Proposed Rules Title 26

TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 509. FREESTANDING EMERGENCY MEDICAL CARE FACILITIES

SUBCHAPTER C. OPERATIONAL REQUIREMENTS

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §509.70, concerning Workplace Violence Prevention.

BACKGROUND AND PURPOSE

The proposed new rule is necessary to implement Texas Health and Safety Code (HSC) Chapter 331, added by Senate Bill (S.B.) 240, 88th Legislature, Regular Session, 2023.

The proposed rule requires certain facilities, including freestanding emergency medical care (FEMC) facilities, to establish a workplace violence prevention committee or authorize an existing facility committee to develop the workplace violence prevention plan. The proposed rule specifies the required membership for a committee. The proposed rule requires a facility to adopt, implement, and enforce a written workplace violence prevention policy and plan to protect health care providers and employees from violent behavior and threats of violent behavior occurring at the facility.

The proposed rule requires the committee to annually evaluate the written workplace violence prevention plan and report the results of the evaluation to the facility's governing body. The proposed rule requires each facility to make a copy of the facility's workplace violence prevention plan available to each health care provider or employee while providing protection from the release of information in the plan that would pose a security threat if made public.

The proposed rule establishes minimum requirements for a facility to respond to workplace violence incidents and creates protections for individuals with respect to reporting incidents of workplace violence.

HSC §331.006 permits HHSC to take disciplinary action against a provider that violates HSC Chapter 331 on or after September 1, 2023, as if the provider violated an applicable licensing law.

FISCAL NOTE

Trey Wood, HHSC Chief Financial Officer, has determined that for each year of the first five years that the rule will be in effect, enforcing or administering the rule does 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 rule will be in effect:

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

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

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

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

(5) the proposed rule will create a new regulation;

(6) the proposed rule will not expand, limit, or repeal an existing regulation;

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

(8) the proposed rule 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 because the proposed rule does not impose a cost or require small businesses, micro-businesses, or rural communities to alter their current business practices.

LOCAL EMPLOYMENT IMPACT

The proposed rule will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to this rule because the rule is necessary to protect the health, safety, and welfare of the residents of Texas, does not impose a cost on regulated persons, and is necessary to implement legislation that does not specifically state that §2001.0045 applies to the rule.

PUBLIC BENEFIT AND COSTS

Stephen Pahl, Deputy Executive Commissioner for Regulatory Services, has determined that for each year of the first five years the rule is in effect, the public will benefit from the new rule promoting a safe and secure environment for facility healthcare providers and employees.

Trey Wood has also determined that for the first five years the rule is in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rule because the rule does not require persons subject to the rule to alter their current business practices as these entities are required to comply with the law as added by S.B. 240 and the new section only ensures consistency with current statutory requirements.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that the proposal does not restrict or limit an owner's right to the owner's 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 Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 701 W. 51st Street, Austin, Texas 78751; or emailed to HCR_PRU@hhs.texas.gov.

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) emailed before midnight on the last day of the comment period. If 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 24R013" in the subject line.

STATUTORY AUTHORITY

The new section is 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; HSC §254.101, which authorizes HHSC to adopt rules regarding FEMC facilities; and HSC Chapter 331, which requires licensed FEMC facilities to adopt a workplace violence prevention policy and adopt and implement a workplace violence prevention plan in accordance with that chapter.

The new section implements Texas Government Code §531.0055 and HSC Chapter 331.

§509.70.Workplace Violence Prevention.

(a) In accordance with Texas Health and Safety Code (HSC) §331.002, a facility shall establish a workplace violence prevention committee or authorize an existing facility committee to develop a workplace violence prevention plan.

(b) A facility shall ensure the committee includes at least:

(1) one registered nurse who provides direct care to the facility's patients;

(2) one physician licensed to practice medicine in this state who provides direct care to the facility's patients; and

(3) one facility employee who provides security services for the facility if any and if practicable.

(c) A health care system that owns or operates more than one facility may establish a single workplace violence prevention committee for all of the system's facilities if:

(1) the committee develops a violence prevention plan for implementation at each facility in the system; and

(2) data related to violence prevention remains distinctly identifiable for each facility in the system.

(d) A facility shall adopt, implement, and enforce a written workplace violence prevention policy to protect health care providers and employees from violent behavior and threats of violent behavior occurring at the facility. In accordance with HSC §331.003, the policy shall:

(1) require the facility to:

(A) provide significant consideration of the violence prevention plan recommended by the facility's committee; and

(B) evaluate any existing facility violence prevention plan;

(2) encourage health care providers and facility employees to provide confidential information on workplace violence to the committee;

(3) include a process to protect from retaliation facility health care providers or employees who provide information to the committee; and

(4) comply with HHSC rules relating to workplace violence.

(e) A facility shall adopt, implement, and enforce a written workplace violence prevention plan developed by the committee. In accordance with HSC §331.004, the plan shall:

(1) be based on a facility setting;

(2) adopt a definition of "workplace violence" that includes:

(A) an act or threat of physical force against a health care provider or employee that results in, or is likely to result in, physical injury or psychological trauma; and

(B) an incident involving the use of a firearm or other dangerous weapon, regardless of whether a health care provider or employee is injured by the weapon;

(3) require the facility to at least annually provide workplace violence prevention training or education that may be included in other required training or education provided to the facility's health care providers and employees who provide direct patient care;

(4) prescribe a system for responding to and investigating violent incidents or potentially violent incidents at the facility;

(5) address physical security and safety;

(6) require the facility to solicit information from health care providers and employees when developing and implementing a workplace violence prevention plan;

(7) allow health care providers and employees to report workplace violence incidents through the facility's existing occurrence reporting systems; and

(8) require the facility to adjust patient care assignments, to the extent practicable, to prevent a health care provider or facility employee from treating or providing services to a patient who has intentionally physically abused or threatened the provider or employee.

(f) The written workplace violence prevention plan may satisfy the requirements of subsection (e) of this section by referencing other internal facility policies and documents.

(g) At least annually after the date a facility adopts a written workplace violence prevention plan required by subsection (e) of this section, the committee shall:

(1) review and evaluate the workplace violence prevention plan; and

(2) report the results of the evaluation to the facility's governing body.

(h) Each facility shall make available on request an electronic or printed copy of the facility's workplace violence prevention plan to each health care provider or facility employee. If the committee determines the plan contains information that would pose a security threat if made public, the committee may redact that information before providing the plan.

(i) In accordance with HSC §331.005, after an incident of workplace violence occurs, a facility shall offer immediate post-incident services, including any necessary acute medical treatment for each facility health care provider or employee who is directly involved in the incident.

(j) In accordance with HSC §331.005, a facility may not discourage a health care provider or employee from exercising the provider's or employee's right to contact or file a report with law enforcement regarding a workplace violence incident.

(k) In accordance with HSC §331.005, a facility shall prohibit facility personnel from disciplining, including by suspension or termination of employment, discriminating against, or retaliating against another person who:

(1) in good faith reports a workplace violence incident; or

(2) advises a health care provider or employee of the provider's or employee's right to report a workplace violence incident.

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 April 22, 2024.

TRD-202401680

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: June 2, 2024

For further information, please call: (512) 834-4591

CHAPTER 510. PRIVATE PSYCHIATRIC HOSPITALS AND CRISIS STABILIZATION UNITS

SUBCHAPTER C. OPERATIONAL REQUIREMENTS

26 TAC §510.47

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §510.47, concerning Workplace Violence Prevention.

BACKGROUND AND PURPOSE

The proposed new rule is necessary to implement Texas Health and Safety Code (HSC) Chapter 331, added by Senate Bill (S.B.) 240, 88th Legislature, Regular Session, 2023.

The proposed rule requires certain facilities, including private psychiatric hospitals, to establish a workplace violence prevention committee or authorize an existing facility committee to develop the hospital's workplace violence prevention plan. The proposed rule specifies the required membership for a committee. The proposed rule requires a hospital to adopt, implement, and enforce a written workplace violence prevention policy and plan to protect health care providers and employees from violent behavior and threats of violent behavior occurring at the hospital.

The proposed rule requires the committee to annually evaluate the written workplace violence prevention plan and report the results of the evaluation to the hospital's governing body. The proposed rule requires each hospital to make a copy of the hospital's workplace violence prevention plan available to each hospital health care provider or employee while providing protection from the release of information in the plan that would pose a security threat if made public.

The proposed rule establishes minimum requirements for a hospital to respond to workplace violence incidents and creates protections for individuals with respect to reporting incidents of workplace violence.

HSC §331.006 permits HHSC to take disciplinary action against a provider that violates HSC Chapter 331 on or after September 1, 2023, as if the provider violated an applicable licensing law.

FISCAL NOTE

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

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

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

(5) the proposed rule will create a new regulation;

(6) the proposed rule will not expand, limit, or repeal an existing regulation;

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

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

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

LOCAL EMPLOYMENT IMPACT

The proposed rule will not affect a local economy.

COSTS TO REGULATED PERSONS

PUBLIC BENEFIT AND COSTS

Trey Wood has also determined that for the first five years the rule is in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rule because the rule does not require persons subject to the rule to alter their current business practices; these entities are required to comply with the law as added by S.B. 240 and the new section only ensures consistency with current statutory requirements.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

STATUTORY AUTHORITY

The new section is 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; HSC §577.010, which authorizes HHSC to adopt rules regarding private mental hospitals and other mental health facilities; and HSC Chapter 331, which requires licensed mental hospitals to adopt a workplace violence prevention policy and adopt and implement a workplace violence prevention plan in accordance with that chapter.

The new section implements Texas Government Code §531.0055 and HSC Chapter 331.

§510.47.Workplace Violence Prevention.

(a) In accordance with Texas Health and Safety Code (HSC) §331.002, a hospital shall establish a workplace violence prevention committee or authorize an existing hospital committee to develop a workplace violence prevention plan.

(b) A hospital shall ensure the committee includes at least:

(1) one registered nurse who provides direct care to the hospital's patients;

(2) one physician licensed to practice medicine in this state who provides direct care to the hospital's patients; and

(3) one hospital employee who provides security services for the hospital if any and if practicable.

(c) A health care system that owns or operates more than one hospital may establish a single workplace violence prevention committee for all of the system's hospitals if:

(1) the committee develops a violence prevention plan for implementation at each hospital in the system; and

(2) data related to violence prevention remains distinctly identifiable for each hospital in the system.

(d) A hospital shall adopt, implement, and enforce a written workplace violence prevention policy to protect health care providers and employees from violent behavior and threats of violent behavior occurring at the hospital. In accordance with HSC §331.003, the policy shall:

(1) require the hospital to:

(A) provide significant consideration of the violence prevention plan recommended by the hospital's committee; and

(B) evaluate any existing hospital violence prevention plan;

(2) encourage health care providers and employees to provide confidential information on workplace violence to the committee;

(3) include a process to protect from retaliation health care providers or employees who provide information to the committee; and

(4) comply with HHSC rules relating to workplace violence.

(e) A hospital shall adopt, implement, and enforce a written workplace violence prevention plan developed by the committee. In accordance with HSC §331.004, the plan shall:

(1) be based on a hospital setting;

(2) adopt a definition of "workplace violence" that includes:

(A) an act or threat of physical force against a health care provider or employee that results in, or is likely to result in, physical injury or psychological trauma; and

(B) an incident involving the use of a firearm or other dangerous weapon, regardless of whether a health care provider or employee is injured by the weapon;

(3) require the hospital to at least annually provide workplace violence prevention training or education that may be included in other required training or education provided to the health care providers and employees who provide direct patient care;

(4) prescribe a system for responding to and investigating violent incidents or potentially violent incidents at the hospital;

(5) address physical security and safety;

(6) require the hospital to solicit information from the health care providers and employees when developing and implementing a workplace violence prevention plan;

(7) allow health care providers and employees to report workplace violence incidents through the hospital's existing occurrence reporting systems; and

(8) require the hospital to adjust patient care assignments, to the extent practicable, to prevent a health care provider or employee from treating or providing services to a patient who has intentionally physically abused or threatened the provider or employee.

(f) The written workplace violence prevention plan may satisfy the requirements of subsection (e) of this section by referencing other internal hospital policies and documents.

(g) At least annually after the date a hospital adopts a written workplace violence prevention plan required by subsection (e) of this section, the committee shall:

(1) review and evaluate the workplace violence prevention plan; and

(2) report the results of the evaluation to the hospital's governing body.

(h) Each hospital shall make available on request an electronic or printed copy of the hospital's workplace violence prevention plan to each health care provider or hospital employee. If the committee determines the plan contains information that would pose a security threat if made public, the committee may redact that information before providing the plan.

(i) In accordance with HSC §331.005, after an incident of workplace violence occurs, a hospital shall offer immediate post-incident services, including any necessary acute medical treatment for each hospital health care provider or employee who is directly involved in the incident.

(j) In accordance with HSC §331.005, a hospital may not discourage a health care provider or employee from exercising the provider's or employee's right to contact or file a report with law enforcement regarding a workplace violence incident.

(k) In accordance with HSC §331.005, a hospital shall prohibit hospital personnel from disciplining, including by suspension or termination of employment, discriminating against, or retaliating against another person who:

(1) in good faith reports a workplace violence incident; or

(2) advises a health care provider or employee of the provider's or employee's right to report a workplace violence incident.

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 April 22, 2024.

