PART 1. HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 553. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts 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; and 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.
The amendments to §553.255 and §553.257 are adopted without changes to the proposed text as published in the May 3, 2024, issue of the Texas Register (49 TexReg 2944). These rules will not be republished.
The amendments to §553.17 and §553.329, and new §553.254, are adopted with changes to the proposed text as published in the May 3, 2024, issue of the Texas Register (49 TexReg 2944). These rules will be republished.
BACKGROUND AND JUSTIFICATION
The purpose of the amended and new rules 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.
COMMENTS
The 31-day comment period ended June 3, 2024.
During this period, HHSC received seven comments regarding the proposed rules from two commenters: the Legislative Director for State Senator Royce West and Vice President of Public Policy Texas Assisted Living Association (TALA). A summary of comments relating to the rules and HHSC's responses follows.
Comment: One commentor questioned the meaning of "administrative support services" in §553.254(b)(1)(F).
Response: "Administrative support services" was the phrase used in H.B. 1673 (current Texas Health and Safety Code §247.0291). Because this phrase is used to describe training required of assisted living facility managers, HHSC interprets it to refer to training related to facility management (as opposed to direct care staff).
Comment: One commentor suggested hyphenating "medically appropriate" in §553.254(b)(1)(F)(iii).
Response: HHSC declines to make the suggested change. Language in this rule is taken directly from the bill and is grammatically correct.
Comment: One commentor requested that the rule require that the facility be informed of an employee's reportable conduct determination in §553.257(b)(8).
Response: HHSC declines to make this change. Existing HHSC employee misconduct registry (EMR) notification processes already include notifying the facility where the individual was employed at the time the reportable conduct occurred.
Comment: One commenter suggested that §553.257(b)(8)(B) expressly state that, if at the end of the appeals process, the hearings examiner concludes that reportable conduct "did not" happen, the facility should be allowed to reinstate an employee's employment. The commenter submitted suggested language to describe when a facility may reinstate employment.
Response: HHSC declines to make the suggested change. The rule reflects the language used in H.B. 1009 (current Texas Health and Safety Code §253.0025) and §253.004 and §253.005.
Comment: One commenter suggested striking §553.257(b)(9), arguing that HHSC--not the facility--makes the referral to the EMR.
Response: HHSC declines to make the suggested change as this provision defines a term used in the section and does not impose a duty on facilities.
Comment: One commenter suggested that the rule use "shall, may, or must" rather than "seeks" in §553.329(e) related to on-site investigations.
Response: HHSC agrees with the commenter's suggested language in part and edited the rule language using "may seek."
Comment: One commenter recommended changing the phrase in §553.329(e) from "HHSC seeks a probate or county court order for admission" to "HHSC seeks a court order for admission from a county, probate, or state district court."
Response: HHSC agrees with the commenter's suggested language and edited the wording for clarity. HHSC added the option for a peace officer to accompany the HHSC investigator.
HHSC made punctuation and grammar edits in §553.17 and §553.254.
SUBCHAPTER B. LICENSING
STATUTORY AUTHORITY
The amendment is adopted under 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 ensure the quality of care and protection of assisted living facility residents' health and safety, respectively.
§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;
(C) shared services, personnel, or equipment in any part of the facilities' operations; and
(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;
(C) engages in subterfuge or other evasive means of filing on behalf of another who is unqualified 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 adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 23, 2024.
TRD-202403909
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: September 12, 2024
Proposal publication date: May 3, 2024
For further information, please call: (512) 438-3161
26 TAC §§553.254, 553.255, 553.257
STATUTORY AUTHORITY
The amendments and new section are adopted under 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 ensure the quality of care and protection of assisted living facility residents' health and safety, respectively.
§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;
(C) assessment and care planning;
(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;
(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;
(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.
(c) A facility must require a staff member who provides personal care services 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;
(C) assessment and care planning;
(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.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 23, 2024.
TRD-202403910
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: September 12, 2024
Proposal publication date: May 3, 2024
For further information, please call: (512) 438-3161
STATUTORY AUTHORITY
The amendment is adopted under 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 ensure the quality of care and protection of assisted living facility residents' health and safety, respectively.
§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.
(c) HHSC refers all other complaints of abuse, neglect, or exploitation not meeting subsection (b) of this section to DFPS.
(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.
(e) If a facility fails to admit HHSC staff for an on-site investigation, HHSC may seek a court order for admission from a county, probate, or state district court. An HHSC investigator may ask the court to have a peace officer accompany them.
(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 adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 23, 2024.
TRD-202403911
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: September 12, 2024
Proposal publication date: May 3, 2024
For further information, please call: (512) 438-3161