TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES

CHAPTER 60. CONTRACTING TO PROVIDE PROGRAMS OF ALL-INCLUSIVE CARE FOR THE ELDERLY (PACE)

The Texas Health and Human Services Commission (HHSC) adopts an amendment to §60.6, the repeal of §60.10, and new §60.10, in Chapter 60, Contracting to Provide Programs of All-Inclusive Care for the Elderly (PACE). The amendment, repeal, and new section are adopted without changes to the proposed text published in the October 28, 2016, issue of the Texas Register (41 TexReg 8553) and will not be republished.

BACKGROUND AND PURPOSE

The adopted rules implement Senate Bill (SB) 169, 84th Legislature, Regular Session, 2015, which added Texas Government Code, §531.0931, regarding certain military members and their family members on interest lists. The adopted rules require a PACE provider agency to keep the name of a military family member who resides out of state on an interest list while the military member is on active duty or for up to one year after a former military member's active duty ends. The adopted rules describe how a PACE provider agency maintains an interest list and offers services to an individual. The adopted rules also allow the Department of Aging and Disability Services or its successor agency to remove an individual from the interest list if the individual or legally authorized representative fails to respond to a PACE vacancy offer within 30 days.

COMMENT

The 30-day comment period ended November 27, 2016. During this period, no comments were received regarding the adoption of the repeal, amendment, and new section.

40 TAC §60.6, §60.10

STATUTORY AUTHORITY

The amendment and new section are adopted under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendment and new section implement Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §32.021.

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 February 3, 2017.

TRD-201700481

Lawrence Hornsby

General Counsel

Department of Aging and Disability Services

Effective date: February 23, 2017

Proposal publication date: October 28, 2016

For further information, please call: (512) 438-2973


40 TAC §60.10

The repeal is adopted under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The repeal implements Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §32.021.

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 February 3, 2017.

TRD-201700480

Lawrence Hornsby

General Counsel

Department of Aging and Disability Services

Effective date: February 23, 2017

Proposal publication date: October 28, 2016

For further information, please call: (512) 438-2973


PART 12. TEXAS BOARD OF OCCUPATIONAL THERAPY EXAMINERS

CHAPTER 372. PROVISION OF SERVICES

40 TAC §372.1

The Texas Board of Occupational Therapy Examiners adopts an amendment to §372.1, concerning provision of services, with a change to the proposed text as published in the December 2, 2016, issue of the Texas Register (41 TexReg 9448). Rule §372.1 is republished below.

The amendment will clarify provisions regarding referrals for occupational therapy services.

The amendment will clarify language in the section regarding the receipt of verbal and written referrals for occupational therapy services and clarify that with regard to medical conditions, a referral must be requested at any time during the evaluation process when necessary to ensure the safety and welfare of the client.

The December 2, 2016, proposed amendment to §372.1 included the following provision in §372.1(d)(2): "If a referral is transmitted verbally, it must be documented by the authorized personnel who receives the referral." The change upon adoption is to add to the provision clarifying language defining "authorized personnel." The addition reads: "In this section, 'authorized personnel' means staff members authorized by the employer or occupational therapist to receive referrals transmitted verbally."

No comments were received regarding adoption of the amendment.

The amendment is adopted under the Occupational Therapy Practice Act, Title 3, Subtitle H, Chapter 454, Occupations Code, which provides the Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.

§372.1.Provision of Services.

(a) The occupational therapist is responsible for determining whether any aspect of the provision of services may be conducted via telehealth or must be conducted in person.

(b) Medical Conditions.

(1) Occupational therapists may provide consultation or monitored services, or screen or evaluate the client to determine the need for occupational therapy services without a referral. However, a referral must be requested at any time during the evaluation process when necessary to ensure the safety and welfare of the client.

(2) The initial evaluation for a medical condition must be conducted in person and may not be conducted via telehealth.

(3) Intervention for a medical condition by an occupational therapy practitioner requires a referral from a licensed referral source.

(c) Non-Medical Conditions.

(1) Consultation, monitored services, screening, and evaluation for need of services may be provided without a referral.

(2) Non-medical conditions do not require a referral. However, a referral must be requested at any time during the evaluation or intervention process when necessary to ensure the safety and welfare of the client.

(d) Methods of Referral. The referral must be from a licensed referral source in accordance with the Practice Act, §454.213 (relating to Accepted Practice; Practitioner's Referral), and may be transmitted in the following ways:

(1) in a written document, including faxed and emailed documents; or

(2) verbally, either in person or by electronic information/communications technologies. If a referral is transmitted verbally, it must be documented by the authorized personnel who receives the referral. In this section, "authorized personnel" means staff members authorized by the employer or occupational therapist to receive referrals transmitted verbally.

(e) Screening, Consultation, and Monitored Services. A screening, consultation, or monitored services may be performed by an occupational therapy practitioner.

(f) Evaluation.