TRD-202401681

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: June 2, 2024

For further information, please call: (512) 834-4591

CHAPTER 553. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §553.254, concerning Training Requirements for Staff Providing Personal Care Services to a Resident With Alzheimer's Disease or Related Disorder in a Facility that is Not an Alzheimer's Certified Facility; and amendments to §553.17, concerning Criteria for Licensing; §553.255, concerning All Staff Policy for Residents with Alzheimer's Disease or a Related Disorder; §553.257, concerning Human Resources; and §553.329, concerning HHSC Investigation of Allegations of Abuse, Neglect or Exploitation.

BACKGROUND AND PURPOSE

The purpose of the proposal is to implement House Bill (H.B.) 1009, H.B. 1673, and H.B. 4696 from the 88th Legislature, Regular Session, 2023. H.B. 1009 requires a facility to suspend an employee who HHSC has determined has engaged in reportable conduct during any applicable appeals process. H.B. 1673 requires facilities that are not Alzheimer's certified to nevertheless ensure all staff complete training specific to Alzheimer's disease and related disorders. H.B. 4696 allows HHSC to conduct an offsite survey unless the investigation is for alleged abuse or neglect. The proposal also clarifies that an accreditation commission is able to conduct a life safety code survey of a facility based on the requirements in Subchapter D of Chapter 553, Facility Construction.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §553.17 clarifies the ability of an on-site accreditation survey by an accreditation commission to conduct a survey based on requirements in Subchapter D of this chapter, Facility Construction.

Proposed new §553.254 adds training requirements for staff members of assisted living facilities that are not Alzheimer's certified who provide care to residents with Alzheimer's disease or related disorders.

The proposed amendment to §553.255 specifies that the policy requirements of this section may be satisfied by requiring the training described under proposed new §553.254 (for non-Alzheimer's certified facilities) or existing §553.303 (for Alzheimer's certified facilities).

The proposed amendment to §553.257 adds an employee suspension requirement when HHSC determines that a facility employee has engaged in reportable conduct.

The proposed amendment to §553.329 removes the requirement for HHSC to perform in-person complaint investigations unless abuse or neglect has been reported or the complaint involves unemancipated minors who have been inappropriately placed in a facility.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local governments. The new rules and amendments are merely codifying current procedures.

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

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

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

(5) the proposed rules will create a new regulation;

(6) the proposed rules will expand existing regulations;

(7) the proposed rules will not change the number of individuals subject to the rule(s); and

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

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

Trey Wood has also determined that there could be an adverse economic effect on small businesses, micro-businesses, or rural communities.

An assisted living facility may incur a cost due to the implementation of H.B. 1009 if a staff person is suspended while he or she goes through the appeals process for being added to the employee misconduct registry (EMR). This might not impact all assisted living facilities but could affect those that may need to hire additional staff on a temporary basis while the staff person is suspended.

HHSC lacks sufficient information to determine the number of small businesses, micro-businesses, or rural communities subject to the rule.

HHSC determined that alternative methods to achieve the purpose of the proposed rule for small businesses, micro-businesses, or rural communities would not be consistent with ensuring the health and safety of facility residents.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas, including clients of facilities and to implement legislation that does not specifically state that Section 2001.0045 applies to the rule.

PUBLIC BENEFIT AND COSTS

Trey Wood has also determined that for the first five years the rules are in effect, there could be an adverse economic effect on persons required to comply with these proposed rules. A facility may incur a cost due to implementation of H.B. 1009 if an agency staff person is suspended while he or she goes through the appeals process for being added to the EMR. This might not impact all facilities but could impact those who may need to hire additional staff on a temporary basis while the staff member is on suspension. HHSC lacks sufficient data to estimate costs to those required to comply with the rule as proposed.

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 Texas Health and Human Services Commission, Mail Code E-370, 701 W. 51st Street, Austin, Texas 78751, or by email to HHSCLTCRRules@hhs.texas.gov.

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) 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 23R062" in the subject line.

SUBCHAPTER B. LICENSING

26 TAC §553.17

STATUTORY AUTHORITY

The amendment is 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; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rule-making authority; and Texas Health and Safety Code §247.025 and §247.026, which provide that the Executive Commissioner of HHSC shall adopt rules necessary to implement Chapter 247 and to ensure the quality of care and protection of assisted living facility residents' health and safety, respectively.

The amendment implements Texas Government Code §531.0055 and §531.033 and Texas Health and Safety Code §247.025 and §247.026.

§553.17.Criteria for Licensing.

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

(1) HHSC 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.

(2) The presence or absence of any one factor in paragraph (1) 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) the building in which the facility is housed:

(A) meets local fire ordinances;

(B) is approved by the local fire authority;

(C) meets HHSC licensing standards in accordance with Subchapter D of this chapter (relating to Facility Construction) based on an on-site inspection by HHSC or the standards for accreditation based on an on-site accreditation survey by an accreditation commission; and

(D) if located in a county of more than 3.3 million residents for initial license applications submitted or issued on or after December 6, 2022, is not located in a 100-year floodplain; and

(2) operation of the facility meets HHSC licensing standards based on an on-site health inspection by HHSC, which must include observation of the care of a resident; or

(3) the facility meets the standards for accreditation based on an on-site accreditation survey by the accreditation commission.

(d) An applicant who chooses the option authorized in subsection (c)(3) of this section must contact HHSC to determine which accreditation commissions are available to meet the requirements of that subsection. If a license holder uses an on-site accreditation survey by an accreditation commission, as provided in this subsection and §553.33(i) of this subchapter (relating to Renewal Procedures and Qualifications), the license holder must:

(1) provide written notification to HHSC by submitting an updated application in the licensing system within five working days after the license holder receives a notice of change in accreditation status from the accreditation commission; and

(2) include a copy of the notice of change with its written notification to HHSC.

(e) HHSC issues a license to a facility meeting all requirements of this chapter. The facility must not exceed the maximum allowable number of residents specified on the license.

(f) HHSC denies an application for an initial license or a renewal of a license if:

(1) the applicant, license holder, controlling person, or any person required to be disclosed on the application for licensure 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 be disclosed on the application for licensure 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 be disclosed on the application for licensure has been revoked.

(g) 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.

(h) HHSC 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 be disclosed on the application for licensure:

(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 §553.751(a)(2) - (9) of this chapter (relating to Administrative Penalties);

(3) aids, abets, or permits a substantial violation described in paragraph (1) or (2) of this subsection about which the person had or should have had knowledge;

(4) fails to provide the required information, facts, or references;

(5) engages in the following:

(A) knowingly submits false or intentionally misleading statements to HHSC;

(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 §553.47 of this subchapter (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;

(8) violates Texas Health and Safety Code §247.021 by operating a facility without a license; or

(9) is subject to denial or refusal as described in Chapter 560 of this title (relating to Denial or Refusal of License) during the time frames described in that chapter.

(i) Without limitation, HHSC reviews all information provided by an applicant, a license holder, a person required to be disclosed on the application for licensure, or a manager when considering grounds for denial of an initial license application or a renewal application in accordance with subsection (h) of this section. HHSC may grant a license if HHSC finds the applicant, license holder, person required to be disclosed on the application for licensure, affiliate, or manager is able to comply with the rules in this chapter.

(j) HHSC reviews final actions when considering the grounds for denial of an initial license application or renewal application in accordance with subsections (f) and (h) of this section. An action is final when routine administrative and judicial remedies are exhausted. An applicant must disclose all actions, whether pending or final.

(k) If an applicant owns multiple facilities, HHSC 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.

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 April 18, 2024.

TRD-202401649

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: June 2, 2024

For further information, please call: (512) 438-3161

SUBCHAPTER E. STANDARDS FOR LICENSURE

26 TAC §§553.254, 553.255, 553.257

STATUTORY AUTHORITY

The new section and amendments 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; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rule-making authority; and Texas Health and Safety Code §247.025 and §247.026, which provide that the Executive Commissioner of HHSC shall adopt rules necessary to implement Chapter 247 and to ensure the quality of care and protection of assisted living facility residents' health and safety, respectively.

The new section and amendments implement Texas Government Code §531.0055 and §531.033 and Texas Health and Safety Code §247.025 and §247.026.

§553.254.Training Requirements for Staff Providing Personal Care Services to a Resident With Alzheimer's Disease or a Related Disorder in a Facility that is Not an Alzheimer's Certified Facility.

(a) A facility that provides personal care services to a resident with Alzheimer's disease or a related disorder that is not an Alzheimer's certified facility must require a staff member to complete competency-based training and annual continuing education on Alzheimer's disease and related disorders in accordance with this section.

(1) The training required in this section may be included as part of the initial training and continuing education required in §553.253 of this subchapter (relating to Employee Qualifications and Training).

(2) The training required in this section may satisfy the training required by facility policy under §553.255 of this subchapter (relating to All Staff Policy for Residents with Alzheimer's Disease or a Related Disorder).

(b) A facility must require a manager to:

(1) complete four hours of training and pass a competency-based evaluation on:

(A) Alzheimer's disease and related disorders;

(B) provision of person-centered care;

(D) activities of daily living for a resident with Alzheimer's disease or a related disorder;

(E) common behaviors and communications associated with residents with Alzheimer's disease or related disorders.

(F) administrative support services related to information for:

(i) comorbidities management;

(ii) care planning;

(iii) provision of medically appropriate education and support services and resources in the community; and

(iv) including person-centered care to residents with Alzheimer's disease or related disorders and the resident's family; and

(G) staffing requirements that will:

(i) facilitate collaboration and cooperation among facility staff members; and

(ii) ensure each staff member obtains appropriate informational materials and training to properly care for and interact with a resident with Alzheimer's disease or a related disorder based on the staff member's position; and

(H) establishing a supportive and therapeutic environment for residents with Alzheimer's disease or related disorders to enhance the sense of community among the residents and within the facility; and

(I) transitioning care and coordination of services for residents with Alzheimer's disease or related disorders; and

(2) after the date of successfully completing the training and competency-based evaluation required in paragraph (1) of this subsection, complete two hours of annual continuing education on best practices related to treatment and provision of care to residents with Alzheimer's disease or related disorders.

(1) complete four hours of training and pass a competency-based evaluation on:

(A) Alzheimer's disease and related disorders;

(B) provision of person-centered care;

(D) activities of daily living for a resident with Alzheimer's disease or a related disorder; and

(E) common behaviors and communications associated with a resident with Alzheimer's disease and related disorders;

(2) complete the requirements in paragraph (1) of this subsection prior to performing personal care services; and

(3) after successfully completing the training and competency-based evaluation required in paragraph (1) of this subsection, complete two hours of continuing education that includes best practices related to the treatment of and provision of care to residents with Alzheimer's disease or related disorders.

(d) A facility must require each staff member who is not a direct service staff member, including housekeeping staff, front desk staff, maintenance staff, and other staff members with incidental but recurring contact with a resident with Alzheimer's disease or a related disorder, to complete training and pass a competency-based evaluation on:

(1) Alzheimer's disease and related disorders;

(2) provision of person-centered care; and

(3) common behaviors and communications associated with a resident with Alzheimer's disease and related disorders.

(e) A facility must:

(1) provide the training completion certificate to the staff member, including the manager; and

(2) maintain records of each certificate for all staff, including the manager, in accordance with the facility's records retention policies.

(f) A facility staff member who successfully completes the training required by this section, passes the evaluation, and then transfers employment to another facility is not required to satisfy these requirements for the new facility if there is less than a two-year lapse of employment with a facility.

§553.255.All Staff Policy for Residents with Alzheimer's Disease or a Related Disorder.

(a) A facility must adopt, implement, and enforce a written policy that:

(1) requires a facility employee who provides direct care to a resident with Alzheimer's disease or a related disorder to successfully complete training in the provision of care to residents with Alzheimer's disease and related disorders; and

(2) ensures the care and services provided by a facility employee to a resident with Alzheimer's disease or a related disorder meet the specific identified needs of the resident relating to the diagnosis of Alzheimer's disease or a related disorder.

(b) The training required for facility employees under subsection (a)(1) of this section may be satisfied by completing the training required under §553.254 of this subchapter (relating to Training Requirements for Staff Providing Personal Care Services to a Resident With Alzheimer's Disease or a Related Disorder in a Facility that is Not an Alzheimer's Certified Facility) or §553.303 of this chapter (relating to Staff Training) but must include information about:

(1) symptoms of dementia;

(2) stages of Alzheimer's disease;

(3) person-centered behavioral interventions; and

(4) communication with a resident with Alzheimer's disease or a related disorder.

§553.257.Human Resources.

(a) Personnel records. A facility must keep current and complete personnel records on a facility employee for review by HHSC staff including:

(1) documentation that the facility performed a criminal history check;

(2) an annual employee misconduct registry check;

(3) an annual nurse aide registry check;

(4) documentation of initial tuberculosis screenings referenced in §553.261(f) of this subchapter (relating to Coordination of Care);

(5) documentation of the employee's compliance with or exemption from the facility vaccination policy referenced in §553.261(f) of this subchapter;

(6) the signed statement from the employee referenced in §553.273 of this subchapter (relating to Abuse, Neglect, or Exploitation Reportable to HHSC by Facilities), acknowledging that the employee may be criminally liable for the failure to report abuse, neglect, and exploitation; and

(7) a signed disclosure statement, indicating whether the employee:

(A) has been convicted of an offense described in Texas Health and Safety Code §250.006; and

(B) has lived in a state other than Texas within the past five years.

(b) Investigation of facility employees.

(1) A facility must comply with the provisions of Texas Health and Safety Code, Chapter 250.

(2) Before a facility hires an employee, the facility must search the employee misconduct registry (EMR) established under §253.007, Texas Health and Safety Code, and the HHSC nurse aide registry (NAR) to determine if the individual is designated in either registry as unemployable based on employee misconduct. Both registries can be accessed on the HHSC Internet website.

