TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES

CHAPTER 92. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES

The Texas Health and Human Services Commission (HHSC) adopts, on behalf of the Department of Aging and Disability Services (DADS), new §92.22 and amendments to §92.51 and §92.551, in Chapter 92, Licensing Standards for Assisted Living Facilities. New §92.22 is adopted with changes to the proposed text published in the October 28, 2016, issue of the Texas Register (41 TexReg 8556). The amendments §92.51 and §92.551 are adopted without changes to the proposed text published in the October 28, 2016, issue of the Texas Register (41 TexReg 8556).

BACKGROUND AND PURPOSE

The amendments and new section set forth requirements for an applicant for an initial assisted living facility (facility) license to obtain Alzheimer's certification for the facility or a distinct unit of the facility and allow an applicant in good standing to request that DADS issue Alzheimer's certification for the facility or unit before DADS conducts an on-site health inspection. The new section sets forth the criteria for good standing by requiring an applicant, or a controlling person of the applicant, to have operated a certified facility in Texas or a facility in Texas with a certified unit for six consecutive years preceding the request for certification. In addition, each licensed facility operated by the applicant or controlling person must not have a history of certain licensure violations or sanctions imposed as specified in the new section. Before issuing certification, the applicant must submit for approval policies and procedures, verification of employee background checks, and employee credentials. DADS will conduct a health inspection that includes observation of resident care not later than 90 days after the date DADS certifies the facility or unit. The amendments allow DADS to impose an administrative penalty if a facility fails to disclose to residents and prospective residents that it has not met the requirements of an on-site health inspection. The amendments also clarify the process for a license holder of a Type B facility to obtain Alzheimer's certification for the facility or a unit of the facility.

COMMENTS

DADS received written comments from a representative from the Area Agency on Aging Houston-Galveston Area and a representative from Ochiltree General Hospital.

Comment: Both commenters asked for confirmation that, in addition to the process described in the proposed rules, an applicant has the option to apply for Alzheimer’s certification using the current process.

Response: The agency responds that an applicant may apply for Alzheimer’s certification using the current process. No changes were made in response to the comments.

DADS made changes to §92.22(d)(1) to clarify that an applicant or controlling person of the applicant must have operated a certified facility in Texas or a facility in Texas with a certified unit for six consecutive years preceding the request for certification. DADS will not accept operation of an assisted living facility outside of Texas to satisfy this requirement. DADS also made changes to §92.22(f)(2) to require that an applicant to submit documentation demonstrating that it is complying with §92.123, in addition to §92.53. This change is intended to ensure that the applicant verifies the employability of employees before hire and during the term of the employment.

SUBCHAPTER B. APPLICATION PROCEDURES

40 TAC §92.22

STATUTORY AUTHORITY

The new section is adopted 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 Health and Safety Code, §247.029, which provides that the HHSC executive commissioner shall adopt rules that govern facilities that provide personal care services to residents who have Alzheimer's disease or related disorders.

The new section implements Texas Government Code, §531.0055 and Texas Health and Safety Code, §247.029.

§92.22.Alzheimer's Certification of a Type B Facility for an Initial License Applicant in Good Standing.

(a) An applicant may request that DADS, before conducting an on-site health inspection, issue an initial license for a Type B facility and an Alzheimer's certification for the facility or a distinct unit of the facility. The applicant must meet the requirements of §92.21 of this subchapter (relating to Initial License for a Type A or Type B Facility for an Applicant in Good Standing) for the initial license and the requirements of this section for certification of the facility or unit.

(b) An applicant must request certification by submitting forms prescribed by and made available from DADS and include the fee described in §92.4 of this chapter (relating to Licensing Fees).

(c) An applicant that makes a request in accordance with subsection (a) of this section is not required to admit a resident to the facility or unit or have the on-site health inspection described in §92.14(f) of this subchapter (relating to Initial License Application Process and Requirements) before DADS certifies the facility or unit if DADS determines that the applicant is in good standing:

(1) for the issuance of an initial license of the facility in accordance with §92.21(c) of this chapter; and

(2) for certification of the facility or unit in accordance with subsection (d) of this section.

