TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES

CHAPTER 3. RESPONSIBILITIES OF STATE FACILITIES

The Texas Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §3.101, concerning Definitions; §3.301, concerning Prohibition of Abuse, Neglect, and Exploitation; and §3.305, Completion of an Investigation, in Chapter 3, Administrative Responsibilities of State Facilities.

BACKGROUND AND PURPOSE

The proposed amendments clarify responsibilities of a state supported living center and the director of a state supported living center after the Department of Family and Protective Services (DFPS) completes an investigation of alleged abuse, neglect, or exploitation. The proposed amendments add new definitions and amend existing definitions of terms used in Chapter 3, Subchapter C, relating to Abuse, Neglect and Exploitation. The terms and definitions are consistent with terminology used by DFPS and the Centers for Medicare & Medicaid (CMS), the federal agency that oversees certification of facilities participating in the Intermediate Care for Individuals with an Intellectual Disability and Related Conditions (ICF/IID) Program. The proposed amendments set forth the process that the director of a state supported living center must follow to contest the findings of DFPS regarding an allegation of abuse, neglect, or exploitation at the state supported living center. The amendments also set forth who may obtain a copy of a DFPS investigative report, consistent with DFPS rules. The proposed amendments also make editorial changes for clarity and consistency.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §3.101 adds definitions of "abuse," "exploitation," and "neglect" that reference the applicable terms and definitions used in rules of DFPS in Texas Administrative Code, Title 40, Chapter 711, and the CMS State Operations Manual, Appendix J, Guidance to Surveyors: Intermediate Care Facilities for Individuals with Intellectual Disabilities. DFPS investigates alleged abuse, neglect, and exploitation in facilities in accordance with state law and Chapter 711. Facilities are certified to participate in the federal Intermediate Care Facility for Individuals with an Intellectual Disability Program and, therefore, are surveyed in accordance with the CMS State Operations Manual. The definitions of "DADS" and "DFPS" are being proposed for amendment to include a successor agency. This proposed amendment reflects the transfer of some of the agencies' functions to the Health and Human Services Commission on September 1, 2017. The term "DADS Commissioner" and a definition are proposed to be added to clarify that it will be a position at HHSC to which a duty under this chapter is transferred when DADS is abolished. The proposed amendments to the definitions of "inconclusive" and "unconfirmed" make them consistent with definitions in the DFPS Adult Protective Services Investigations Policy Handbook. The proposed amendment to the definition of "preponderance of evidence" makes it consistent with the definition in DFPS rule at 40 TAC §711.3. The proposed amendment deletes the definition of "primary contact," because the amendment to §3.305 deletes all uses of the term in Chapter 3 and, therefore, a definition is no longer necessary. The proposed amendment to the definition of "protection and advocacy organization" corrects the citation to the federal regulation under which a protection and advocacy system is designated. In addition, the term "agent" is replaced with "system" for consistency with the terminology used in the federal regulation. Currently, the protection and advocacy organization in Texas is Disability Rights Texas. The proposed amendment to the definition of "victim" includes both a person who has been abused, neglected or exploited, and a person who is alleged to have been abused, neglected or exploited.

The proposed amendment to §3.301 deletes subsection (a), which referenced 40 TAC Chapter 711 for the definitions of "abuse," "neglect," and "exploitation." The subsection is unnecessary, because definitions of those terms have been added to §3.101.

The proposed amendment to §3.305 updates certain processes that apply when DFPS completes an investigation of alleged abuse, neglect, or exploitation. Subsection (b) describes the process for the DADS Commissioner to contest a secondary appeal decision of DFPS by requesting that the DFPS Commissioner reconsider the decision. DFPS rules, at 40 TAC §711.913, require DADS rules to describe this process. The proposed amendment states that DADS may not contest the decision of the DFPS Commissioner. Consistent with DFPS rules in 40 TAC Chapter 711, Subchapter J, subsections (c), (g), and (k) do not allow a DFPS investigative report to be provided to a victim's "primary contact." Subsections (c), (g), (h), and (k) describe how the protection and advocacy organization, as an individual's designated representative, may receive a copy of a DFPS investigative report. Additional proposed amendments to §3.305 edit the section for clarity and consistency.