(3) A facility is prohibited from hiring or continuing to employ a person who is listed in the EMR or NAR as unemployable or who has been convicted of an offense listed in Texas Health and Safety Code §250.006 as a bar to employment or is a contraindication to employment with the facility.

(4) A facility must provide notification about the EMR to an employee in accordance with §561.3 of this title [~~26 TAC §711.1413~~] (relating to Employment and Registry Information).

(5) In addition to the initial search of the NAR and the EMR, a facility must conduct a search of the NAR and the EMR to determine if the employee is designated in either registry as unemployable at least every 12 months.

(6) A facility must keep a copy of the results of the initial and annual searches of the NAR and EMR in the employee's personnel file.

(7) If an applicant for employment indicates on the disclosure statement that he or she [~~they~~] have lived in another state within the past five years, the facility must conduct a name-based criminal history check in each state in which the applicant previously resided within the five-year period. A facility may hire the applicant pending the results of the name-based criminal history check in each state, but the employee must not be in a position that has direct contact with residents.

(8) If HHSC determines that a facility employee has engaged in reportable conduct, the facility must:

(A) suspend the employment of the employee while the employee exhausts any applicable appeals process, including informal and formal appeals and any hearing or judicial review conducted in accordance with Texas Health and Safety Code §253.004 or §253.005, pending a final decision by an administrative law judge; and

(B) not reinstate the employee's employment during the course of any applicable appeals process.

(9) For the purpose of paragraph (8) of this subsection, reportable conduct includes:

(A) abuse or neglect that causes or may cause death or harm to a resident;

(B) sexual abuse of a resident;

(D) emotional, verbal, or psychological abuse that causes harm to a resident.

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 April 18, 2024.

TRD-202401650

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: June 2, 2024

For further information, please call: (512) 438-3161

SUBCHAPTER G. INSPECTIONS, INVESTIGATIONS, AND INFORMAL DISPUTE RESOLUTION

26 TAC §553.329

STATUTORY AUTHORITY

The amendment implements Texas Government Code §531.0055 and §531.033 and Texas Health and Safety Code §247.025 and §247.026.

§553.329.HHSC Investigation of Allegations of Abuse, Neglect, or Exploitation.

(a) In accordance with the memorandum of understanding (relating to Memorandum of Understanding Concerning Protective Services for the Elderly), between HHSC and the Texas Department of Family and Protective Services (DFPS), HHSC receives and investigates reports of abuse, neglect, and exploitation of elderly and disabled persons or other residents living in facilities licensed under this chapter.

(b) HHSC only investigates complaints of abuse, neglect, or exploitation when:

(1) the act occurs in the facility;

(2) the facility is responsible for the supervision of the resident at the time the act occurs; or

(3) the alleged perpetrator is affiliated with the facility.

[(b) HHSC only investigates complaints of abuse, neglect, or exploitation when the act occurs in the facility, when the licensed facility is responsible for the supervision of the resident at the time the act occurs, or when the alleged perpetrator is affiliated with the facility. Other complaints of abuse, neglect, or exploitation not meeting these criteria must be referred to DFPS.]

(c) HHSC refers all other complaints of abuse, neglect, or exploitation not meeting subsection (b) of this section to DFPS.

[(c) Complaint investigations include a visit to the resident's facility and consultation with persons thought to have knowledge of the circumstances. If the facility fails to admit HHSC staff for a complaint investigation, HHSC seeks a probate or county court order for admission. Investigators may request of the court that a peace officer accompany them.]

(d) HHSC must make an on-site visit to a facility to investigate complaints of abuse or neglect and all complaints involving unemancipated minors who have been inappropriately placed in the facility. During such on-site visits, HHSC must consult with persons thought to have knowledge of the circumstances. HHSC may make an on-site visit to a facility to investigate all other types of complaints.

~~[(d) In cases concluded to be physical abuse, HHSC submits the written report of the HHSC investigation to the appropriate law enforcement agency.]~~

(e) If a facility fails to admit HHSC staff for an on-site investigation, HHSC seeks a probate or county court order for admission. An HHSC investigator may request of the court that a peace officer accompany the investigator.

(f) In cases concluded to be physical abuse, HHSC submits the written report of the HHSC investigation to the appropriate law enforcement agency.

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 April 18, 2024.

TRD-202401651

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: June 2, 2024

For further information, please call: (512) 438-3161

CHAPTER 571. VOLUNTARY RECOVERY HOUSING ACCREDITATION

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §571.1, concerning Purpose; §571.2, concerning Definitions; §571.3, concerning Approved Accrediting Organizations; §571.4, concerning Accreditation Not Required; §571.5, concerning Places Ineligible for Accreditation as a Recovery House; §571.11, concerning Standards for Accreditation; §571.21, Accrediting Organization Requirements; §571.31, concerning Soliciting; §571.32, concerning Advertising Restrictions; and §571.41, concerning Accrediting Organization Enforcement Actions in new Chapter 571, concerning Voluntary Recovery Housing Accreditation.

BACKGROUND AND PURPOSE

The purpose of the proposal is to implement House Bill (H.B.) 299, 88th Legislature, Regular Session, 2023.

H.B. 299 added new Texas Health and Safety Code (THSC) Chapter 469 to establish a voluntary accreditation program for recovery housing programs. THSC Chapter 469, in part, requires HHSC to adopt minimum standards for a voluntary recovery housing accreditation process. THSC §469.002(b) requires HHSC to approve only the National Alliance for Recovery Residences or the Oxford House Incorporated to serve as an accrediting organization that provides accreditation to qualifying recovery houses.

THSC Chapter 469 also defines several key terms, outlines the responsibilities of the accreditation organizations, clarifies certain places are ineligible for accreditation as a recovery house, requires certain recovery houses to designate a responsible party, requires HHSC to prepare an annual report, prohibits soliciting and certain advertising, outlines enforcement procedures for accreditation organizations, and clarifies effective September 1, 2025, a recovery house must be accredited by an accrediting organization under this chapter to receive state money.

The proposed new rules are necessary to establish and adopt the minimum standards for recovery housing accreditation required by THSC §469.002.

SECTION-BY-SECTION SUMMARY

Proposed new §571.1 describes the chapter's purpose.

Proposed new §571.2 defines relevant key terms used in the new chapter.

Proposed new §571.3 clarifies HHSC may approve only the National Alliance for Recovery Residences or the Oxford House Incorporated as an accrediting organization for a recovery house as required by THSC §469.002(b).

Proposed new §571.4 clarifies that seeking accreditation as a recovery house is voluntary. The new section also requires a recovery house to be accredited under the chapter and THSC Chapter 469 to receive state funding beginning September 1, 2025, as required by THSC §469.009.

Proposed new §571.5 describes the places that are ineligible for accreditation as a recovery house under THSC §469.003.

Proposed new §571.11 describes the standards for accreditation required under THSC §469.002(a).

Proposed new §571.21 describes the accreditation organization requirements required under THSC §469.002(c) and the designated responsible party requirements required under THSC §469.004.

Proposed new §571.31 describes the soliciting restrictions required under THSC §469.006.

Proposed new §571.32 describes the advertising restrictions required under THSC §469.007.

Proposed new §571.41 describes the accrediting organization enforcement actions required under THSC §469.008.

FISCAL NOTE

Trey Wood, HHSC Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local governments because the state funding for the recovery houses is already being dispersed. The new rules will allow the funds to be dispersed only to accredited houses after September 1, 2025, but will not impact the total amount of state funding available.

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

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

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

(5) the proposed rules will create a new regulation;

(6) the proposed rules will not expand, limit, or repeal existing regulations;

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

(8) the proposed rules 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 because participation in the accreditation process described in the proposed rules is voluntary.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules do not impose a cost on regulated persons and are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT AND COSTS

Stephen Pahl, Deputy Executive Commissioner for Regulatory Services, has determined that for each year of the first five years the rules are in effect, the public will benefit from a recovery housing organization who chooses to participate in this program having additional oversight from an accrediting organization and from rules that are consistent with statutory requirements.

Trey Wood has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because participation in the accreditation process described in the proposed rules is voluntary.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

SUBCHAPTER A. GENERAL PROVISIONS

26 TAC §§571.1 - 571.5

STATUTORY AUTHORITY

The new sections implement Texas Government Code §531.0055 and THSC Chapter 469.

§571.1.Purpose.

The purpose of this chapter is to:

(1) implement Texas Health and Safety Code (THSC) Chapter 469;

(2) establish the minimum standards for voluntary accreditation as a recovery house as required by THSC §469.002; and

(3) inform the public that accreditation under this chapter does not authorize a recovery house to provide chemical dependency treatment services.

§571.2.Definitions.

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

(1) Accrediting organization--:

(A) the National Alliance for Recovery Residences; or

(B) the Oxford House Incorporated.

(2) Applicant--A recovery house applying for accreditation.

(3) HHSC--The Texas Health and Human Services Commission.

(4) Personal care services--In accordance with Texas Health and Safety Code (THSC) §247.002:

(A) assistance with feeding, dressing, moving, bathing, or other personal needs or maintenance; or

(B) 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 an assisted living facility or who needs assistance to manage the person's personal life, regardless of whether a guardian has been appointed for the person.

(5) Recovery house--In accordance with THSC §469.001, a shared living environment that:

(A) promotes sustained recovery from substance use disorders by integrating residents into the surrounding community and providing a setting that connects residents to supports and services promoting sustained recovery from substance use disorders;

(B) is centered on peer support; and

(6) State health care regulatory agency--In accordance with THSC §161.131, a state agency that licenses a health care professional.

(7) THSC--Texas Health and Safety Code.

§571.3.Approved Accrediting Organizations.

In accordance with THSC §469.002(b), HHSC may approve only the National Alliance for Recovery Residences or the Oxford House Incorporated as an accrediting organization for a recovery house.

§571.4.Accreditation Not Required.

(a) The accreditation process outlined in this chapter is voluntary. A recovery house is encouraged to seek and maintain accreditation but is not required to be accredited to operate in the state of Texas.

(b) Effective September 1, 2025, in accordance with THSC §469.009, a recovery house that is not accredited by an accrediting organization under THSC Chapter 469 and this chapter is ineligible for and may not receive funding from the state of Texas.

§571.5.Places Ineligible for Accreditation as a Recovery House.

Pursuant to THSC §469.003, the following places are ineligible for accreditation as a recovery house:

(1) a home and community support services agency licensed under THSC Chapter 142;

(2) a nursing facility licensed under THSC Chapter 242;

(3) a continuing care facility regulated under THSC Chapter 246;

(4) an assisted living facility licensed under THSC Chapter 247;

(5) an intermediate care facility for individuals with an intellectual disability licensed under THSC Chapter 252;

(6) a boarding home facility, as defined by THSC §260.001;

(7) a chemical dependency treatment facility licensed under THSC Chapter 464, Subchapter A;

(8) a child-care facility licensed under Texas Human Resources Code Chapter 42;

(9) a family violence shelter center, as defined by Texas Human Resources Code §51.002;

(10) an entity qualified as a community home under Texas Human Resources Code Chapter 123; and

(11) a hotel, as defined by Texas Tax Code §156.001.

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 April 19, 2024.

TRD-202401673

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: June 2, 2024

For further information, please call: (512) 834-4591

SUBCHAPTER B. MINIMUM STANDARDS FOR ACCREDITATION

26 TAC §571.11

STATUTORY AUTHORITY

The new section is 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 THSC §469.002, which requires HHSC establish minimum standards for accreditation as a recovery house.

The new section implements Texas Government Code §531.0055 and THSC Chapter 469.

§571.11.Standards for Accreditation.

(a) In accordance with THSC §469.002(a), HHSC adopts by reference the following standards established by the National Alliance for Recovery Residences and the Oxford House Incorporated as minimum standards for accreditation as a recovery house:

(1) Recovery Residence Quality Standards published by the National Alliance for Recovery Residences on November 19, 2018; and

(2) the Oxford House manual published September 2017.

(b) In addition to the minimum standards in subsection (a) of this section, a recovery house:

(1) may not provide personal care services; and

(2) if accredited by the National Alliance for Recovery Residences, must designate at least one individual to serve as the responsible party for the recovery house in accordance with THSC §469.004.

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 April 19, 2024.

TRD-202401674

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: June 2, 2024

For further information, please call: (512) 834-4591

SUBCHAPTER C. ACCREDITING ORGANIZATION REQUIREMENTS

26 TAC §571.21

STATUTORY AUTHORITY

The new section is 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 THSC §469.002, which requires HHSC establish minimum standards for accreditation as a recovery house.

The new section implements Texas Government Code §531.0055 and THSC Chapter 469.

§571.21.Accrediting Organization Requirements.