(d) An applicant is in good standing to obtain certification of a facility or unit if:

(1) for at least six consecutive years before applying for certification:

(A) the applicant has been:

(i) the license holder for an Alzheimer's certified facility in Texas or a facility in Texas that has an Alzheimer's certified unit; or

(ii) a controlling person of the license holder for an Alzheimer's certified facility in Texas or a facility in Texas that has an Alzheimer's certified unit; or

(B) a controlling person of the applicant has been:

(i) the license holder for an Alzheimer's certified facility in Texas or a facility in Texas that has an Alzheimer's certified unit; or

(ii) a controlling person of the license holder for an Alzheimer's certified facility in Texas or a facility in Texas that has an Alzheimer's certified unit;

(2) each licensed facility operated by the applicant or the controlling person has not had a violation or sanction described in §92.21(c)(2) of this subchapter; and

(3) each licensed facility operated by the applicant or the controlling person has had no more than two violations listed in §92.125(a) of this chapter (relating to Resident's Bill of Rights and Provider Bill of Rights) during the six-year period immediately before the applicant applied for certification.

(e) For purposes of subsection (d)(3) of this section, a facility has a violation if:

(1) the applicant or controlling person operating the facility did not challenge the violation;

(2) a final determination on the violation is pending; or

(3) the violation was upheld.

(f) An applicant that makes a request in accordance with subsection (a) of this section must submit to DADS for approval:

(1) the applicant's policies and procedures required by §92.53 of this chapter (relating to Standards for Certified Alzheimer's Assisted Living Facilities); and

(2) documentation demonstrating that the applicant is complying with §92.53 and §92.123 of this chapter (relating to Investigation of Facility Employees).

(g) DADS certifies a facility or unit after an applicant makes a request in accordance with subsection (a) of this section if DADS determines that the applicant:

(1) meets the good standing requirements described in §92.21(c) of this subchapter and subsection (d) of this section;

(2) has submitted information in accordance with subsection (f) of this section; and

(3) is in compliance with:

(A) §92.51 of this chapter (relating to Certification of a Facility or Unit for Persons with Alzheimer's Disease and Related Disorders); and

(B) §92.53(i) of this chapter.

(h) DADS conducts an on-site health inspection to determine if the facility or unit meets the requirements of §92.53(a) - (h) of this chapter within 90 days after the date DADS certifies a facility or unit in accordance with subsection (g) of this section. During the on-site health inspection, DADS must observe the provision of care to at least one resident who has been admitted to the facility or unit.

(i) Until a facility or unit that is issued a certification under this section meets the requirements of the on-site health inspection described in subsection (h) of this section, the facility must attach a written addendum to the disclosure statement required by §92.53(d) of this chapter to notify a resident or a prospective resident that the facility or unit has not met the requirements of the on-site health inspection. At a minimum, the addendum must state that:

(1) the facility or unit has not met the requirements of an initial on-site health inspection for Alzheimer's certification; and

(2) DADS will conduct an on-site health inspection for Alzheimer's certification within 90 days after the date of certification.

(j) To obtain certification of a unit in a Type B facility that is already licensed, a license holder must comply with §92.51 of this chapter (relating to Certification of a Facility or Unit for Persons with Alzheimer's disease and Related Disorders).

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 27, 2017.

TRD-201701315

Lawrence Hornsby

General Counsel

Department of Aging and Disability Services

Effective date: April 16, 2017

Proposal publication date: October 28, 2016

For further information, please call: (512) 438-2235


SUBCHAPTER C. STANDARDS FOR LICENSURE

40 TAC §92.51

The amendment is adopted 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 Health and Safety Code, §247.029, which provides that the HHSC executive commissioner shall adopt rules that govern facilities that provide personal care services to residents who have Alzheimer's disease or related disorders.

The amendment implements Texas Government Code, §531.0055 and Texas Health and Safety Code, §247.029.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 27, 2017.

TRD-201701316

Lawrence Hornsby

General Counsel

Department of Aging and Disability Services

Effective date: April 16, 2017

Proposal publication date: October 28, 2016

For further information, please call: (512) 438-2235


SUBCHAPTER H. ENFORCEMENT

DIVISION 9. ADMINISTRATIVE PENALTIES

40 TAC §92.551

The amendment is adopted 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 Health and Safety Code, §247.029, which provides that the HHSC executive commissioner shall adopt rules that govern facilities that provide personal care services to residents who have Alzheimer's disease or related disorders.

The amendment implements Texas Government Code, §531.0055 and Texas Health and Safety Code, §247.029.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 27, 2017.