FISCAL NOTE

David Cook, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendments are in effect, enforcing or administering the amendments does not have foreseeable implications relating to costs or revenues of state or local governments.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed amendments will not have an adverse economic effect on small businesses or micro-businesses.

PUBLIC BENEFIT AND COSTS

Scott Schalchlin, Assistant Commissioner, has determined that, for each year of the first five years the amendments are in effect, the public will benefit from the rules because they set forth processes to be followed after an investigation of abuse, neglect, or exploitation is complete, including the information to be provided to a victim and the protection and advocacy organization. The rule amendments will help ensure the confidentiality of DFPS investigative reports by clarifying who may obtain those reports, consistent with DFPS rules.

Mr. Schalchlin anticipates that there will not be an economic cost to persons who are required to comply with the amendments. The amendments will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

DADS has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Julia Marsh-Klepac at (512) 438-2106 in the DADS State Supported Living Centers Division. Written comments on the proposal may be submitted to Rules Coordination Office, H-600, P.O. Box 149030, Austin, Texas 78714-9030; or e-mailed to HHSRulesCoordinationOffice@hhsc.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be: (1) postmarked or shipped before the last day of the comment period; or (2) e-mailed by midnight on the last day of the comment period. Please indicate "Comments on Proposed Rule 16R14" in the subject line of the email or in your mailed comments.

SUBCHAPTER A. DEFINITIONS

40 TAC §3.101

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS.

The amendment affects Texas Government Code, §531.0055.

§3.101.Definitions.

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

(1) Abuse--An act or failure to act that, with regard to an individual, meets the definition of "physical abuse," "sexual abuse," or "verbal/emotional abuse" in Chapter 711, Subchapter A of this title (relating to Introduction), or the definition of "abuse," "physical abuse," "sexual abuse," "verbal abuse," "psychological abuse," or "threat" in the Centers for Medicare & Medicaid Services (CMS) State Operations Manual, Appendix J, Guidance to Surveyors: Intermediate Care Facilities for Individuals with Intellectual Disabilities, available at www.cms.gov.

(2) [(1)] Administrative death review--An administrative, quality-assurance activity related to the death of an individual to identify non-clinical problems requiring correction and opportunities to improve the quality of care at a facility.

(3) [(2)] Allegation--A report by a person suspecting or having knowledge that an individual has been or is in a state of abuse, neglect, or exploitation as defined in this chapter.

(4) [(3)] Alleged offender--An individual who was committed or transferred to a facility:

(A) under Texas Code of Criminal Procedure, Chapters 46B or 46C, as a result of being charged with or convicted of a criminal offense; or

(B) under Texas Family Code, Chapter 55, as a result of being alleged by petition or having been found to have engaged in delinquent conduct constituting a criminal offense.

(5) [(4)] Applicant--A person who has applied to be an employee, volunteer, or unpaid professional intern.

(6) [(5)] Attending physician--The physician who has primary responsibility for the treatment and care of an individual.

(7) [(6)] Bedroom--The room at a facility in which an individual usually sleeps.

(8) [(7)] Behavioral crisis--An imminent safety situation that places an individual or others at serious risk of violence or injury if no intervention occurs.

(9) [(8)] CANRS--The client abuse and neglect reporting system maintained by DADS Consumer Rights and Services.

(10) [(9)] Capacity--An individual's ability to:

(A) understand the nature and consequences of a proposed treatment, including the benefits, risks, and alternatives to the proposed treatment; and

(B) make a decision whether to undergo the proposed treatment.

(11) [(10)] Chemical restraint--Any drug prescribed or administered to sedate an individual or to temporarily restrict an individual's freedom of movement for the purpose of managing the individual's behavior.

(12) [(11)] Child--An individual less than 18 years of age who is not and has not been married and who has not had the disabilities of minority removed pursuant to Texas Family Code, Chapter 31.

(13) [(12)] Clinical death review--A clinical, quality-assurance, peer review activity related to the death of an individual and conducted in accordance with statutes that authorize peer review in Texas to identify clinical problems requiring correction and opportunities to improve the quality of care at a facility.

