TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES

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), proposes amendments to §§99.1, 99.2, and 99.3 and new §99.4, in Chapter 99, Denial or Refusal of License.

BACKGROUND AND PURPOSE

The purpose of the proposal is to 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.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §99.1 adds a prescribed pediatric care center to the definition of "facility," and corrects terminology used in other definitions. The proposed amendment also adds a definition of the term "DADS" to include a successor agency. This change reflects the proposed transfer of functions from DADS to HHSC in accordance with Senate Bill 200, 84th Legislature, 2015.

The proposed amendment to §99.2 updates the Texas Penal Code reference in subsection (a)(1)(D) from §22.015, Coercing, soliciting, or inducing gang membership, to §71.022, Coercing, inducing, or soliciting membership in a criminal street gang, to reflect a change in the Penal Code.

The proposed amendment to §99.3 is necessary to exclude prescribed pediatric extended care facilities from the provision that allows DADS to deny or refuse to renew a license if an applicant, license holder, or a controlling party of the applicant or license holder is listed in a record maintained by a health and human services agency under Texas Government Code §531.952 and other circumstances apply.

Proposed new §99.4 clarifies that DADS may deny or refuse to renew a facility license if an applicant, facility license holder, or a controlling party of the applicant or facility license holder is designated as unemployable on the EMR or listed as revoked or suspended on the NAR.

FISCAL NOTE

David Cook, Deputy Chief Financial Officer, has determined that, for the first five years the proposed amendments and new section are in effect, enforcing or administering the amendments and new section 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 and new section will not have an adverse economic effect on small businesses or micro-businesses because the proposal does not impose any new requirements that require additional resources.

PUBLIC BENEFIT AND COSTS

Mary T. Henderson, DADS Associate Commissioner for Regulatory Services, has determined that, for each year of the first five years the amendments and new section are in effect, the public benefit expected as a result of enforcing the amendments and new section is that the rules will clarify and support DADS authority to prohibit a person from receiving or renewing a license if the person's name appears on the EMR as unemployable or the NAR as suspended or revoked.

Ms. Henderson anticipates that there will not be an economic cost to persons who are required to comply with the amendments and new section. The amendments and new section 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 Christy Parks at (512) 438-3791 in DADS Regulatory Services Division. Written comments on the proposal may be submitted to hhsrulescoordinationoffice@hhsc.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. Please indicate "Comments on Proposed Rule 16R05" in the subject line.

STATUTORY AUTHORITY

The amendments and new section 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.

The amendments and new section implement Texas Government Code, §531.0055.

§99.1.Definitions.

In this chapter[, facility means]:

(1) DADS means the Department of Aging and Disability Services or its successor agency; and

(2) facility means:

(A) [(1)] a nursing facility [home] licensed under Chapter 242 of the Texas Health and Safety Code;

(B) [(2)] an assisted living facility licensed under Chapter 247 of the Texas Health and Safety Code;

(C) [(3)] a home and community support services agency licensed under Chapter 142 of the Texas Health and Safety Code;

(D) [(4)] a day activity and health services [an adult day care] facility licensed under Chapter 103 of the Texas Human Resources Code; [or]

(E) [(5)] an intermediate care facility for individuals with an intellectual disability or related conditions [persons with mental retardation] licensed under Chapter 252 of the Texas Health and Safety Code; or

(F) a prescribed pediatric extended care center licensed under Chapter 248A of the Texas Health and Safety Code.

§99.2.Convictions Barring Licensure.

(a) DADS [The Department of Aging and Disability Services (DADS)] may deny an initial facility license, or refuse to renew a facility license, if an applicant for a facility license, a facility license holder, or any other person whose criminal history must be verified before a facility license is issued:

(1) has been convicted, regardless of the date of conviction, of any of the following misdemeanor or felony offenses:

(A) an offense listed in Texas Health and Safety Code, §250.006(a) or (c) (relating to Convictions Barring Employment);

(B) an offense relating to the practice of a health-related profession without a license;

(C) an offense relating to drugs, dangerous drugs, or controlled substances; or

(D) an offense under any of the following sections of the Texas Penal Code:

[(i) Section 22.015, Coercing, soliciting, or inducing gang membership;]

(i) [(ii)] Section 22.09, Tampering with consumer product;

(ii) [(iii)] Section 22.10, Leaving a child in a vehicle;

(iii) [(iv)] Section 32.42, Deceptive business practices;

(iv) [(v)] Section 32.51, Fraudulent use or possession of identifying information;

(v) [(vi)] Section 35.02, Insurance fraud;

(vi) [(vii)] Section 42.072, Stalking;

(vii) [(viii)] Section 42.10, Dog fighting;