TRD-201701317

Lawrence Hornsby

General Counsel

Department of Aging and Disability Services

Effective date: April 16, 2017

Proposal publication date: October 28, 2016

For further information, please call: (512) 438-2235


CHAPTER 99. DENIAL OR REFUSAL OF LICENSE

40 TAC §§99.1 - 99.4

The Texas Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §§99.1, 99.2, and 99.3, and new §99.4, in Chapter 99, Denial or Refusal of License. The amendments and new rule are adopted without changes to the proposed text published in the January 13, 2017, issue of the Texas Register (42 TexReg 60).

BACKGROUND AND JUSTIFICATION

The new rule and amended rules clarify that DADS may deny or refuse to renew a license for a nursing facility, an assisted living facility, a home and community support services agency, a day activity and health services facility, an intermediate care facility for individuals with an intellectual disability or related conditions, or a prescribed pediatric extended care center if the applicant, license holder, or a controlling party of the applicant or license holder is designated as unemployable on the Employee Misconduct Registry (EMR) or listed as revoked or suspended on the Nurse Aide Registry (NAR). This change is designed to help protect the health and safety of individuals served by these licensed entities by preventing persons who are on either registry from receiving or renewing a license.

COMMENTS

The 30-day comment period ended February 13, 2017. During this period, no comments were received regarding the new rule and amended rules.

STATUTORY AUTHORITY

The new rule and amended rules are adopted 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.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 29, 2017.

TRD-201701353

Lawrence Hornsby

General Counsel

Department of Aging and Disability Services

Effective date: April 18, 2017

Proposal publication date: January 13, 2017

For further information, please call: (512) 438-3791


PART 19. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

CHAPTER 700. CHILD PROTECTIVE SERVICES

SUBCHAPTER E. INTAKE, INVESTIGATION, AND ASSESSMENT

DIVISION 1. INVESTIGATIONS

40 TAC §700.516

The Texas Health and Human Services Commission, on behalf of the Department of Family and Protective Services (DFPS), adopts an amendment to §700.516 in Title 40, Texas Administrative Code (TAC), Chapter 700, Subchapter E, relating to Child Protective Services Intake, Investigation, and Assessment without changes to the proposed text published in the December 23, 2016, issue of the Texas Register (41 TexReg 10094). As such, the amendment to §700.516 will not be republished.

BACKGROUND AND JUSTIFICATION

The justification of the amendment is to clarify that if a designated perpetrator submits a written request for an administrative review of investigation findings (ARIF), the individual must respond to attempts made by DFPS' resolution specialist to schedule the review. If the resolution specialist is unable to make contact with the individual and the individual does not respond to the attempts to make contact within 30 days of the initial contact attempt, DFPS will not proceed with the review and the individual waives his or her right to an ARIF. However, if the individual subsequently contacts DFPS after the specified timeframe, the resolution specialist may reschedule the review if the resolutions specialist determines good reason existed for exceeding the timeframe. Currently, if a designated perpetrator submits a written request for an ARIF but fails to respond to attempts by the resolution specialist to schedule the ARIF, the case may either remain open indefinitely or the resolution specialist proceeds with the ARIF without input from the designated perpetrator. This adopted update will ensure that ARIFs are not conducted without any input from the designated perpetrator if the resolution specialist is unable to make contact and will also ensure that the ARIF does not remain open indefinitely. Further, by permitting the resolution specialist to reschedule an ARIF if the designated perpetrator subsequently contacts DFPS and provides good reason for failing to respond to the resolution specialist's attempts to schedule the initial ARIF, the rule effectively balances the due process rights of the designated perpetrator with the statutory requirements to conduct an ARIF within 45 days of the request.

In addition, the edits update the procedure for conducting an ARIF as well as the procedure and timeframes that apply when an ARIF is postponed due to a court case or ongoing criminal investigation to ensure consistency with current policy and procedure. Finally, the edits clarify that DFPS only reviews and issues a written decision on findings pertaining to the requestor and does not alter dispositions of "Ruled Out" and "Unable to Determine."

COMMENTS

The 30-day comment period ended January 22, 2017. During this period, DFPS did not receive any comments regarding the amended rule.

STATUTORY AUTHORITY (DFPS)

The amendment is adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendment implements Texas Family Code §261.309.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 31, 2017.

TRD-201701363

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 20, 2017

Proposal publication date: December 23, 2016

For further information, please call: (512) 929-6434