(14) [(13)] Clinical practice--The demonstration of professional competence in nursing, dental, pharmacy, or medical practice as described in the relevant chapter of the Texas Occupations Code.

(15) [(14)] Confirmed--Term used to describe an allegation that DFPS determines is supported by a preponderance of the evidence.

(16) [(15)] Contractor--A person who contracts with a facility to provide services to an individual, including an independent school district that provides educational services at the facility.

(17) [(16)] Conviction--The adjudication of guilt for a criminal offense.

(18) [(17)] Covert electronic monitoring--Electronic monitoring that is not open and obvious, and that is conducted when the director of the facility in which the monitoring is being conducted has not been informed about the device by the individual, by a person who placed the device in the bedroom, or by a person who uses the device.

(19) [(18)] Crisis intervention--The use of interventions, including physical, mechanical, or chemical restraint, in a behavioral crisis, after less restrictive measures have been determined to be ineffective or not feasible.

(20) [(19)] Crisis intervention plan--A component of the individual support plan (ISP) action plan that provides instructions for staff on how to effectively and safely use restraint procedures, as long as they are needed to prevent imminent physical injury in a behavioral crisis when less restrictive prevention or de-escalation procedures have failed and the individual's behavior continues to present an imminent risk of physical injury. The plan is developed with input from the PCP and direct support professionals familiar with the individual and the individual and LAR and includes a description of how the individual behaves during a behavioral crisis, along with information about the types of restraints that have been most effective with the individual, staff actions to be avoided because they have been ineffective in the past in preventing or reducing the need for restraints, the restraint's maximum duration, a description of the behavioral criteria for determining when the imminent risk of physical injury abates, and reporting requirements. A crisis intervention plan is not considered a therapeutic intervention. It is implemented only to ensure that restraint procedures are carried out effectively and safely and may be adjusted depending upon the individual's progress in the ISP action plan.

(21) [(20)] DADS--Department of Aging and Disability Services or its successor agency.

(22) DADS Commissioner--The commissioner of DADS or a position at the Health and Human Services Commission that assumes a duty of the commissioner of DADS described in this chapter.

(23) [(21)] Deferred adjudication--Has the meaning given to "community supervision" in Texas Code of Criminal Procedure, Article 42.12, §2.

(24) [(22)] Designated representative--A person designated by an individual or an individual's LAR to be a spokesperson or advocate for the individual.

(25) [(23)] DFPS--Department of Family and Protective Services or its successor agency.

(26) [(24)] Director--The director of a facility or the director's designee.

(27) [(25)] Direct support professional--An unlicensed employee who directly provides services to an individual.

(28) [(26)] Electronic monitoring--The placement of an electronic monitoring device in an individual's bedroom and making a tape or a recording with the device.

(29) [(27)] Electronic monitoring device (EMD)--A device that:

(A) includes:

(i) a video surveillance camera; and

(ii) an audio device designed to acquire communications or other sounds; and

(B) does not include an electronic, mechanical, or other device that is specifically used for the nonconsensual interception of wire or electronic communications.

(30) [(28)] Employee--A person employed by DADS whose assigned duty station is at a facility.

(31) Exploitation--An act or failure to act that, with regard to an individual, meets the definition of "exploitation" in Chapter 711, Subchapter A of this title (relating to Introduction), or the definition of "mistreatment" in the CMS State Operations Manual, Appendix J, Guidance to Surveyors: Intermediate Care Facilities for Individuals with Intellectual Disabilities, available at www.cms.gov.

(32) [(29)] Facility--A state supported living center or the intermediate care facility for individuals with an intellectual disability component of the Rio Grande State Center.

(33) [(30)] Family member--An individual's parent, spouse, children, or siblings.

(34) [(31)] Forensic facility--A facility designated under Texas Health and Safety Code (THSC), §555.002(a) for the care of high-risk alleged offenders.

(35) [(32)] Guardian--An individual appointed and qualified as a guardian of the person under Texas Estates Code, Title 3.

(36) [(33)] High-risk alleged offender--An alleged offender who has been determined to be at risk of inflicting substantial physical harm to another person in accordance with THSC §555.003.