(a) An accrediting organization shall:

(1) develop procedures to:

(A) provide an easily accessible method for a recovery house seeking accreditation to find, complete, and submit an accreditation application;

(B) before accrediting an applicant or reaccrediting a recovery house, ensure the applicant or accredited recovery house at a minimum meets:

(i) the accrediting organization's standards in §571.11(a) of this chapter (relating to Standards for Accreditation) adopted by HHSC by reference; and

(ii) the additional standards in §571.11(b) of this chapter;

(D) require an accredited recovery house to submit all required reaccreditation information before the recovery house's accreditation period expires;

(E) require an applicant or accredited recovery house to adjust its practices to meet the standards for accreditation or reaccreditation;

(F) take an adverse action under §571.41 of this chapter (relating to Accrediting Organization Enforcement Actions) when a recovery house fails to meet the standards described in paragraph (2) of this subsection; and

(G) assess application accreditation and reaccreditation fees;

(2) provide training to recovery house staff concerning the accreditation standards in §571.11 of this chapter;

(3) develop a code of ethics;

(4) annually provide the following information to HHSC:

(A) the total number of accredited recovery houses;

(B) the number of recovery houses accredited during the preceding year;

(D) the number of accredited recovery houses that had an accreditation revoked during the preceding year; and

(E) the reasons for the revocation; and

(5) ensure a recovery house does not offer or claim to offer chemical dependency treatment services as outlined in THSC §464.001(4) (relating to Definitions) and Title 25 Texas Administrative Code (25 TAC) Chapter 448 (relating to Standard of Care) at the site of the recovery house without a chemical dependency treatment facility license issued under 25 TAC Chapter 448 (relating to Standard of Care). A recovery house that offers chemical dependency treatment services is not eligible for accreditation under this chapter.

(b) In addition to the requirements in subsection (a) of this section, the National Alliance for Recovery Residences shall:

(1) require an applicant or accredited recovery house to designate at least one individual to serve as the recovery house's responsible party, in accordance with THSC §469.004;

(2) require the responsible party to:

(A) satisfactorily complete training the accrediting organization provides concerning the accreditation standards in §571.11 of this chapter and the accrediting organization's accreditation and reaccreditation requirements; and

(B) be responsible for administering the recovery house in accordance with the accreditation standards in this chapter and the accrediting organization's accreditation and reaccreditation requirements; and

(3) require an accredited recovery house to notify the accrediting organization before the 30th business day after the date of any change to the recovery house's designated responsible party.

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 April 19, 2024.

TRD-202401675

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: June 2, 2024

For further information, please call: (512) 834-4591

SUBCHAPTER D. PROHIBITED ACTIONS

26 TAC §571.31, §571.32

STATUTORY AUTHORITY

The new sections implement Texas Government Code §531.0055 and THSC Chapter 469.

§571.31.Soliciting.

Pursuant to THSC §469.006, an accrediting organization shall prohibit an accredited recovery house's responsible party designated under §571.21(b)(1) of this chapter (relating to Accrediting Organization Requirements), employee, or agent from offering to pay or agreeing to accept, directly or indirectly, overtly or covertly, remuneration in cash or in kind to or from another for securing or soliciting a patient or patronage for or from a person licensed, certified, or registered by a state health care regulatory agency.

§571.32.Advertising Restrictions.

Pursuant to THSC §469.007, an accrediting organization shall ensure a recovery house:

(1) does not advertise or otherwise communicate that the recovery house is accredited by an accrediting organization unless the recovery house is accredited by an accrediting organization in accordance with THSC Chapter 469 and this chapter; and

(2) does not advertise or cause to be advertised in any manner any false, misleading, or deceptive information about the recovery house.

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 April 19, 2024.

TRD-202401676

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: June 2, 2024

For further information, please call: (512) 834-4591

SUBCHAPTER E. ENFORCEMENT

26 TAC §571.41

STATUTORY AUTHORITY

The new section is 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 THSC §469.002, which requires HHSC establish minimum standards for accreditation as a recovery house.

The new section implements Texas Government Code §531.0055 and THSC Chapter 469.

§571.41.Accrediting Organization Enforcement Actions.

(a) Pursuant to THSC §469.008, if an accredited recovery house violates a provision in THSC Chapter 469 or in this chapter, the accrediting organization that issued the accreditation to the recovery house may suspend the accreditation for a period not to exceed six months while the accrediting organization conducts an audit of the recovery house.

(b) The accrediting organization may implement a corrective action plan or revoke the recovery house's accreditation after completing the audit under subsection (a) of this section.

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 April 19, 2024.

TRD-202401677

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: June 2, 2024

For further information, please call: (512) 834-4591

CHAPTER 745. LICENSING

SUBCHAPTER K. INSPECTIONS, INVESTIGATIONS, AND CONFIDENTIALITY

DIVISION 3. CONFIDENTIAL RECORDS

26 TAC §745.8483, §745.8497

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §745.8483, concerning What portions of a child care record are confidential, and new §745.8497, concerning What confidentiality requirements apply to a person who is an applicant for a permit, a permit holder, or a former permit holder, in Texas Administrative Code, Title 26, Chapter 745, Licensing, Subchapter K, Division 3, Confidential Records.

BACKGROUND AND PURPOSE

The proposal is necessary to implement Senate Bill (S.B.) 510 and a portion of House Bill (H.B.) 4696, 88th Legislature, Regular Session, 2023.

S.B. 510 added §552.11765 to Texas Government Code to require a state licensing authority to make confidential certain information regarding a permit applicant, permit holder, or former permit holder. Accordingly, HHSC Child Care Regulation (CCR) is proposing (1) a new rule that describes the confidentiality requirements that apply to an applicant for a permit, a permit holder, or a former permit holder; and (2) amending an existing rule that describes the confidential portions of a child care record to include a cross-reference to the new rule.

H.B. 4696 amended Texas Health and Safety Code §253.001(4) and Texas Human Resources Code §48.251(a)(3) and §48.252(b) and (c) to specify that HHSC Long-Term Care Regulation Provider Investigations (HHSC PI) is responsible for investigating an allegation of abuse, neglect, and exploitation of an elderly person or adult with a disability who resides in a residential child-care facility. Accordingly, CCR proposes amending one rule to add to the list of confidential information in a child care record any information that would interfere with an HHSC PI investigation if the information were released. Only a portion of H.B. 4696 is being implemented as part of this rule project; a separate project will complete the rule development to implement the bill.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §745.8483 adds to the portions of a child care record that are considered confidential (1) any information that would interfere with an HHSC PI investigation of adult abuse, neglect, or exploitation; and (2) information relating to a person who is an applicant for a permit, a permit holder, or former permit holder as described in proposed new §745.8497.

Proposed new §745.8497 includes requirements (1) listing certain information as confidential regarding a person who is an applicant for a permit, a permit holder, or a former permit holder; and (2) listing exceptions to the confidentiality requirements.

FISCAL NOTE

There will be an estimated cost of $120,055 in fiscal year (FY) 2024 for information technology (IT) changes needed to update CCR's internal database and provider portal. However, these costs will be absorbed using existing resources.

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

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

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

(5) the proposed rules will create a new regulation;

(6) the proposed rules will not expand existing regulations;

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

(8) the proposed rules 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 rules do not impose any additional costs on small businesses, micro-businesses, or rural communities required to comply with the rules.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to this rule because the rules (1) do not impose a cost on regulated persons, and (2) are necessary to comply with state law.

PUBLIC BENEFIT AND COSTS

Rachel Ashworth-Mazerolle, Associate Commissioner for Child Care Regulation, has determined that for each year of the first five years the rules are in effect the public benefit will be increased compliance with statutory requirements.

Trey Wood has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because the rules do not task the persons with additional responsibilities.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Ryan Malsbary by email at Ryan.Malsbary@hhs.texas.gov.

Written comments on the proposal may be submitted to Ryan Malsbary, Rules Writer, Child Care Regulation, Health and Human Services Commission, E-550, P.O. Box 149030, Austin, Texas 78714-9030; or by email to CCRRules@hhs.texas.gov.

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) 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 24R014" in the subject line.

STATUTORY AUTHORITY

The amendment and new section are authorized by Texas Government Code §531.0055, which requires the Executive Commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, and Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Texas Government Code Chapter 531.

The proposal affects Texas Government Code §552.11765, Texas Health and Safety Code §253.001(4), and Texas Human Resources Code §48.251(a)(3) and §48.252(b) and (c).

§745.8483.What portions of a child care record are confidential?

We can provide most portions of a child care record to the public. However, the following lists the portions of a child care record that are confidential and will not be released to the public in any manner, unless noted as an exception in §745.8487 of this division (relating to Are there any exceptions that allow the portions of a child care record that are confidential to be released to the public or certain persons?):

(1) Information concerning an open investigation, including:

(A) Interviews with operation staff, foster parents or other caregivers, children, or any other person; and

(B) Internal discussions by or among Licensing staff;

(2) The name of the reporter and any information that identifies the reporter;

(3) Information received or obtained from another agency, entity, or person, if that information is confidential under law, including information related to background checks as explained further in Subchapter F of this title (relating to Background Checks);

(4) Any private information that is confidential under state or federal law, including:

(A) A person's social security number;

(B) A foster home screening, adoptive home screening, and post-placement adoptive report; and

(5) Any information that would interfere with:

(A) An [an] ongoing law enforcement investigation or prosecution; [~~or with~~]

(B) A [a] Texas Department of Family and Protective Services child abuse, neglect, or exploitation investigation; or

(C) A Texas Health and Human Services Commission Long-Term Care Regulation adult abuse, neglect, or exploitation investigation;

(6) The location of a family violence shelter or a victims of trafficking shelter center as defined by Texas Government Code §552.138;

(7) Information pertaining to an individual who received services at a family violence shelter or a victims of trafficking shelter center;

(8) Any photograph, audio or visual recording, or documentation of a child;

(9) Information that is confidential as described in §745.8497 of this division (relating to What confidentiality requirements apply to a person who is an applicant for a permit, a permit holder, or a former permit holder?); and

(10) [~~(9)~~] Any other information that is confidential under state or federal law.

§745.8497.What confidentiality requirements apply to a person who is an applicant for a permit, a permit holder, or a former permit holder?

(a) Except as provided by subsection (b) of this section, the following information regarding a person who is an applicant for a permit, a permit holder, or a former permit holder is confidential and may not be released to the public:

(1) Home address;

(2) Home telephone number;

(3) Email address;

(4) Social security number;

(5) Date of birth;

(6) Driver's license number;

(7) State identification number;

(8) Passport number;

(9) Emergency contact information; and

(10) Payment information.

(b) The following information is not confidential or exempt from public disclosure under this section:

(1) A home address that is also the operation's physical address;

(2) A home telephone number that is also the operation's telephone number; and

(3) An email address that is also the operation's email address.

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 April 19, 2024.

TRD-202401672

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: June 2, 2024

For further information, please call: (512) 438-3269

CHAPTER 904. CONTINUITY OF SERVICES--STATE FACILITIES

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §904.5, concerning Definitions; §904.25, concerning Criteria for Commitment and Regular Voluntary Admission of an Adult to a State MR Facility Under the PMRA; §904.29, concerning Criteria for Commitment of a Minor to a State MR Facility Under the PMRA; §904.43, concerning MRA IDT Recommendation Concerning the Commitment of an Adult or a Minor or the Regular Voluntary Admission of an Adult to a State MR Facility Under the PMRA; and §904.45, concerning MRA Referral of an Applicant to a State MR Facility.

BACKGROUND AND PURPOSE

The proposal is necessary to comply with statute, which requires HHSC to create a pathway to civil commitment to a state supported living center (SSLC) without a recommendation for placement by an interdisciplinary team (IDT). Senate Bill 944, 88th Legislature, Regular Session, 2023 amended Texas Health and Safety Code Chapter 593 to establish this requirement. The proposed amendments establish guidelines and processes for such a commitment. Additional amendments to update language and agency information are also proposed.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §904.5, Definitions, updates language and agency information to use current terminology and includes new definitions for community-based services and intellectual disability.

The proposed amendment to §904.25, Criteria for Commitment and Regular Voluntary Admission of an Adult to a State MR Facility Under the PMRA, renames the section to "Criteria for Commitment, Commitment for Residential Services Without an Interdisciplinary Team Recommendation, and Regular Voluntary Admission of an Adult to a Residential Care Facility Under the PIDA;" updates language in the section; adds the requirements that must be met for an adult to be civilly committed to residential services without an IDT recommendation; and adds the right of a party to certain commitment proceedings to appeal the judgment to the appropriate court of appeals.

The proposed amendment to §904.29, Criteria for Commitment of a Minor to a State MR Facility Under the PMRA, renames the section to "Criteria for Commitment and Commitment for Residential Services Without an Interdisciplinary Team Recommendation of a Minor to a Residential Care Facility Under the PIDA;" updates language in the section; adds the requirements that must be met for a minor to be civilly committed to residential services with and without an interdisciplinary team (IDT) recommendation; and adds the right of a party to certain commitment proceedings to appeal the judgment to the appropriate court of appeals.

The proposed amendment to §904.43, MRA IDT Recommendation Concerning the Commitment of an Adult or a Minor or the Regular Voluntary Admission of an Adult to a State MR Facility Under the PMRA, renames the section to "LIDDA IDT Recommendation Concerning the Commitment of an Adult or a Minor or the Regular Voluntary Admission of an Adult to a Residential Care Facility Under the PIDA" and updates language and references to Texas Administrative Code.

The proposed amendment to §904.45, MRA Referral of an Applicant to a State MR Facility, renames the section to "LIDDA Referral of an Applicant to a Residential Care Facility" and updates language and agency information.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, there is expected to be an additional cost and loss of revenue to state government as a result of enforcing and administering the rules as proposed. Enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of local government.

The effect on state government for each year of the first five years the proposed rules are in effect cannot be determined since the number of additional admissions cannot be determined. Increased admissions may require additional costs for staffing and potentially repairs and renovations for physical space. Court commitments that do not meet SSLC admissions criteria could result in decreased general revenue due to a lack of Medicaid reimbursement.

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

(2) implementation of the proposed rules is expected to create new HHSC employee positions;

(3) implementation of the proposed rules is expected to require an increase in future legislative appropriations;

(4) the proposed rules are expected to increase fees paid to HHSC;

(5) the proposed rules will not create a new regulation;

(6) the proposed rules will expand existing regulations; and

(7) the proposed rules are expected to increase the number of individuals subject to the rules.

