a resident.

(3) DADS offers amelioration to a license holder not later than 10 calendar days after the date a license holder receives a final notification of the recommended assessment of an administrative penalty that is sent to the license holder after an informal dispute resolution process but before an administrative hearing.

(4) A license holder to whom amelioration has been offered must:

(A) submit a plan for amelioration not later than 45 calendar days after the date the license holder receives the offer of amelioration from DADS; and

(B) agree to waive the license holder's right to an administrative hearing if DADS approves the plan for amelioration.

(5) A license holder's plan for amelioration must:

(A) propose changes to the management or operation of the facility that will improve services to or quality of care of residents;

(B) identify, through measurable outcomes, the ways in which and the extent to which the proposed changes will improve services to or quality of care of residents;

(D) establish a time line for implementing the proposed changes; and

(E) identify specific actions the license holder will take to implement the proposed changes.

(6) A license holder's plan for amelioration may include proposed changes to:

(A) improve staff recruitment and retention;

(B) offer or improve dental services for residents; and

(7) DADS may require that an amelioration plan propose changes that would result in conditions that exceed the requirements of this chapter.

(8) DADS approves or denies a license holder's amelioration plan not later than 45 calendar days after the date DADS receives the plan. If DADS approves the amelioration plan, any pending request the license holder has submitted for an administrative hearing must be withdrawn by the license holder.

(9) DADS does not offer amelioration to a license holder:

(A) more than three times in a two-year period; or

(B) more than one time in a two-year period for the same or a similar violation.

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 July 21, 2008.

TRD-200803705

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 31, 2008

For further information, please call: (512) 438-3734

SUBCHAPTER A. INTRODUCTION

40 TAC §§92.2 - 92.4

STATUTORY AUTHORITY

The repeal is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Health and Safety Code, Chapter 247, which authorizes DADS to license and regulate assisted living facilities.

The repeal implements Texas Government Code, §531.0055; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §§247.001 - 247.069.

§92.2.Basis and Scope.

§92.3.Definitions.

§92.4.Types of Assisted Living Facilities.

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 July 21, 2008.

TRD-200803702

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 31, 2008

For further information, please call: (512) 438-3734

SUBCHAPTER B. APPLICATION PROCEDURES

40 TAC §§92.10 - 92.23

STATUTORY AUTHORITY

The repeal is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Health and Safety Code, Chapter 247, which authorizes DADS to license and regulate assisted living facilities.

The repeal implements Texas Government Code, §531.0055; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §§247.001 - 247.069.

§92.10.Criteria for Licensing.

§92.11.Building Approval.

§92.12.Applicant Disclosure Requirements.

§92.13.Time Periods for Processing License Applications.

§92.14.Increase in Capacity.

§92.15.Renewal Procedures and Qualifications.

§92.16.Change of Ownership.

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

§92.18.Exclusions.

§92.19.Opportunity to Show Compliance.

§92.20.License Fees.

§92.21.Advertisements, Solicitations, and Promotional Material.

§92.22.Provisional License.

§92.23.Relocation.

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 July 21, 2008.

TRD-200803704

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 31, 2008

For further information, please call: (512) 438-3734

SUBCHAPTER H. ENFORCEMENT

DIVISION 9. ADMINISTRATIVE PENALTIES

40 TAC §§92.551 - 92.595

STATUTORY AUTHORITY

The repeal is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Health and Safety Code, Chapter 247, which authorizes DADS to license and regulate assisted living facilities.

The repeal implements Texas Government Code, §531.0055; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §§247.001 - 247.069.

§92.551.When is an administrative penalty assessed?

§92.552.Who is an administrative penalty assessed against?

§92.553.May DHS assess an administrative penalty against a resident?

§92.554.What is the time frame for paying an administrative penalty?

§92.555.What happens when a license holder fails to timely pay an administrative penalty?

§92.556.Is an administrative penalty assessed under §92.555 of this chapter (relating to What happens when a license holder fails to timely pay an administrative penalty?)?

§92.557.How does DHS determine the amount of the administrative penalty?

§92.558.Can DHS potentially impose an administrative penalty for each violation?

§92.559.What is the administrative penalty schedule?