(37) [(34)] Inconclusive--Term used to describe an allegation when there is not a preponderance of credible evidence to indicate that abuse, neglect, or exploitation did or did not occur due to lack of witnesses or other available evidence [leading to no conclusion or definite result by DFPS due to lack of witnesses or other relevant evidence].

(38) [(35)] Independent mortality review organization--An independent organization designated in accordance with Texas Government Code, Chapter 531, Subchapter U, to review the death of an individual.

(39) [(36)] Individual--A person with an intellectual disability or a condition related to an intellectual disability who is receiving services from a facility.

(40) [(37)] Individual support plan (ISP)--An integrated, coherent, person-directed plan that reflects an individual's preferences, strengths, needs, and personal vision, as well as the protections, supports, and services the individual will receive to accomplish identified goals and objectives.

(41) [(38)] Interdisciplinary team (IDT)--A team consisting of an individual, the individual's legally authorized representative (LAR) and qualified developmental disability professional, other professionals dictated by the individual's strengths, preferences, and needs, and staff who regularly and directly provide services and supports to the individual. The team is responsible for assessing the individual's treatment, training, and habilitation needs and making recommendations for services based on the personal goals and preferences of the individual using a person-directed planning process, including recommendations on whether the individual is best served in a facility or community setting.

(42) [(39)] Legally adequate consent--Consent from a person who:

(A) is not a minor and has not been adjudicated incompetent to manage the person's personal affairs by an appropriate court of law;

(B) has been informed of and understands:

(i) the nature, purpose, consequences, risks, and benefits of the medication, treatment, or procedure for which the consent is given;

(ii) alternatives to the medication, treatment, or procedure for which the consent is given;

(iii) that withdrawing or refusing to give consent will not prejudice the future provision of care and services; and

(iv) the method of administration, if the person is giving consent for an unusual or hazardous treatment procedure, experimental research, organ transplantation, or nontherapeutic surgery; and

(C) consents voluntarily, free from coercion or undue influence.

(43) [(40)] Legally authorized representative (LAR)--A person authorized by law to act on behalf of an individual, including a parent, guardian, or managing conservator of a minor individual, or a guardian of an adult individual.

(44) [(41)] Life-sustaining medical treatment--Treatment that, based on reasonable medical judgment, sustains the life of an individual and without which the individual will die. The term includes both life-sustaining medications and artificial life support such as mechanical breathing machines, kidney dialysis treatment, and artificial nutrition and hydration. The term does not include the administration of pain management medication or the performance of a medical procedure considered necessary to provide comfort care or any other medical care provided to alleviate an individual's pain.

(45) [(42)] Mechanical restraint--Any device attached or adjacent to an individual's body that he or she cannot easily remove that restricts freedom of movement or normal access to his or her body. The term does not include a protective device.

(46) [(43)] Medical emergency--Any illness or injury that requires immediate assessment and treatment by medical staff for conditions considered to be life threatening, including, but not limited to, respiratory or cardiac arrest, choking, extreme difficulty in breathing, status epilepticus, allergic reaction to an insect sting, snake bite, extreme pain in the chest or abdomen, poisoning, hemorrhage, loss of consciousness, sudden loss of function of a body part, injuries resulting in broken bones, possible neck or back injuries, or severe burns.

(47) [(44)] Medical intervention--Treatment by a licensed medical doctor, osteopath, podiatrist, dentist, physician assistant, or advanced practice registered nurse in accordance with general acceptable clinical practice.

(48) [(45)] Medical restraint--A health-related protection prescribed by a primary care provider (PCP) or dentist that is necessary for the conduct of a specific medical or dental procedure, or is only necessary for protection during the time that a medical or dental condition exists, for the purpose of preventing an individual from inhibiting or undoing medical or dental treatment. Medical restraint includes pre-treatment sedation.

(49) [(46)] Medical restraint plan--A component of the ISP action plan that provides instructions for staff on how to effectively and safely carry out medical restraint procedures. The plan is developed with input from the PCP or dentist and meaningful input from the individual and LAR and includes a description of the individual's behaviors that do not allow for a safe and effective implementation of needed medical or dental procedures, information about the types of restraints that have been most effective with the individual, a description of the criteria for releasing the restraint, and reporting requirements. A medical restraint plan is not considered a therapeutic intervention and may be adjusted depending upon the individual's progress in the ISP action plan.