HHSC has insufficient information to determine the proposed rules' effect on the state's economy.

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

Trey Woods has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities.

The rules do not apply to small or micro-businesses, or rural communities.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas; the rules do not impose a cost on regulated persons; and to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT AND COSTS

Laura Cazabon-Braly, Associate Commissioner of the SSLCs, has determined that for each year of the first five years the rules are in effect, the public benefit will be that a parent or guardian will have the option to petition the court for a civil commitment of an individual to an SSLC for residential services without the requirement that an interdisciplinary team provide a report recommending such a placement.

Trey Wood has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because it is the parent's or guardian's choice to seek this path for admission to an SSLC and not a requirement. Court costs incurred by the petitioner are not required by the rules.

TAKINGS IMPACT ASSESSMENT

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, 701 W. 51st St, Austin, Texas 78751; 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) emailed before midnight on the last day of the comment period. If 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 Rules 23R058" in the subject line.

SUBCHAPTER A. GENERAL PROVISIONS

26 TAC §904.5

STATUTORY AUTHORITY

The amendment is 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 Texas Health and Safety Code §591.004, provides that the Executive Commissioner of HHSC shall adopt rules to ensure the implementation of the Persons with an Intellectual Disability Act, Subtitle D, Title 7, Texas Health and Safety Code.

The amendment affects Texas Government Code §531.0055 and Texas Health and Safety Code §§593.0511 and 593.052.

§904.5.Definitions.

The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise. [:]

(1) Actively involved--Significant and ongoing involvement with the individual [~~who does not have the ability to provide legally adequate consent and who does not have an LAR which the individual's planning team deems to be supportive~~] based on the following:

(A) observed interactions of the person with the individual;

(B) advocacy for the individual;

(D) availability to the individual for assistance or support when needed.

(2) Applicant--An individual seeking residential services in a residential care [~~state MR~~] facility.

(3) CARE--A Texas Health and Human Services Commission (HHSC) data system [~~DADS' Client Assignment and Registration System, a database~~] with demographic and other data about an individual who is receiving services and supports or on whose behalf services and supports have been requested.

(4) CLOIP--Community living options information process. The activities described in §904.99(a)(2) [~~§2.274(a)(2)~~ ] of this chapter [~~subchapter~~] (relating to Consideration of Living Options for Individuals Residing in State MR Facilities) performed by a contract local intellectual and developmental disability authority (LIDDA) [~~MRA~~] to provide information and education about community living options to an individual who is 22 years of age or older residing in a residential care [~~state MR~~] facility and [or] to the individual's legally authorized representative (LAR) [~~LAR~~], if the individual has an LAR.

(5) Commissioner--The executive commissioner of HHSC [~~DADS~~].

(6) Community-based Services--Services which include:

(A) a Medicaid waiver program in Title XIX, §1915(c) of the Social Security Act, including:

(i) the Community Living Assistance and Support Services Program;

(ii) the Deaf Blind with Multiple Disabilities Program;

(iii) the Home and Community-based Services Program; or

(iv) the Texas Home Living Program;

(B) an intermediate care facility licensed under the Texas Health and Safety Code (THSC) Chapter 252;

(D) services from the local mental health authority or local behavioral health authority;

(E) a home and community support services agency licensed under THSC Chapter 142;

(F) local Aging and Disability Resource Center; or

(G) services from the local intellectual and developmental disability authority.

(7) [~~(6)~~] Consensus--A negotiated agreement that all parties can and will support in implementation. The negotiation process involves the open discussion of ideas with all parties encouraged to express opinions.

(8) Contract LIDDA--A LIDDA that has a contract with HHSC to conduct the CLOIP.

(9) [~~(7)~~] Contract mental retardation authority (MRA) [~~MRA~~]-- A contract LIDDA [~~An MRA that has a contract with DADS to conduct the CLOIP~~].

(10) [~~(8)~~] CRCG [~~(Community Resource Coordination Group)~~]--Community Resource Coordination Group. A local interagency group composed of public and private agencies that develops service plans for individuals whose needs can be met only through interagency coordination and cooperation. 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 on the Texas Health and Human Services Commission website at https://crcg.hhs.texas.gov [~~www.hhsc.state.tx.us/crcg/crcg.htm~~].

(11) [~~(9)~~] DADS--The Department of Aging and Disability Services. As a result of the reorganization of health and human services delivery in Texas, DADS was abolished, and its functions transferred to HHSC.

(12) [~~(10)~~] Dangerous behavior--Physically [~~Behavior exhibited by an individual who is physically~~] aggressive, self-injurious, sexually aggressive, or seriously disruptive behaviors that require [~~and requires~~] a written behavioral intervention plan to prevent or reduce serious physical injury or psychological injury to the person engaging in these behaviors or others [~~to the individual or others~~].

(13) [~~(11)~~] Department--Department of Aging and Disability Services, predecessor agency whose functions have been dissolved and transferred to HHSC.

(14) Designated LIDDA--The LIDDA assigned to an individual in the HHSC data system.

(15) [~~(12)~~] Designated MRA--A designated LIDDA [~~The MRA assigned to an individual in CARE~~].

(16) [~~(13)~~] Discharge--The release by HHSC [~~DADS~~] of an individual voluntarily admitted or committed by court order for residential care [~~mental retardation~~] services from the custody and care of a residential care [~~state MR~~] facility and termination of the individual's assignment to the residential care [~~state MR~~] facility in the HHSC data system [~~CARE~~].

(17) [~~(14)~~] Emergency admission and discharge [~~admission/discharge~~] agreement--A written agreement between the residential care [~~state MR~~] facility, the individual or LAR, and the designated LIDDA [MRA, sample copies of which are available from the Department of Aging and Disability Services, Provider Services Division, State Mental Retardation Facilities Section, P.O. Box 149030, Mail Code W-511, Austin, Texas 78714-9030,] that describes:

(A) the purpose of the emergency admission, including the circumstances that precipitated the need for the admission and the expected outcomes from the admission;

(B) the responsibilities of each party regarding the care, treatment, and discharge of the individual, including how the terms of the agreement are [~~will be~~] monitored;

(C) the length of time of the emergency admission, which is that amount of time necessary to accomplish the purpose of the admission; and

(D) the anticipated date of discharge.

(18) [~~(15)~~] Facility of record--The residential care facility that serves the local service area [~~area(s)~~] assigned to the individual's designated-LIDDA [~~designated MRA~~].

(19) [~~(16)~~] Family-based alternative--A family setting in which the family provider or providers are specially trained to provide support and in-home care for children with disabilities or children who are medically fragile.

(20) [~~(17)~~] Head of the facility--The [~~superintendent or~~] director of a residential care [~~state MR~~] facility.

(21) HHSC--The Texas Health and Human Services Commission.

(22) [~~(18)~~] ICAP [~~(Inventory for Client and Agency Planning)~~]--Inventory for Client and Agency Planning. A validated, standardized assessment that measures the level of supervision an individual requires and, thus, the amount and intensity of services and supports the individual needs.

(23) [~~(19)~~] ICAP service level--A designation that identifies the level of services needed by an individual as determined by the ICAP.

(24) [~~(20)~~] IDT [~~(Interdisciplinary team)~~]--Interdisciplinary team. A team comprised of intellectual disability professionals, paraprofessionals, [~~Mental retardation professionals and paraprofessionals~~] and other concerned persons, as appropriate, who assess an individual's treatment, training, and habilitation needs and make recommendations for services, including recommendations of whether the individual is best served in a residential care facility or in a community setting.

(A) The team must include [~~Team membership always includes~~]:

(i) the individual;

(ii) the individual's LAR, if any; and

(iii) persons specified by a LIDDA [~~an MRA~~]or a residential care [~~state MR~~] facility, as appropriate, who are professionally qualified or[~~and/or~~ ] certified or licensed with special training and experience in the diagnosis, management, needs, and treatment of individuals with an intellectual disability [~~mental retardation~~].

(B) Other participants in IDT meetings may include:

(i) other concerned persons whose inclusion is requested by the individual or the LAR;

(ii) at the discretion of the LIDDA [~~MRA~~] or residential care [~~state MR~~] facility, persons who are directly involved in the delivery of services to individuals with an intellectual disability [~~mental retardation services to the individual~~]; [~~and~~]

(iii) if the individual is [~~school~~] eligible for public school services, representatives of the appropriate school district;

(iv) actively-involved family members or friends of the individual who has neither the ability to provide legally adequate consent nor an LAR; and

(v) when an individual is a client of the Protection and Advocacy System and the individual does not have the ability to provide legally adequate consent, a representative of the Protection and Advocacy System.

(25) [~~(21)~~] Individual--A person who has or is believed to have an intellectual disability [~~mental retardation~~].

(26) Intellectual disability--Consistent with THSC §591.003, significantly subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originated during the developmental period.

(27) [~~(22)~~] Interstate transfer--The admission of an individual to a residential care [~~state MR~~] facility directly from a similar facility in another state.

(28) [~~(23)~~] IQ [~~(intelligence quotient)~~]--Intelligence quotient. A score reflecting the level of an individual's intelligence as determined by the administration of a standardized intelligence test.

(29) [~~(24)~~] LAR [~~(legally authorized representative)~~]--Legally authorized representative. A person authorized by law to act on behalf of an individual regarding [~~with regard to~~] a matter described in this chapter [~~subchapter~~], and may include a parent, guardian, or managing conservator of a minor, or the guardian of an adult.

(30) [~~(25)~~] Legally adequate consent--Consent given by a person when each of the following conditions have [~~has~~] been met. [:]

(A) Legal [~~legal~~] status. [:] The individual giving the consent:

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

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

(B) Comprehension [~~comprehension~~] of information.[:] The individual giving the consent has been informed of and comprehends the nature, purpose, consequences, risks, and benefits of and alternatives to the procedure[,] and the fact that withholding or withdrawal of consent shall not prejudice the future provision of care and services to the individual with an intellectual disability. [~~mental retardation; and~~]

(C) Voluntariness. [~~voluntariness:~~] The consent has been given voluntarily and free from coercion and undue influence.

(31) [~~(26)~~] Less restrictive setting--A setting which allows the greatest opportunity for the individual to be integrated into the community.

(32) LIDDA--Local intellectual and developmental disability authority. An entity to which HHSC's authority and responsibility described in THSC §531.002(12) has been delegated.

(33) [~~(27)~~] Local service area--A geographic area composed of one or more Texas counties delimiting the population which may receive services from a LIDDA [~~local MRA~~].

(34) [~~(28)~~] Mental retardation--Terminology previously used to describe intellectual disability [~~Consistent with THSC, §591.003, significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period~~].

(35) [~~(29)~~] Minor--An individual under the age of 18.

(36) [~~(30)~~] MRA [~~(mental retardation authority)~~]--Mental retardation authority. A LIDDA [~~An entity to which the Health and Human Services Commission's authority and responsibility described in THSC, §531.002(11) has been delegated~~].

(37) [~~(31)~~] Natural support network--Those persons, including family members, church members, neighbors, and friends, who assist and sustain an individual with supports that occur naturally within the individual's environment and that are not reimbursed or purposely developed by a person or system.

(38) [~~(32)~~] Ombudsman--An employee of HHSC who is responsible for assisting an individual or a person acting on behalf of an individual with an intellectual or developmental disability (IDD) or a group of individuals with an IDD with a complaint or grievance regarding the infringement of the rights of an individual with an IDD or the delivery of intellectual disability services submitted under THSC §592.039. The ombudsman must explain and provide information on HHSC and LIDDA services, facilities, and programs, and the rules, procedures, and guidelines applicable to the individual denied services, and refer the individual to the appropriate entity to assist the individual in gaining access to an appropriate program or in placing the individual on an appropriate interest list. [Consistent with THSC, §533.039, an employee of DADS who is responsible for assisting an individual or LAR if the individual is denied a service by DADS, a DADS program or facility, or an MRA. The ombudsman must explain and provide information on DADS and MRA services, facilities, and programs, and the rules, procedures, and guidelines applicable to the individual denied services, and assist the individual in gaining access to an appropriate program or in placing the individual on an appropriate waiting list.]

(39) [~~(33)~~] 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.

(40) [~~(34)~~] Planning team--A team convened [~~group organized~~] by the LIDDA [~~MRA~~] and composed of:

(A) the individual;

(B) the individual's LAR [~~legally authorized representative (LAR)~~], if any;

(C) actively-involved family members or friends of the individual who has neither the ability to provide legally adequate consent nor an LAR;

(D) other concerned persons whose inclusion is requested by the individual with the ability to provide legally adequate consent or the LAR;

(E) a representative from the designated LIDDA [~~MRA~~]; [~~and~~]

(F) a representative from the individual's provider; and

(G) when an individual is a client of the Protection and Advocacy System and the individual does not have the ability to provide legally adequate consent, a representative of the Protection and Advocacy System.

(41) PIDA--Persons with an Intellectual Disability Act, Texas Health and Safety Code, Title 7, Subtitle D.

(42) [~~(35)~~] PMRA--PIDA [~~Persons with Mental Retardation Act, Texas Health and Safety Code, Title 7, Subtitle D~~].

(43) [~~(36)~~] Provider--A public or private entity that delivers [~~community-based residential~~] services and supports for individuals as an alternative to a residential care facility, including [~~, but not limited to,~~] an intermediate care facility for individuals with an intellectual disability or related conditions (ICF/IID), [~~mental retardation (ICF/MR) or~~] a nursing facility, or an [~~. The term also includes a public or private~~] entity that provides waiver services.