§92.560.Does DHS assess a penalty when a license holder has no control over the violation?

§92.561.Does DHS assess a penalty when a physician or consultant does not perform their duties?

§92.562.Does DHS issue a preliminary report on the facts of the violation?

§92.563.What does DHS include in the preliminary report?

§92.564.When does DHS issue the preliminary report?

§92.565.What is the purpose of the preliminary report?

§92.566.When does DHS notify a license holder about the preliminary report?

§92.567.What does the DHS notice of the preliminary report include?

§92.568.How may a license holder respond?

§92.569.How long does a license holder have to respond to the preliminary report?

§92.570.What happens if a license holder does not respond timely?

§92.571.Does a license holder have the right to correct violations that result in an administrative penalty in order to avoid an administrative penalty?

§92.572.Which violations cannot be corrected to avoid the assessment of an administrative penalty?

§92.573.What happens if a license holder corrects the violations?

§92.574.How long does a license holder have to correct the violations?

§92.575.Is a license holder required to submit a plan of correction if a violation is going to be corrected?

§92.576.When must the license holder submit the plan of correction?

§92.577.What happens when a license holder reports a violation has been corrected?

§92.578.What does DHS decide about the administrative penalty if a license holder reports that a violation has been corrected?

§92.579.Does DHS notify a license holder of its determination of the plan of correction?

§92.580.What options does a license holder have when DHS determines the correction is not satisfactory?

§92.581.How long does a license holder have to respond to the notice that the correction is not satisfactory?

§92.582.What happens when a license holder consents to the penalty?

§92.583.Does DHS give a license holder notice of the assessed penalty?

§92.584.What happens when DHS gives the license holder notice of the penalty decision?

§92.585.What happens when a license holder fails to respond to the DHS notice within the 20 calendar days?

§92.586.Is a license holder required to maintain correction of a violation?

§92.587.What happens when a license holder fails to maintain correction of the violation until at least the first anniversary?

§92.588.What is the amount of the penalty assessed when a license holder fails to maintain correction until at least the first anniversary?

§92.589.Is DHS required to offer a license holder an opportunity to correct a subsequent violation?

§92.590.Does a license holder have administrative appeal rights?

§92.591.Where may a license holder find the procedures for administrative appeals?

§92.592.Where are the procedures for administrative penalties for notification of recommended assessment, opportunity for hearing, actual assessment, payment of penalty, judicial review, and remittance?

§92.593.Where may a license holder find information on formal hearing procedures?

§92.594.May DHS charge interest on administrative penalties?

§92.595.What authority does DHS have to charge interest on administrative penalties?

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 July 21, 2008.

TRD-200803706

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 31, 2008

For further information, please call: (512) 438-3734

DIVISION 10. AMELIORATION

40 TAC §§92.601 - 92.616

STATUTORY AUTHORITY

The repeal is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Health and Safety Code, Chapter 247, which authorizes DADS to license and regulate assisted living facilities.

The repeal implements Texas Government Code, §531.0055; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §§247.001 - 247.069.

§92.601.What is amelioration?

§92.602.Who decides if a license holder may ameliorate an administrative penalty?

§92.603.How may a license holder request amelioration?

§92.604.Does DHS supervise implementation of the plan?

§92.605.How may a license holder use the ameliorated portion of the penalty?

§92.606.Which violations are prohibited from amelioration?

§92.607.When will DHS offer amelioration to a license holder?

§92.608.What is the deadline for filing an amelioration plan?

§92.609.Does a license holder have a right to an administrative hearing if DHS approves its amelioration plan?

§92.610.What happens if a license holder requests an administrative hearing and DHS approves a previously submitted amelioration plan?

§92.611.What must be included in a license holder's amelioration plan?

§92.612.May a license holder include additional information in the amelioration plan?

§92.613.May DHS require changes that exceed the minimum licensing requirements?

§92.614.How long does DHS have to decide if the amelioration plan has been accepted?

§92.615.Does DHS notify a license holder if the amelioration plan has been accepted?

§92.616.When is DHS not allowed to offer amelioration to a license holder?

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 July 21, 2008.

TRD-200803707

Marianne Reat

Interim General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 31, 2008

For further information, please call: (512) 438-3734