(50) [(47)] Medication-related emergency--A situation in which it is immediately necessary to administer medication to an individual to prevent:

(A) imminent probable death or substantial bodily harm to the individual because the individual:

(i) overtly or continually is threatening or attempting to commit suicide or serious bodily harm; or

(ii) is behaving in a manner that indicates that the individual is unable to satisfy the individual's need for nourishment, essential medical care, or self-protection; or

(B) imminent physical or emotional harm to another because of threats, attempts, or other acts the individual overtly or continually makes or commits.

(51) [(48)] Mental health services provider--Has the meaning assigned in Texas Civil Practice and Remedies Code, Chapter 81.

(52) Neglect--An act or failure to act that, with regard to an individual, meets the definition of "neglect" in Chapter 711, Subchapter A of this title (relating to Introduction), or the definition of "neglect" in the CMS State Operations Manual, Appendix J, Guidance to Surveyors: Intermediate Care Facilities for Individuals with Intellectual Disabilities, available at www.cms.gov.

(53) [(49)] Peer review--A review of clinical or professional practice of a doctor, pharmacist, licensed vocational nurse, or registered nurse conducted by his or her professional peers.

(54) [(50)] Perpetrator--A person who has committed [an act of] abuse, neglect, or exploitation.

(55) [(51)] Person--Includes a corporation, organization, governmental subdivision or agency, or any other legal entity.

(56) [(52)] Physical restraint--Any manual method that restricts freedom of movement or normal access to one's body, including hand or arm holding to escort an individual over his or her resistance to being escorted. Physical restraint does not include brief and limited use of physical guidance, positioning, or prompting techniques used to redirect an individual or assist, support, or protect the individual during a functional therapeutic or physical exercise activity; response blocking and brief redirection used to interrupt an individual's limbs or body without the use of force so that the occurrence of challenging behavior is prevented; holding an individual, without the use of force, to calm or comfort, or hand holding to escort an individual from one area to another without resistance from the individual; and response interruption used to interrupt an individual's behavior, using facility-approved techniques.

(57) [(53)] Physician on duty--The physician designated by the facility's medical director to provide medical care or respond to emergencies outside regular working hours.

(58) [(54)] Positive behavior support plan (PBSP)--A comprehensive, individualized plan that contains intervention strategies designed to modify the environment, teach or increase adaptive skills, and reduce or prevent the occurrence of target behaviors through interventions that build on an individual's strengths and preferences, without using aversive or punishment contingencies.

(59) [(55)] Preponderance of the evidence--Evidence that is of greater weight or more convincing than the evidence that is offered in opposition to it; that is, evidence that, as a whole, shows that the fact sought to be proved is more probable than not [The greater weight of evidence, or evidence that is more credible and convincing to the mind].

(60) [(56)] Primary care provider (PCP)--A physician, advanced practice nurse, or physician assistant who provides primary care to a defined population of patients. The PCP is involved in health promotion, disease prevention, health maintenance, and diagnosis and treatment of acute and chronic illnesses.

[(57) Primary contact--The person designated as the primary contact of an alleged victim of abuse, neglect, or exploitation, if the alleged victim is an adult with an intellectual disability who is unable to authorize the disclosure of protected health information and does not have a guardian.]

(61) [(58)] Prone restraint--Any physical or mechanical restraint that places the individual in a face-down position. Prone restraint does not include when an individual is placed in a face-down position as a necessary part of a medical intervention, or when an individual moves into a prone position during an incident of physical restraint, if staff immediately begin an adjustment to restore the individual to a standing, sitting, or side-lying position or, if that is not possible, immediately release the person. Prone restraint is prohibited.

(62) [(59)] Protection and advocacy organization--The protection and advocacy system [agent] for Texas designated in accordance with the Code of Federal Regulations, Title 45, §1326.20 [§1386.20].