(44) [~~(37)~~] Related services--Services for school eligible individuals, as defined in Title 34 Code of Federal Regulations §300.34 [~~described in 19 TAC §89.1060 (relating to Definitions of Certain Related Services)~~].

(45) Residential care facility--A state supported living center or the ICF/IID component of the Rio Grande Center.

(46) [~~(38)~~] Respite admission and discharge [~~admission/discharge~~] agreement--A written agreement between the residential care [~~state MR~~] facility, the individual or LAR, and LIDDA [MRA, sample copies of which are available from the Department of Aging and Disability Services, Provider Services Division, State Mental Retardation Facilities Section, P.O. Box 149030, Mail Code W-511, Austin, Texas 78714-9030], that describes:

(A) the purpose of the respite admission, including the circumstances that precipitated the need for the admission and the expected outcomes from the admission;

(B) the length of time the individual will receive respite services from the residential care [~~state MR~~] facility; and

(47) [~~(39)~~] School eligible--A term describing those individuals between the ages of three and 22 who are eligible for public education services.

(48) [~~(40)~~] Service delivery system--All facility and community-based services and supports operated or contracted [~~for~~] by HHSC [~~DADS~~].

(49) [~~(41)~~] Services and supports--Programs and assistance for persons with an intellectual disability [~~mental retardation~~] that may include a determination of intellectual disability [~~mental retardation~~], interdisciplinary team recommendations, education, special training, supervision, care, treatment, rehabilitation, residential care, and counseling, but does not include those services or programs that have been explicitly delegated by law to other state agencies.

(50) [~~(42)~~] Significantly subaverage general intellectual functioning--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 consistent with THSC §591.003 [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].

(51) [~~(43)~~] State MH facility [~~(state mental health facility)~~]--State mental health facility. A state hospital.

(52) [~~(44)~~] State MR facility [~~(state mental retardation facility)~~]--State mental retardation facility. A residential care facility [~~state school or a state center with a mental retardation residential component~~].

(53) [~~(45)~~] State MR facility living options instrument--A written document used to guide the discussion of living options during a planning meeting that results in a recommendation by the IDT of whether the individual should remain in the current living arrangement at the residential care [~~state MR~~] facility or move to an alternative living arrangement.

(54) TGC--Texas Government Code.

(55) [~~(46)~~] THSC--Texas Health and Safety Code.

(56) [~~(47)~~] Waiver services--Home and community-based services provided through a Medicaid waiver program approved by Centers for Medicare and Medicaid Services (CMS), as described in §1915(c) of the Social Security Act.

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 April 19, 2024.

TRD-202401667

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: June 2, 2024

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

SUBCHAPTER B. ADMISSION AND COMMITMENT

26 TAC §§904.25, 904.29, 904.43, 904.45

STATUTORY AUTHORITY

The amendments 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 Texas Health and Safety Code §591.004, provides that the Executive Commissioner of HHSC shall adopt rules to ensure the implementation of the Persons with an Intellectual Disability Act, Subtitle D, Title 7, Texas Health and Safety Code.

The amendments affect Texas Government Code §531.0055 and Texas Health and Safety Code §§593.0511 and 593.052.

§904.25.Criteria for Commitment, Commitment for Residential Services Without an Interdisciplinary Team Recommendation, and Regular Voluntary Admission of an Adult to a Residential Care [~~State MR~~] Facility Under the PIDA [~~PMRA~~].

(a) In accordance with THSC[,] §§593.003, 593.052, and 593.041, except as provided by subsection (b) of this section, an adult may be committed to a residential care [~~state MR~~] facility for residential services only if:

(1) the adult is determined to have an intellectual disability [~~mental retardation~~] in accordance with §304.401 [~~§415.155~~] of this title (relating to Conducting a Determination of Intellectual Disability [~~Determination of Mental Retardation (DMR)~~]);

(2) the adult, because of an intellectual disability [~~mental retardation~~]:

(A) represents a substantial risk of physical impairment or injury to self or others; or

(B) is unable to provide for and is not providing for the adult's most basic personal physical needs;

(3) the adult cannot be adequately and appropriately habilitated in an available, less restrictive setting , as demonstrated by documentation that alternative settings have been identified, evaluated, and determined to be unavailable or unable to meet the adult's identified needs;

(4) the residential care [~~state MR~~] facility provides habilitative services, care, training, and treatment appropriate to the adult's needs; and

(5) a report by an IDT recommending the placement has been completed in accordance with §904.43 [~~§412.264~~ ] of this subchapter [~~title~~] (relating to LIDDA IDT Recommendation Concerning the Commitment of an Adult or a Minor or the Regular Voluntary Admission of an Adult to a Residential Care [~~State MR~~] Facility Under the PIDA [~~PMRA~~]) during the six months preceding the date of the commitment hearing; and[.]

(6) the court determines beyond a reasonable doubt that the adult meets the requirements of subsection (d) of this section and paragraphs (1), (2)(A) or (2)(B), (3), and (4) of this subsection.

(b) In accordance with THSC §§593.003, 593.041, 593.0511, and 593.052, an adult may be committed to a residential care facility for residential services without an IDT recommendation only if:

(1) the adult is determined to have an intellectual disability in accordance with §304.401 of this title;

(2) the guardian of the adult petitions the court to issue a commitment order and shows, because of an intellectual disability, the adult:

(A) represents a substantial risk of physical impairment or injury to self or others; or

(B) is unable to provide for and is not providing for the adult's most basic personal physical needs;

(3) the adult cannot be adequately and appropriately habilitated in an available, less restrictive setting, as demonstrated by documentation that alternative settings have been identified, evaluated, and determined to be unavailable or unable to meet the adult's identified needs;

(4) the residential care facility provides habilitative services, care, training, and treatment appropriate for the adult's needs; and

(5) the court determines beyond a reasonable doubt that the adult meets the requirements of subsection (d) of this section and paragraphs (1), (2)(A) or (2)(B), (3), and (4) of this subsection.

(c) [~~(b)~~] An adult with the capacity to give legally adequate consent may be admitted to a residential care [~~state MR~~] facility under a regular voluntary admission for residential services only if:

(1) in accordance with THSC[,] §§593.003, 593.013, and 593.026:

(A) the adult has been determined to have an intellectual disability [~~mental retardation~~] in accordance with §304.401 [~~§415.155~~] of this title [~~(relating to Determination of Mental Retardation (DMR)~~];

(B) a report by a LIDDA's [~~an MRA's~~] IDT recommending the placement has been completed in accordance with §904.43 [~~412.264~~] of this subchapter [~~title (relating to IDT Recommendation Concerning the Commitment of an Adult or a Minor or the Regular Voluntary Admission of an Adult to a State MR Facility Under the PMRA)~~] during the six months preceding the request for admission;

(D) the facility director [~~superintendent~~] determines that the residential care [~~state MR~~] facility provides services that meet the needs of the adult; and

(2) the IDT report referenced in paragraph (1)(B) of this subsection includes the following findings:

(A) because of an intellectual disability [~~mental retardation~~], the adult:

(i) represents a substantial risk of physical impairment or injury to self or others; or

(ii) is unable to provide for and is not providing for the adult's most basic personal physical needs;

(B) the adult cannot be adequately and appropriately habilitated in an available, less restrictive setting, as demonstrated by documentation that alternative settings have been identified, evaluated, and determined to be unavailable or unable to meet the adult's identified needs; and

(C) the residential care [~~state MR~~] facility provides habilitative services, care, training, and treatment appropriate for [to] the adult's needs.

(d) [~~(c)~~] An adult represents a substantial risk of physical impairment or injury to self or others or is unable to provide for and is not providing for the adult's most basic personal physical needs, as referenced in subsections [~~subsection~~] (a)(2),[~~and~~](b)(2)(A), and (c)(2)(A) of this section, if:

(1) the adult's IQ is four or more standard deviations below the mean, (i.e., in the severe or profound range of intellectual disability [~~mental retardation~~]); or

(2) the adult's ICAP service level equals:

(A) 1, 2, 3, or 4; or

(B) 5 or 6 and the adult:

(i) has extraordinary medical needs that would require direct nursing treatment for at least 180 minutes per week if the adult's caregiver were not providing such treatment; or

(ii) exhibits incidents of dangerous behavior that would require intensive staff intervention and resources to prevent serious physical injury to the adult or others if the adult's caregiver were not managing such incidents.[~~; or~~]

~~[(3) the adult meets other objective measures as determined by the department.]~~

(e) In accordance with THSC §593.056, a party to a commitment proceeding under subsections (a) or (b) of this section has the right to appeal the judgment to the appropriate court of appeals.

(1) The Texas Rules of Civil Procedure apply to an appeal under this section.

(2) An appeal under this section shall be given a preference setting.

(3) The county court may grant a stay of commitment pending the outcome of the appeal.

§904.29.Criteria for Commitment and Commitment for Residential Services Without an Interdisciplinary Team Recommendation of a Minor to a Residential Care [~~State MR~~] Facility Under the PIDA [~~PMRA~~].

(a) In accordance with Texas Government Code §531.1521 and §531.153, before a minor may be committed to a residential care facility for residential services, the CRCG or the LIDDA, if the minor resides in a county that is not served by a CRCG, must fully inform the parent or guardian of all community-based services and any other service and support options for which the minor may be eligible and complete the permanency planning process, as described in §904.171 of this chapter (relating to MRA and State MR Facility Responsibilities). [~~THSC, §§593.003, 593.052, and 593.041, a minor may be committed to a state MR facility for residential services only if:~~]

~~[(1) the minor is determined to have mental retardation in accordance with §415.155 of this title (relating to Determination of Mental Retardation (DMR));]~~

~~[(2) the minor, because of mental retardation:]~~

~~[(A) represents a substantial risk of physical impairment or injury to self or others; or]~~

~~[(B) is unable to provide for and is not providing for the minor's most basic personal physical needs;]~~

~~[(3) the minor cannot be adequately and appropriately habilitated in an available, less restrictive setting;]~~

~~[(4) the state MR facility provides habilitative services, care, training, and treatment appropriate to the minor's needs; and]~~

[(5) a report by an MRA's IDT recommending the placement has been completed in accordance with §412.264 of this title (relating to IDT Recommendation Concerning the Commitment of an Adult or a Minor or the Regular Voluntary Admission of an Adult to a State MR Facility Under the PMRA) during the six months preceding the date of the commitment hearing.]

(b) A minor represents a substantial risk of physical impairment or injury to self or others or is unable to provide for and is not providing for the minor's most basic personal physical needs, as referenced in subsections (d)(2) and (e)(2) [~~subsection (a)(2)~~] of this section, if:

(1) the minor's IQ is four or more standard deviations below the mean, (i.e., in the severe or profound range of intellectual disability [~~mental retardation~~]); or

(2) the minor's ICAP service level equals:

(A) 1, 2, 3, or 4; or

(B) 5 or 6 and the minor:

(i) has extraordinary medical needs that would require direct nursing treatment for at least 180 minutes per week if the minor's caregiver were not providing such treatment; or

(ii) exhibits incidents of dangerous behavior that would require intensive staff intervention and resources to prevent serious physical injury to the minor or others if the minor's caregiver were not managing such incidents.[~~; or~~]

~~[(3) the minor meets other objective measures as determined by the department.]~~

(c) A determination that a minor cannot be adequately and appropriately habilitated in an available, less restrictive setting, as referenced in subsections (d)(3) or (e)(3) [~~subsection (a)(3)~~] of this section, may not be made unless:

(1) a CRCG, or the LIDDA, if the minor resides in a county that is not served by CRCG, held a staffing concerning the minor and provided information to the minor's family about available community supports that could serve as an alternative to admission of the minor to a residential care [~~state MR~~] facility;

(2) available community supports that could serve as an alternative to admission of the minor to a residential care [~~state MR~~] facility were attempted; and

(3) if there are indications that the minor may have a serious emotional disturbance, the minor was assessed by a children's mental health professional to determine if a serious emotional disturbance exists and services to address the serious emotional disturbance were attempted.

(d) In accordance with THSC §§593.003, 593.052, and 593.041, except as provided by subsection (e) of this section, a minor may be committed to a residential care facility for residential services only if:

(1) the minor is determined to have an intellectual disability in accordance with §304.401 of this title (relating to Conducting a Determination of Intellectual Disability);

(2) the minor, because of an intellectual disability:

(A) represents a substantial risk of physical impairment or injury to self or others; or

(B) is unable to provide for and is not providing for the minor's most basic personal physical needs;

(3) the minor cannot be adequately and appropriately habilitated in an available, less restrictive setting;

(4) the residential care facility provides habilitative services, care, training, and treatment appropriate to the minor's needs;

(5) a report by a LIDDA's IDT recommending the placement has been completed in accordance with §904.43 of this subchapter (relating to LIDDA IDT Recommendation Concerning the Commitment of an Adult or a Minor or the Regular Voluntary Admission of an Adult to a Residential Care Facility Under the PIDA) during the six months preceding the date of the commitment hearing; and

(6) the court determines beyond a reasonable doubt that the minor meets the requirements of subsection (c) of this section and paragraphs (1), (2)(A) or (2)(B), (3), and (4) of this subsection.

