TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES

CHAPTER 3. RESPONSIBILITIES OF STATE FACILITIES

SUBCHAPTER E. DEATH OF AN INDIVIDUAL

40 TAC §§3.501 - 3.506, 3.508, 3.509

As required by Texas Government Code §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all of its functions were transferred to the Texas Health and Human Services Commission (HHSC) in accordance with Texas Government Code §531.0201 and §531.02011. Rules of the former DADS are codified in Texas Administrative Code (TAC) Title 40, Part 1, and will be repealed or administratively transferred to 26 TAC, Health and Human Services, as appropriate. Until such action is taken, the rules in 40 TAC Part 1 govern functions previously performed by DADS that have transferred to HHSC. Texas Government Code §531.0055 requires the Executive Commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, including rules in 40 TAC Part 1. Therefore, the Executive Commissioner of HHSC proposes the repeal of 40 TAC Chapter 3, Subchapter E, concerning Death of an Individual, which comprises §§3.501, concerning Discovery, 3.502, concerning Reporting and Notification, 3.503, concerning Medical Certification of Death and Autopsies, 3.504, concerning Disposition, 3.505, concerning Clinical Death Review, 3.506, concerning Administrative Death Review, 3.508, concerning State Office Mortality Review, and 3.509, concerning Independent Mortality Review.

BACKGROUND AND PURPOSE

The proposal is necessary to facilitate updates to internal operating procedures for which there are no statutory requirements for adoption in the TAC by repealing the rules in Title 40, Chapter 3, Subchapter E, concerning Death of an Individual. While the state supported living centers (SSLCs) will continue to conduct both facility-level and state office-level reviews of the deaths of individuals served, the adoption of these procedures in the TAC impedes the SSLCs' ability to make necessary and timely updates to the procedures. This proposal also complies with Texas Government Code §531.851(d), which requires HHSC to identify the manner in which the SSLCs must report the death of an individual served to the independent mortality review organization contracted pursuant to Section 531.851(c) to conduct an independent mortality review. This independent mortality review is in addition to the reviews conducted at the facility and state office levels. This proposal repeals HHSC rules in Title 40 and a new rule is proposed in 26 TAC 967, concerning State Supported Living Center Independent Mortality Review, which is being simultaneously proposed in this issue of the Texas Register.

SECTION-BY-SECTION SUMMARY

Proposed repeal of Chapter 3, Subchapter E, concerning Death of an Individual, is necessary to facilitate updates to internal operating procedures for which there are no statutory requirements for adoption.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the repeals will be in effect, enforcing or administering the repeals do not have foreseeable implications relating to costs or revenues of state or local governments.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the repeals will be in effect:

(1) the proposed repeals will not create or eliminate a government program;

(2) implementation of the proposed repeals will not affect the number of HHSC employee positions;

(3) implementation of the proposed repeals will result in no assumed change in future legislative appropriations;

(4) the proposed repeals will not affect fees paid to HHSC;

(5) the proposed repeals will not create a new rule;

(6) the proposed repeals will repeal existing rules;

(7) the proposed repeals will not change the number of individuals subject to the repeals; and

(8) the proposed repeals will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. The repeals do not apply to small or micro-businesses or rural communities.

LOCAL EMPLOYMENT IMPACT

The proposed repeals will not affect the local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these repeals because the repeals do not impose a cost on regulated persons.

PUBLIC BENEFIT AND COSTS

Laura Cazabon-Braly, SSLCs Associate Commissioner, has determined that for each year of the first five years the repeals are in effect, the public benefit will be more timely adoption by the SSLCs of evolving standards and practices related to the death review procedures resulting in improved care of individuals served in SSLCs.

Trey Wood has also determined that for the first five years the repeals are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed repeals because the repeals apply only to HHSC.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that the 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

Written comments on the proposal may be submitted to HHSC, Health and Specialty Care System, Mail Code E-619, P.O. Box 13247, Austin, Texas 78711-3247, or by email to HealthandSpecialtyCare@hhsc.state.tx.us.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) faxed or emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 22R029" in the subject line.

STATUTORY AUTHORITY

The repeals are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and §531.851(d), which requires the adoption of rules regarding the manner in which the death of an individual served by the SSLC must be reported to the contracted organization conducting independent mortality reviews.

The repeals affect Texas Government Code §531.0055 and §531.851(d).

§3.501.Discovery.

§3.502.Reporting and Notification.

§3.503.Medical Certification of Death and Autopsies.

§3.504.Disposition.

§3.505.Clinical Death Review.

§3.506.Administrative Death Review.

§3.508.State Office Mortality Review.

§3.509.Independent Mortality Review.

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 July 25, 2022.

TRD-202202776

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: September 4, 2022

For further information, please call: (512) 438-3049