(63) [(60)] Protective mechanical restraint for self-injurious behavior--A type of mechanical restraint applied before an individual engages in self-injurious behavior, for the purpose of preventing or mitigating the danger of the self-injurious behavior because there is evidence that the targeted behavior can result in serious self-injury when it occurs and intensive, one-to-one supervision and treatment have not yet reduced the danger of self-injury. Examples include, but are not limited to, protective head gear for head banging, arm splints for eye gouging, or mittens for hand-biting. The term does not include medical restraints or protective devices.

(64) [(61)] Protective mechanical restraint plan for self-injurious behavior--A component of the ISP action plan that provides instructions for staff on how to effectively and safely apply the protective mechanical restraint that is used to prevent or mitigate the effects of serious self-injurious behavior. The plan is developed with input from direct support professionals familiar with the individual and meaningful input from the individual and LAR, and includes a description of the individual's self-injurious behaviors, the type of restraint to be used, the restraint's maximum duration, and the circumstances to apply and remove the restraint. The plan must identify any low-risk situations when the restraint may be safely removed, what staff should do during those situations to continue to protect the individual from harm, and adjustments in staff instructions as progress is made for gradually eliminating the use of the restraints, including details on any specialized staff training and reporting. The plan is not considered a therapeutic intervention and is adjusted depending upon the individual's progress in the ISP action plan and an evaluation by the PCP that the individual's behavior is no longer at the dangerous level that is producing serious self-injury.

(65) [(62)] Psychotropic medication--A medication that is prescribed for the treatment of symptoms of psychosis or other severe mental or emotional disorder and that is used to exercise an effect on the central nervous system to influence and modify behavior, cognition, or affective state when treating the symptoms of mental illness. Psychotropic medication, sometimes referred to as "psychoactive medication," includes the following categories of medication:

(A) antipsychotics or neuroleptics;

(B) antidepressants;

(C) agents for control of mania or depression;

(D) antianxiety agents;

(E) sedatives, hypnotics, or other sleep-promoting drugs; and

(F) psychomotor stimulants.

(66) [(63)] Registered nurse--A nurse licensed by the Texas Board of Nursing to practice professional nursing in Texas.

(67) [(64)] Registries--

(A) The Nurse Aide Registry maintained by DADS in accordance with §94.12 of this title (relating to Findings and Inquiries); and

(B) The Employee Misconduct Registry maintained by DADS in accordance with Chapter 93 of this title (relating to Employee Misconduct Registry (EMR)).

(68) [(65)] Reporter--A person who reports an allegation of abuse, neglect, or exploitation.

(69) [(66)] Restraint monitor--A designated facility employee who has received competency-based training and demonstrated proficiency in the application and assessment of restraints, who has experience working directly with individuals with developmental disabilities, and who is trained to conduct a face-to-face assessment of the individual who was restrained and the staff involved in the restraint to review the application and results of the restraint.

(70) [(67)] Retaliation--An action intended to inflict emotional or physical harm or inconvenience on a person including harassment, disciplinary action, discrimination, reprimand, threat, and criticism.

(71) [(68)] SSLC--A state supported living center.

(72) [(69)] State office mortality review--A quality assurance activity to review data related to the death of an individual to identify trends, best practices, training needs, policy changes, or facility or systemic issues that need to be addressed to improve services at facilities.

(73) [(70)] Supine restraint--Any physical or mechanical restraint that places the individual on his or her back. Supine restraint does not include when an individual is placed in a supine position as a necessary part of a medical restraint, or when an individual moves into a supine position during an incident of physical restraint, if staff immediately begin an adjustment to restore the individual to a standing, sitting, or side-lying position or, if that is not possible, immediately release the person. Supine restraint does not include persons who have freedom of movement in a hospital bed or dental chair that is at a reclined position. Supine restraint is prohibited.

(74) [(71)] THSC--Texas Health and Safety Code.

(75) [(72)] Treating physician--A physician who has provided medical or psychiatric treatment or evaluation and has an ongoing treatment relationship with an individual.

(76) [(73)] Unconfirmed--Term used to describe an allegation in which a [that DFPS determines is not supported by the] preponderance of evidence exists to prove that it did not occur.

(77) [(74)] Unfounded--Term used to describe an allegation that DFPS determines is spurious or patently without factual basis.