(e) In accordance with THSC §§593.003, 593.041, 593.0511 and 593.052, a minor may be committed to a residential care facility for residential services without an IDT recommendation only if:

(1) the minor is determined to have an intellectual disability in accordance with §304.401 of this title;

(2) the parent of a minor petitions the court to issue a commitment order and shows, because of an intellectual disability, the minor:

(A) represents a substantial risk of physical impairment or injury to self or others; or

(B) is unable to provide for and is not providing for the minor's most basic personal physical needs;

(3) the minor cannot be adequately and appropriately habilitated in an available, less restrictive setting;

(4) the residential care facility provides habilitative services, care, training, and treatment appropriate to the minor's needs; and

(5) the court determines beyond a reasonable doubt that the minor meets the requirements of subsection (c) of this section and paragraphs (1), (2)(A) or (2)(B), (3), and (4) of this subsection.

(f) In accordance with THSC §593.056, a party to a commitment proceeding under subsections (d) or (e) of this section has the right to appeal the judgment to the appropriate court of appeals.

(1) The Texas Rules of Civil Procedure apply to an appeal under this section.

(2) An appeal under this section shall be given a preference setting.

(3) The county court may grant a stay of commitment pending the outcome of the appeal.

§904.43.LIDDA [~~MRA~~] IDT Recommendation Concerning the Commitment of an Adult or a Minor or the Regular Voluntary Admission of an Adult to a Residential Care [~~State MR~~] Facility Under the PIDA [~~PMRA~~].

The IDT at a LIDDA [~~an MRA~~] must do the following in making a report of its findings and recommendations, as described in §904.25(a)(5) [~~§2.255(a)(5)~~] and (c)(1)(B) [~~(b)(1)(B))~~] of this subchapter (relating to Criteria for Commitment, Commitment for Residential Services Without an Interdisciplinary Team Recommendation, and Regular Voluntary Admission of an Adult to a Residential Care [~~State MR~~] Facility Under the PIDA [~~PMRA~~]), §904.27(b)(3)(E) [~~§2.256(b)(3)(E)~~], (c)(3)(E), (e)(3)(E), and (f)(3)(E) of this subchapter (relating to Criteria for Commitment of an Adult under the Texas Code of Criminal Procedure), and §904.29(d)(5) [~~§2.257(a)(5)~~] of this subchapter (relating to Criteria for Commitment and Commitment for Residential Services Without an Interdisciplinary Team Recommendation of a Minor to a Residential Care [~~State MR~~] Facility Under the PIDA [~~PMRA~~]).

(1) In [in] accordance with THSC[,] §593.013, the IDT must:

(A) interview the individual and [or] the individual's legally authorized representative (LAR) [~~LAR~~];

(B) review the individual's:

(i) social and medical history;

(ii) medical assessment, which must include an audiological, neurological, and vision screening;

(iii) psychological and social assessment, including the ICAP; and

(iv) determination of adaptive behavior level;

(D) obtain any additional assessments [~~assessment(s)~~ ] necessary to plan services;

(E) identify the individual's or LAR's habilitation and service preferences and the individual's needs;

(F) recommend services to address the individual's needs that consider the individual's or LAR's interests, choices, and goals and, for an individual under 22 years of age, the individual's permanency planning goal;

(G) give [~~encourage~~] the individual and the individual's LAR an opportunity to participate in IDT meetings;

(H) if desired, use a previous assessment, social history, or other relevant record from a school district, public or private agency, or appropriate professional if the IDT determines that the assessment, social history or record is valid;

(I) prepare a written report of its findings and recommendations that is signed by each IDT member and send a copy of the report within 10 working days to the individual or LAR, as appropriate; and

(J) if the individual is being considered for commitment to the residential care [~~state MR~~] facility, submit the IDT report promptly to the court, as ordered, and to the individual or LAR, as appropriate; and

(2) determine whether:

(A) the individual, because of an intellectual disability [~~mental retardation~~]:

(i) represents a substantial risk of physical impairment or injury to self or others; or

(ii) is unable to provide for and is not providing for the individual's most basic personal physical needs;

(B) the individual cannot be adequately and appropriately habilitated in an available, less restrictive setting, as demonstrated by documentation that alternative settings have been identified, evaluated, and determined to be unavailable or unable to meet the individual's identified needs; and

(C) the residential care [~~state MR~~] facility provides habilitative services, care, training and treatment appropriate to the individual's needs.

§904.45.LIDDA [~~MRA~~] Referral of an Applicant to a Residential Care [~~State MR~~] Facility.

(a) If an individual or legally authorized representative (LAR) [~~LAR~~] requests residential services in a residential care [~~state MR~~] facility, the designated LIDDA [~~MRA~~] must provide an oral and written explanation of the residential services and supports for which the individual may be eligible, as described in Texas Administrative Code (TAC) Title 40 §2.307(b)(2) [~~§5.159(c) of this title~~] (relating to Access, Intake, and Enrollment Related Responsibilities [~~Assessment of Individual's Need for Services and Supports~~]).

(b) If the LIDDA's [~~MRA's~~] IDT determines that an applicant meets the criteria for residential services in a residential care facility or if a court orders an individual committed to residential care facility, as described in §904.25 [~~§2.255~~] of this subchapter (relating to Criteria for Commitment, Commitment for Residential Services Without an Interdisciplinary Team Recommendation, and Regular Voluntary Admission of an Adult to a Residential Care [~~State MR~~] Facility Under the PIDA [~~PMRA~~]) or, as described in §904.29 [~~§2.257~~] of this subchapter (relating to Criteria for Commitment and Commitment for Residential Services Without an Interdisciplinary Team Recommendation of a Minor to a Residential Care [~~State MR~~] Facility Under the PIDA [~~PMRA~~]), the LIDDA [~~MRA will~~]:

(1) notifies [~~notify~~] the applicant or LAR in writing, if applicable;

(2) contacts [~~contact~~] the residential care [~~state MR~~] facility serving the area in which the applicant lives or, if the applicant is requesting an interstate transfer, the area in which the individual's LAR or family lives or intends to live;

(3) contacts [~~contact~~] the interstate compact coordinator at HHSC [~~the Health and Human Services Commission~~], if the applicant is requesting an interstate transfer;

(4) compiles [~~compile~~] and submits [~~submit~~] all information required to complete an application packet, as described in subsection (i) [~~(g)~~] of this section; and

(5) opens [~~open~~] an assignment in the HHSC data system [~~CARE~~] indicating the applicant is waiting for services in a residential care [~~state MR~~] facility.

(c) If the LIDDA's [~~MRA's~~] IDT determines that the applicant does not meet the criteria for commitment or regular voluntary admission to a residential care [~~state MR~~] facility, as described in this subchapter, the LIDDA [~~MRA will~~]:

(1) notifies [~~notify~~] the applicant or LAR in writing of the determination and explains [~~explain~~ ] the procedure for the applicant or LAR to request a review of the IDT's determination by the LIDDA [~~MRA~~] in accordance with §301.155 of this title [~~§2.46 of this chapter~~] (relating to Notification and Appeals Process); or

(2) if the applicant requests [~~was requesting~~] an interstate transfer, notifies [~~notify~~ ] the interstate compact coordinator in writing of the determination.

(d) If a review by the LIDDA [~~MRA~~] of the IDT's determination results in the determination being upheld, the LIDDA informs [~~MRA will inform~~] the applicant or LAR in writing that they may [a] request [~~for~~] a review by HHSC's Intellectual or Developmental Disability (IDD) [~~DADS'~~] ombudsman by calling 1-800-252-8154 or they can visit the HHSC website for additional contact information for the IDD Ombudsman [may be made in writing to the Department of Aging and Disability Services, Consumer Rights and Services Division, P.O. Box 149030, Mail Code E-249, Austin, Texas 78714-9030, or by calling 1-800-458-9858].

(e) If the applicant or LAR requests a review, HHSC's IDD [~~DADS'~~] ombudsman reviews [~~will review~~] relevant documentation provided by the applicant and LAR, the IDT, and the LIDDA [~~MRA~~], and determines if [~~determine whether~~] the processes described in this subchapter were followed.

(1) The ombudsman issues [~~will issue~~] a written decision to the applicant, the applicant's LAR, and the LIDDA [~~MRA~~] within 14 calendar days of the request.

(2) If the ombudsman decides that the processes in this subchapter were followed, the ombudsman [~~will~~] provides information about other services the individual may be eligible for, including who to contact to place the applicant on interest lists [assist the applicant in gaining access to an appropriate program for which the applicant is eligible or in placing the applicant on the waiting list of an appropriate program for which the applicant is eligible].

(3) If the ombudsman decides that the processes in this subchapter were not followed, [~~then~~] the LIDDA [~~MRA~~] must take action to follow the processes in this subchapter.

(f) If the guardian of an adult petitions the court to issue a commitment order per THSC §§593.041, 593.0511, and 593.052, and the court issues the commitment order, the guardian must notify the LIDDA and provides a copy of the commitment order to the LIDDA.

(g) [~~(f)~~] If the LIDDA [~~MRA~~] determines that an applicant meets the criteria described in §904.37 [~~§2.261~~] of this subchapter (relating to Criteria for Emergency Admission of an Adult or a Minor to a State MR Facility Under the PMRA) or §904.39 [~~§2.262~~ ] of this subchapter (relating to Criteria for Admission of an Adult or a Minor to a State MR Facility for Respite Care Under the PMRA), the LIDDA [~~MRA will~~]:

(1) contacts [~~contact~~] the residential care [~~state MR~~] facility serving the area in which the applicant lives;

(2) compiles [~~compile~~] all of the information required to complete an application packet, as described in subsection (j) [~~(h)~~] or (k) [~~(i)~~] of this section, as appropriate; and

(3) requests [~~request~~] the applicant's enrollment in the Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions [~~ICF/MR~~] Program, as described in §261.244(e) [~~§9.244(e)~~ ] of this title (relating to Applicant Enrollment in the ICF/MR Program), if appropriate.

(h) The guardian must assist the LIDDA in compiling the information required to complete an application packet.

(i) [~~(g)~~] A complete application packet, as referenced in subsection (b)(4) of this section, must include:

(1) the original order of commitment, if applicable;

(2) a completed Form 8654, State Supported Living Center (SSLC) Admission Application, [~~for Admission~~ ] including signature of the applicant, if the applicant is able to sign, or the applicant's LAR, if applicable (Form 8654 is available on the HHSC website) [(copies of the Application for Admission are available by contacting the Department of Aging and Disability Services, Provider Services Division, State Mental Retardation Facilities Section, P.O. Box 149030, Mail Code W-511, Austin, Texas 78714-9030)];

(3) a Determination of Intellectual Disability (DID) [~~DMR~~] report with statement that the applicant has an intellectual disability, in accordance with §304.402 of this title (relating to The Determination of Intellectual Disability Report) [~~mental retardation, as described in §5.155(g) of this title (relating to Determination of Mental Retardation (DMR))~~];

(4) a completed ICAP [~~(Inventory for Client and Agency Planning)~~] booklet and Intellectual Disability and Related Conditions (ID/RC) [~~MR/RC~~] Assessment form;

(5) an IDT report completed, as described in §904.43 [~~§2.264~~] of this subchapter (relating to LIDDA [~~MRA~~] IDT Recommendation Concerning the Commitment of an Adult or a Minor or the Regular Voluntary Admission of an Adult to a Residential Care [~~State MR~~] Facility Under the PIDA [~~PMRA~~]) recommending the commitment or regular voluntary admission of the applicant to a residential care [~~state MR~~] facility, unless the applicant is court committed, as described in §904.25(b) of this subchapter or §904.29(e);

(6) copies of available psychological, medical, and social histories for the applicant;

(7) a copy of any divorce decree pertaining to the applicant;

(8) any legal document dealing with the custody of a minor;

(9) current letters of guardianship, order appointing a guardian, and related orders, if the applicant has a guardian;

(10) a copy of any will naming the applicant as a devisee;

(11) a certified copy of the applicant's birth certificate;

(12) a copy of the applicant's immunization record;

(13) a copy of the applicant's social security card;

(14) a copy of the applicant's Medicare and Medicaid card (if applicable);

(15) any record regarding care and treatment of the individual in a state mental health facility or a psychiatric hospital;

(16) for the applicant who is school eligible, the Admission, Review and Dismissal [~~(ARD)~~] Committee report, Individual Education Plan [~~(IEP)~~], and Comprehensive Assessment;

(17) for the applicant who is a minor, results of the CRCG or LIDDA staffing held, as described in §904.29(c)(1) [~~§2.257(c)~~] of this subchapter;

(18) for the applicant under 22 years of age, results of the LIDDA's [~~MRA's~~] permanency planning process, as described in §904.171(a) [~~§2.283(a)~~] of this chapter [~~subchapter~~] (relating to MRA and State MR Facility Responsibilities); and

(19) any documents concerning the applicant's immigration status.