(viii) [(ix)]) Section 43.05, Compelling prostitution;

(ix) [(x)] Section 43.24, Sale, distribution, or display of harmful material to minor;

(x) [(xi)] Section 43.25, Sexual performance by a child;

(xi) [(xii)] Section 43.251, Employment harmful to children;

(xii) [(xiii)] Section 43.26, Possession or promotion of child pornography;

(xiii) [(xiv)] Section 46.06, Unlawful transfer of certain weapons;

(xiv) [(xv)] Section 46.13, Making a firearm accessible to a child;

(xv) [(xvi)] Section 48.02, Prohibition of the purchase and sale of human organs;

(xvi) [(xvii)] Section 49.07, Intoxication assault; [or]

(xvii) [(xviii)] Section 49.08, Intoxication manslaughter; or

(xviii) Section 71.022, Coercing, inducing, or soliciting membership in a criminal street gang; or

(2) has been convicted, during the five years preceding the date of the facility license application, of any of the following misdemeanor or felony offenses:

(A) an offense listed in Texas Health and Safety Code, §250.006(b); or

(B) an offense under any of the following sections of the Texas Penal Code:

(i) Section 30.03, Burglary of coin-operated or coin collection machines;

(ii) Section 30.04, Burglary of vehicles;

(iii) Section 31.03, Theft;

(iv) Section 31.04, Theft of service;

(v) Section 32.21, Forgery;

(vi) Section 32.31, Credit card or debit card abuse;

(vii) Section 32.33, Hindering secured creditors;

(viii) Section 32.48, Simulating legal process;

(ix) Section 33.02, Breach of computer security;

(x) Section 42.061, Silent or abusive calls to 9-1-1 service;

(xi) Section 42.07, Harassment; or

(xii) Section 42.091, Attack on assistance animal.

(b) DADS may revoke a facility license if DADS becomes aware of:

(1) a conviction described in subsection (a)(1) of this section regardless of the date of the conviction; or

(2) a conviction described in subsection (a)(2) of this section if the conviction occurred during the five years preceding the date DADS became aware of the conviction.

(c) DADS considers a conviction of an offense under the laws of another state, federal law, or the Uniform Code of Military Justice containing elements that are substantially similar to the elements of an offense listed in subsection (a) of this section as if it is a conviction of one of the listed offenses.

(d) DADS considers the following information when deciding if it will deny a facility license, refuse to renew a facility license, or revoke a facility license in accordance with this section:

(1) the nature and seriousness of the offense;

(2) the relationship of the offense to the operation of a facility;

(3) the extent to which a facility license might offer an opportunity for the person to engage in activity similar to the offense;

(4) the age of the person at the time of the offense;

(5) the amount of time since the offense; and

(6) any other information provided by the person to explain the circumstances of the offense or to evidence the person's conduct since the offense.

(e) For purposes of this section, a person who is placed on deferred adjudication community supervision for an offense listed in this section, successfully completes the period of deferred adjudication community supervision, and receives a dismissal and discharge in accordance with Section 5(c), Article 42.12, Code of Criminal Procedure, is not considered convicted of the offense for which the person received deferred adjudication community supervision.

§99.3.Adverse Licensing Record.

DADS may deny an application for a license or refuse to renew a license for a facility described in §99.1(2)(A) - (E) of this chapter (relating to Definitions) if:

(1) any of the following persons are listed in a record maintained by a health and human services agency under Texas Government Code §531.952:

(A) the applicant or facility license holder;

(B) a person listed on an initial or renewal application; or

(C) a controlling person of the applicant or facility license holder; and

(2) the health and human services agency's action that resulted in the person being listed in a record maintained under Texas Government Code §531.952 is based on:

(A) an act or omission that resulted in physical or mental harm to an individual in the care of the person;

(B) a threat to the health, safety, or well-being of an individual in the care of the person;

(C) the physical, mental, or financial exploitation of an individual in the care of the person; or

(D) a determination by the health and human services agency that the person has committed an act or omission that renders the person unqualified or unfit to fulfill the obligations of the license, listing, or registration.

§99.4.Registry Listings Barring Licensure.

DADS may deny an application for an initial facility license, or refuse to renew a facility license, if the applicant for the facility license, the facility license holder, or a controlling person of the applicant or facility license holder is listed:

(1) as unemployable on the Employee Misconduct Registry maintained by DADS in accordance with Texas Health and Safety Code, Chapter 253; or

(2) with a revoked or suspended status on the Nurse Aide Registry maintained by DADS in accordance with Texas Health and Safety Code, Chapter 250.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 27, 2016.

TRD-201606727

Lawrence Hornsby

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: February 12, 2017

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