(78) [(75)] Unusual incident--An event or situation that seriously threatens the health, safety, or life of an individual.

(79) Victim--An individual who has been or is alleged to have been abused, neglected, or exploited.

(80) [(76)] Volunteer--A person who is not part of a visiting group, who has active, direct contact with an individual, and who does not receive compensation from DADS other than reimbursement for actual expenses.

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 March 8, 2017.

TRD-201700924

Lawrence Hornsby

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 23, 2017

For further information, please call: (512) 438-2106


SUBCHAPTER C. ABUSE, NEGLECT, AND EXPLOITATION

40 TAC §3.301, §3.305

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS.

The amendment affects Texas Government Code, §531.0055.

§3.301.Prohibition of Abuse, Neglect, and Exploitation.

[(a) Abuse, neglect, and exploitation have the meanings and classifications assigned in Chapter 711 of this title (relating to Investigations in DADS Mental Retardation and DSHS Mental Health Facilities and Related Programs).]

(a) [(b)] Abuse, neglect, and exploitation of an individual are prohibited.

(b) [(c)] If an aggressive action by an individual, including non-consensual sexual activity between individuals, occurs as a result of possible neglect, the facility must report the action as neglect.

§3.305.Completion of an Investigation.

(a) A director may not change a confirmed finding of abuse, neglect, or exploitation made by DFPS. A [However, a] director may change an unconfirmed, inconclusive, or unfounded finding of abuse, neglect, or exploitation made by DFPS to a confirmed finding. If the director changes a finding to confirmed, the confirmed finding may not be appealed to DFPS.

(b) A facility has the appeal opportunities described [and review rights specified] in Chapter 711, Subchapter J [K], of this title (relating to Appealing the Investigative Finding [Requesting a Review of Finding If You Are the Administrator or Contractor CEO]). If a director disagrees with the secondary appeal decision made by DFPS in accordance with §711.911(b) of this title (relating to How and When is the Appeal Conducted?), the director must notify the DADS Commissioner of the disagreement. If the DADS Commissioner also disagrees with the secondary appeal decision, the DADS Commissioner may request that the DFPS Commissioner reconsider the decision. The DADS Commissioner must submit a reconsideration request to the DFPS Commissioner within 60 days after the date of the secondary appeal decision. DADS may not contest the decision of the DFPS Commissioner. [The final finding is a finding that is uncontested by the facility.]

(c) A director must ensure that a [an alleged] victim, a victim's LAR, and the protection and advocacy organization, if the protection and advocacy organization is the [or an alleged] victim's designated representative, are [LAR, or primary contact is] promptly notified of:

(1) a final finding made by DFPS;

(2) the process for [method of] appealing the final finding as described in Chapter 711, Subchapter J [M], of this title [(relating to Requesting an Appeal If You Are the Reporter, Alleged Victim, Legal Guardian, or With Advocacy, Incorporated), if the final finding was not made by the director]; and

(3) the right to receive a copy of the DFPS investigative report, if requested from the director [upon request].

(d) A director must ensure that [inform] a perpetrator or alleged perpetrator is notified of a final finding made by DFPS.

(e) If DFPS makes a final finding that an employee has [is confirmed to have] abused, neglected, or exploited an individual, the director of the facility at which the employee [person] is employed must take disciplinary action against the employee in accordance with DADS operational procedures.

(1) The director must notify the employee in writing of the disciplinary action being taken, the opportunity to access a copy of the DFPS report, and of any opportunity [right] that the employee may have [under DADS operational procedures] to file a complaint or request a grievance hearing.

(2) If the employee makes a written request to the director for a copy of the investigative report and acknowledges in writing that the contents of the report must be kept confidential, the director must provide the employee with a copy of or access to the DFPS investigative report.

(f) A facility must establish and implement a mechanism to:

(1) evaluate a problematic pattern [patterns] or trend [trends] identified by a DFPS investigator or the facility; and

(2) take action to address the pattern [patterns] or trend [trends].

(g) A director must ensure that a [an alleged] victim, a victim's LAR, and the protection and advocacy organization, if the protection and advocacy organization is the [or an alleged] victim's designated representative, are [LAR, or primary contact is] promptly notifiedof:

(1) the disciplinary action taken against the perpetrator;

(2) an employee's right to request a grievance hearing to dispute disciplinary action; [and]

(3) the opportunity to be informed if an employee files a grievance; and[.]