(1) Only an occupational therapist may perform an initial evaluation or any re-evaluations.

(2) An occupational therapy plan of care must be based on an occupational therapy evaluation.

(3) The occupational therapist must have real time interaction with the client during the evaluation process either in person or via telehealth.

(4) The occupational therapist may delegate to an occupational therapy assistant or temporary licensee the collection of data for the assessment. The occupational therapist is responsible for the accuracy of the data collected by the assistant.

(g) Plan of Care.

(1) Only an occupational therapist may initiate, develop, modify or complete an occupational therapy plan of care. It is a violation of the OT Practice Act for anyone other than the evaluating or treating occupational therapist to dictate, or attempt to dictate, when occupational therapy services should or should not be provided, the nature and frequency of services that are provided, when the client should be discharged, or any other aspect of the provision of occupational therapy as set out in the OT Act and Rules.

(2) The occupational therapist and an occupational therapy assistant may work jointly to revise the short-term goals, but the final determination resides with the occupational therapist. Revisions to the plan of care and goals must be documented by the occupational therapist and/or occupational therapy assistant to reflect revisions at the time of the change.

(3) An occupational therapy plan of care may be integrated into an interdisciplinary plan of care, but the occupational therapy goals or objectives must be easily identifiable in the plan of care.

(4) Only occupational therapy practitioners may implement the written plan of care once it is completed by the occupational therapist.

(5) Only the occupational therapy practitioner may train non-licensed personnel or family members to carry out specific tasks that support the occupational therapy plan of care.

(6) The occupational therapist is responsible for determining whether intervention is needed and if a referral is required for occupational therapy intervention.

(7) The occupational therapy practitioners must have real time interaction with the client during the intervention process either in person or via telehealth.

(8) Devices that are in sustained skin contact with the client (including but not limited to wheelchair positioning devices, splints, hot/cold packs, and therapeutic tape) require the on-site and attending presence of the occupational therapy practitioner for any initial applications. The occupational therapy practitioner is responsible for determining the need to be on-site and attending for subsequent applications or modifications.

(9) Except where otherwise restricted by rule, the supervising occupational therapist may only delegate to an occupational therapy assistant or temporary licensee tasks that they both agree are within the competency level of that occupational therapy assistant or temporary licensee.

(h) Documentation.

(1) The client's records include the medical referral, if required, and the plan of care. The plan of care includes the initial examination and evaluation; the goals and any updates or change of the goals; the documentation of each intervention session by the OT or OTA providing the service; progress notes and any re-evaluations, if required; any written communication; and the discharge documentation.

(2) The licensee providing occupational therapy services must document for each intervention session. The documentation must accurately reflect the intervention, decline of intervention, and/or modalities provided.

(3) The occupational therapy assistant must include the name of a supervising OT in each intervention note. This may not necessarily be the occupational therapist who wrote the plan of care, but an occupational therapist who is readily available to answer questions about the client's intervention at the time of the provision of services. If this requirement is not met, the occupational therapy assistant may not provide services.

(i) Discharge.

(1) Only an occupational therapist has the authority to discharge clients from occupational therapy services. The discharge is based on whether the client has achieved predetermined goals, has achieved maximum benefit from occupational therapy services, or when other circumstances warrant discontinuation of occupational therapy services.

(2) The occupational therapist must review any information from the occupational therapy assistant(s), determine if goals were met or not, complete and sign the discharge documentation, and/or make recommendations for any further needs of the client in another continuum of care.

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 February 6, 2017.

TRD-201700485

John P. Maline

Executive Director

Texas Board of Occupational Therapy Examiners

Effective date: March 1, 2017

Proposal publication date: December 2, 2016

For further information, please call: (512) 305-6900


CHAPTER 374. DISCIPLINARY ACTIONS/DETRIMENTAL PRACTICE/COMPLAINT PROCESS/CODE OF ETHICS

40 TAC §374.5

The Texas Board of Occupational Therapy Examiners adopts new rule §374.5, concerning licensure of persons with criminal convictions, without changes to the proposed text as published in the December 2, 2016, issue of the Texas Register (41 TexReg 9450). The rule will not be republished.

The adopted rule concerns licensure by the Texas Board of Occupational Therapy Examiners of persons with criminal convictions.

The new rule §374.5 will specify the types of criminal activities that may result in denial, suspension, or revocation of a license in accordance with the Sunset Commission's adopted recommendation that the Texas Board of Occupational Therapy Examiners adopt rules regarding such.

No comments were received regarding adoption of the rule section.

The rule is adopted under the Occupational Therapy Practice Act, Title 3, Subtitle H, Chapter 454, Occupations Code, which provides the Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.

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 February 6, 2017.

TRD-201700488

John P. Maline

Executive Director

Texas Board of Occupational Therapy Examiners

Effective date: February 26, 2017

Proposal publication date: December 2, 2016

For further information, please call: (512) 305-6900