(j) [~~(h)~~] A complete application packet for emergency admission of an individual, as referenced in subsection (g)(2) [~~(f)(2)~~] of this section, must include:

(1) a completed Form 8654, State Supported Living Center (SSLC) Admission Application, [~~for Admission~~ ] including signature of the applicant, if the applicant is able to sign, or the applicant's LAR, if applicable (Form 8654 is available on the HHSC website) [(copies of the Application for Admission are available by contacting the Department of Aging and Disability Services, Provider Services Division, State Mental Retardation Facilities Section, P.O. Box 149030, Mail Code W-511, Austin, Texas 78714-9030)];

(2) a written request from the LIDDA [~~MRA~~] for the emergency admission of the applicant;

(3) documentation:

(A) describing the persuasive evidence that the individual has an intellectual disability [~~mental retardation~~];

(B) of the reasons supporting the individual's urgent need for the emergency admission, including the circumstances precipitating the need for the emergency admission;

(D) that the requested relief can be provided by the residential care [~~state MR~~] facility within a year after the individual is admitted;

(4) a copy of any divorce decree pertaining to the individual;

(5) any legal document dealing with the custody of a minor;

(6) current letters of guardianship, order appointing a guardian and related orders, if the individual has a guardian;

(7) a certified copy of the applicant's birth certificate;

(8) a copy of the applicant's immunization record;

(9) a copy of the applicant's social security card;

(10) a copy of the applicant's Medicare and Medicaid card (if applicable);

(11) for the applicant who is school eligible, the Admission, Review and Dismissal [~~(ARD)~~] Committee report, Individual Education Plan [~~(IEP)~~], and Comprehensive Assessment;

(12) for the applicant who is a minor, the results of the CRCG or LIDDA staffing held, as described in §904.29(c)(1) [~~§2.257(c)~~] of this subchapter;

(13) for the applicant under 22 years of age, results of the LIDDA's [~~MRA's~~] permanency planning process, as described in §904.171(a) [~~§2.283(a)~~] of this chapter [~~subchapter~~];

(14) any record regarding care and treatment of the individual in a state mental health facility or a psychiatric hospital;

(15) any documents concerning the applicant's immigration status; and

(16) if requested by HHSC [~~DADS~~]:

(A) a DID [~~DMR~~] report with a statement that the applicant has an intellectual disability, [~~mental retardation, as described~~] in accordance with §304.402 [~~§5.155(g)~~] of this title[,] (relating to The Determination of Intellectual Disability Report) [~~if requested by DADS~~]; and

(B) a completed ICAP [~~(Inventory for Client and Agency Planning)~~] booklet and ID/RC [~~MR/RC~~] Assessment form.

(k) [~~(i)~~] A complete application packet for admission of an individual [~~indivisueal~~] for respite care, as referenced in subsection (g)(2) [~~susection (f)(2)~~] of this section, must include:

(1) a completed Form 8654, State Supported Living Center (SSLC) Admission Application, [~~for Admission~~ ] including signature of the applicant, if the applicant is able to sign, or the applicant's LAR, if applicable (Form 8654 is available on the HHSC website) [copies of the Application for Admission are available by contacting the Department of Aging and Disability Services, Provider Services Division, State Mental Retardation Facilities Section, P.O. Box 149030, Mail Code W-511, Austin, Texas 78714-9030)];

(2) a written request from the LIDDA [~~MRA~~] for the admission of the applicant for respite care;

(3) documentation:

(A) describing the persuasive evidence that the individual has an intellectual disability [~~mental retardation~~];

(B) of the reasons why the individual or the individual's family urgently requires respite care; and

(C) that the requested assistance or relief can be provided by the residential care [~~state MR~~] facility within a period not to exceed 30 calendar days after the date of admission;

(4) a copy of any divorce decree pertaining to the individual;

(5) any legal document dealing with the custody of a minor;

(6) current letters of guardianship, order appointing a guardian and related orders, if the individual has a guardian;

(7) a certified copy of the applicant's birth certificate;

(8) a copy of the applicant's immunization record;

(9) a copy of the applicant's social security card;

(10) a copy of the applicant's Medicare and Medicaid card (if applicable);

(11) for the applicant who is school eligible, the Admission, Review and Dismissal [~~(ARD)~~] Committee report, Individual Education Plan [~~(IEP)~~], and Comprehensive Assessment;

(12) any documents concerning the applicant's immigration status; and

(13) if requested by HHSC [~~DADS~~]:

(A) a DID [~~DMR~~] report with a statement that the applicant has an intellectual disability in accordance with §304.402 of this title [~~mental retardation, as described in §5.155(g) of this title, if requested by DADS~~]; and

(B) a completed ICAP [~~(Inventory for Client and Agency Planning)~~] booklet and ID/RC [~~MR/RC~~] Assessment form.

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 April 19, 2024.

TRD-202401668

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: June 2, 2024

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

CHAPTER 930. STATE HOSPITAL ESSENTIAL CAREGIVER DESIGNATION

26 TAC §§930.1, 930.3, 930.5, 930.7, 930.9, 930.11

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §930.1, concerning Purpose; §930.3, concerning Application; §930.5, concerning Definitions; §930.7, concerning Essential Caregiver In-Person Visitation; §930.9, concerning Revocation; and §930.11, concerning Temporary Suspension of Essential Caregiver Visits.

BACKGROUND AND PURPOSE

The proposal is necessary to comply with Texas Health and Safety Code (THSC) Chapter 552, Subchapter F, Right to Essential Caregiver Visits, enacted by Senate Bill 52, 88th Legislature, Regular Session, 2023. Specifically, §552.202 establishes the right for a patient in a state hospital, or the patient's legally authorized representative (LAR), to designate an essential caregiver with whom a state hospital cannot prohibit in-person visitation. Section 552.203 further requires the HHSC Executive Commissioner to develop guidelines for the state hospitals regarding the right to designate an essential caregiver, visitation schedules, physical contact, and safety protocols. Section 552.204 also addresses when an essential caregiver designation can be revoked, and the related right to an appeal, and Section 552.205 sets forth when a state hospital may seek a temporary suspension of visits.

SECTION-BY-SECTION SUMMARY

Proposed new §930.1, Purpose, describes that the purpose of the rules is to establish the right to designate an essential caregiver as provided by THSC Chapter 552, Subchapter F.

Proposed new §930.3, Application, describes who this chapter applies to and who must adhere to the policies outlined in this chapter.

Proposed new §930.5, Definitions, defines certain terms used throughout the chapter to help the reader understand the policy.

Proposed new §930.7, Essential Caregiver In-Person Visitation, describes the rights of a patient or the patient's LAR to designate an essential caregiver who can have in-person state hospital visitation, and guidelines for those visits.

Proposed new §930.9, Revocation, describes that each patient or the patient's LAR has the right to revoke an essential caregiver designation and may then designate another person as the essential caregiver. This section also addresses how and when a state hospital may revoke an essential caregiver designation, and how a patient, or the patient's LAR, may appeal such a revocation.

Proposed new §930.11, Temporary Suspension of Essential Caregiver Visits, describes how each state hospital can petition the state hospital associate commissioner or the state hospital associate commissioner's designee to suspend in-person essential caregiver visitation if it poses a community health risk, and how long a temporary suspension may last.

FISCAL NOTE

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

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

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

(5) the proposed rules will create a new regulation;

(6) the proposed rules will not expand, limit, or repeal existing regulations

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

(8) the proposed rules 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 rules do not apply to small businesses, micro-businesses or rural communities because they only apply to HHSC.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas; does not impose a cost on regulated persons; and the rules are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT AND COSTS

Kristy Carr, Associate Commissioner of State Hospitals, has determined that for each year of the first five years the rules are in effect, the public benefit will be that state hospital patients or the patient's LAR now can designate an essential caregiver.

Trey Wood has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because patients or the patient's LAR can designate an essential caregiver at no cost.

TAKINGS IMPACT ASSESSMENT

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 street address 701 W. 51st St, Austin, Texas 78751; 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) 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 23R070" in the subject line.

STATUTORY AUTHORITY

The new sections 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 THSC §552.203(a) which requires the Executive Commissioner of HHSC to, by rule, develop guidelines to assist state hospitals in establishing essential caregiver visitation policies and procedures; and §552.204(c) which requires HHSC to, by rule, establish an appeals process to evaluate the revocation of an individual's designation as an essential caregiver.

The new sections affect Texas Government Code §531.0055 and THSC §552.203(a) and §552.204(c).

§930.1.Purpose.

The purpose of this chapter is to provide guidance and information on the right of state hospital patients, or the patient's legally authorized representative or representatives, to designate an essential caregiver and essential caregiver visitation policies in state hospitals.

§930.3.Application.

(a) This chapter applies to the Texas state hospitals listed under Texas Health and Safety Code Section 552.002, any facilities that the Texas Health and Human Services Commission (HHSC) operates as a state hospital, and any contracted state hospital beds funded by HHSC.

(b) The entities listed under subsection (a) must adhere to the procedures outlined in this chapter and monitor compliance with the implementation of the essential caregiver designation.

§930.5.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings.

(1) Adult--An individual at least 18 years of age or older.

(2) Community Health Risk--Any action or event that places the individuals served by the facility, staff, visitors, or the general public at the chance for or exposure to injury, sickness, or loss. This includes a public safety risk or disaster declaration by government officials.

(3) Day--A calendar day.

(4) Essential Caregiver--A family member, friend, guardian, or other individual a patient or patient's legally authorized representative selects for in-person visits.

(5) LAR--Legally authorized representative. A person authorized by state law to act on behalf of an individual or patient with regard to a matter described by this chapter, including the parent of a minor child.

(6) Manifestly Dangerous--An individual who, despite receiving appropriate treatment, including treatment targeted to the individual's dangerousness, remains likely to endanger others and requires a maximum-security environment to continue treatment and protect public safety.

(7) Minor--An individual younger than 18 years of age and who has not been emancipated under the Texas Family Code.

(8) Parent--The biological or adoptive parent, managing conservator, or guardian of a minor.

(9) Patient--A person receiving services in a state hospital under this chapter.

(10) Revocation--Action taken to terminate an essential caregiver designation.

(11) State hospital--Texas state hospitals listed under Texas Health and Safety Code Section 552.002, any facilities that the Texas Health and Human Services Commission (HHSC) operates as a state hospital, and any contracted state hospital beds funded by HHSC.

(12) Suspension--Temporary prevention of in-person essential caregiver visitation.

§930.7.Essential Caregiver In-Person Visitation.

Guidelines for state hospital policies and procedures.

(1) Each patient or the patient's legally authorized representative (LAR) has the right to designate an essential caregiver with whom in-person state hospital visitation may not be prohibited except as prescribed in §930.9 of this chapter (relating to Revocation) and §930.11 of this chapter (relating to Temporary Suspension of Essential Caregiver Visits).

(2) If a patient is a minor, the patient's LAR may designate up to two parents as essential caregivers.

(3) An essential caregiver may visit the individual for at least two hours each day except when the Texas Health and Human Services Commission identifies a serious community health risk under §930.9 or §930.11 of this chapter.

(4) Physical contact between the patient and the essential caregiver during in-person visitation may occur except in circumstances where physical contact is, as a matter of safety and in the exercise of reasonable medical judgment of a member of the medical staff, determined to present a significant risk of harm to the patient, essential caregiver, or others in light of the patient's current medical or psychiatric condition; including if a patient has been determined to be manifestly dangerous pursuant to 25 TAC Chapter 415, Subchapter G (relating to Determination of Manifest Dangerousness). The determination must be documented in the patient's medical record.

(5) The state hospital must provide a copy of visitation policies to the designated essential caregiver within 48 hours of the designated essential caregiver's agreement to become the essential caregiver and obtain a signed agreement form certifying that the essential caregiver agrees to follow the state hospital safety protocols for essential caregiver visits. This signed agreement must be placed in the patient's medical record.

(6) The state hospital may not establish safety protocols more restrictive for essential caregivers than those established for state hospital staff.

§930.9.Revocation.

(a) Each patient or the patient's LAR has the right to revoke an essential caregiver designation. The patient, the patient's guardian, or the patient's LAR may then designate another person as the essential caregiver.

(b) The state hospital may revoke an individual's essential caregiver designation if the individual violates state hospital policies, procedures, or safety protocols. At the time of revocation, the essential caregiver and the patient or the patient's LAR will be provided a copy of the violated policy, procedure, or safety protocol.

(1) the patient, or the patient's LAR, has the right to designate another individual as the essential caregiver immediately;

(A) within 24 hours, the state hospital shall notify the patient or the patient's LAR of the revocation in person or by phone and the notification must be documented in the patient's record; and

(B) within two business days, the state hospital shall send a revocation notification letter to the patient or the patient's LAR via certified mail to include the state hospital appeal process;

(2) the patient or the patient's LAR may petition the state hospital associate commissioner to appeal the revocation of an essential caregiver's designation;

(A) not later than the 14th calendar day after the date of revocation, the patient or the patient's LAR, may request an appeal by submitting a written request to the state hospital associate commissioner's office;

(B) the state hospital associate commissioner or designee will make a determination on the essential caregiver appeal not later than the 14th calendar day after receiving the request; and

(C) the outcome will be documented in the patient's record and a decision letter will be sent to the requestor within two business days of the determination, if the patient or the patient's LAR files an appeal; and

(3) if the revocation is upheld, within two business days, the state hospital will send a revocation letter to the essential caregiver and the patient or the patient's LAR via certified mail.

§930.11.Temporary Suspension of Essential Caregiver Visits.

(a) Each state hospital may petition the state hospital associate commissioner or the state hospital associate commissioner's designee to suspend in-person essential caregiver visitation if in-person visitation poses a serious community health risk.

(1) The state hospital associate commissioner or designee may only approve a suspension for up to seven calendar days.

(2) State hospitals must request each suspension separately.

(3) The state hospital associate commissioner may deny the state hospital request.

(b) Each state hospital may petition the state hospital associate commissioner or the state hospital associate commissioner's designee to extend a suspension of in-person essential caregiver visitation for more than seven calendar days if in-person visitation continues to pose a serious community health risk.

(1) The state hospital associate commissioner or designee may only approve an extension for up to seven calendar days.

(2) State hospitals must request each extension separately.

(3) The state hospital associate commissioner may deny the state hospital request.

(c) A state hospital may not suspend in-person essential caregiver visitation in the 12 months from the date of the initial suspension for a period that:

(1) is more than 14 consecutive calendar days; or

(2) is more than a total of 45 calendar days.

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 April 19, 2024.

TRD-202401671

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: June 2, 2024

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