(4) the opportunity to request a copy of the DFPS investigative report.

(h) If the [state's] protection and advocacy organization informs a director in writing that it represents a [the] victim [of confirmed abuse or neglect], the director must notify the protection and advocacy organization if a perpetrator requests a grievance hearing.

(i) If DFPS confirms abuse, neglect, or exploitation and the perpetrator is a licensed professional employed at a facility, the director of the facility at which [where ] the perpetrator is employed must ensure that the appropriate licensing board is notified of the confirmation [and documentation of the notification is maintained].

(j) If an alleged perpetrator is a licensed professional [physician, registered nurse, licensed vocational nurse, or pharmacist,] and the DFPS investigator determines that the allegation involves clinical practice rather than abuse, neglect, or exploitation, the facility at which [where] the alleged perpetrator is employed must conduct an investigation to determine if the allegation meets the licensing board's criteria for peer review. If it meets peer review criteria, the facility must conduct the peer review and ensure that the appropriate licensing board is notified of the results [in accordance with DADS operational procedures].

(k) Upon request, a director must provide a copy of a DFPS [an] investigative report to a [an alleged] victim, a victim's LAR, and the protection and advocacy organization, if the protection and advocacy organization is the [or an alleged] victim's designated representative. The identity [, LAR, or primary contact with the identities] of an individual, other than the victim, [persons served] and any other information [determined] confidential by law, must be concealed. If the designated representative is the protection and advocacy organization, the director must provide an unredacted copy of the DFPS investigative report.

(l) A facility must report a [confirmed] finding of abuse, neglect, or exploitation against an employee of the facility to CANRS.

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 March 8, 2017.

TRD-201700926

Lawrence Hornsby

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 23, 2017

For further information, please call: (512) 438-2106


CHAPTER 19. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION

The Texas Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §§19.101, 19.1301, 19.1302, 19.1304, 19.1306, 19.2701, 19.2703, 19.2704, 19.2706, and 19.2709; new §19.1300 and §§19.2750 - 19.2756; and the repeal of §19.1303, in Chapter 19, Nursing Facility Requirements for Licensure and Medicaid Certification. HHSC proposes that existing Subchapter BB in Chapter 19 be divided into three divisions, with existing §§19.2701 - 19.2703 in new Division 1, General Provisions; existing §§19.2704 - 19.2709 in new Division 2, Nursing Facility Responsibilities; and proposed new §§19.2750 - 19.2756 in new Division 3, Nursing Facility Specialized Services for Designated Residents.

BACKGROUND AND PURPOSE

The purpose of the proposed rules is to clarify the difference between rehabilitative services, which may be provided to any resident in a nursing facility, and nursing facility specialized services, which may be provided only to a nursing facility resident who is a Medicaid recipient with an intellectual or developmental disability over 21 years of age, also referred to as a "designated resident." The proposal removes all references to specialized services in Chapter 19, Subchapter N, which governs rehabilitative services, and adds requirements for nursing facility specialized services in Subchapter BB, which governs nursing facility responsibilities related to preadmission screening and resident reviews.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §19.101 adds definitions of "qualified mental health professional - community services," and "rehabilitative services." These are terms used in Subchapter N that require definitions. The proposed amendment adds "or the Health and Human Services Commission, as its successor agency" to the definition of "DADS" and "Department" to reflect the transfer of functions from DADS to HHSC. The proposed amendment also reorganizes the definitions of "medical necessity (MN)," "registered nurse (RN)," and "residential assessment instrument (RAI)" to reflect the correct alphabetical order according to the acronym.

The proposed new §19.1300 states that Subchapter N contains the requirements related to rehabilitative services provided to a resident in a nursing facility and that Subchapter BB contains the requirements related to nursing facility specialized services provided to a designated resident. This change is being made to clarify the scope of Subchapters N and BB.

The proposed amendment to §19.1301 makes editorial changes for clarity and consistency with terminology used in Chapter 19.

The proposed amendment to §19.1302 sets forth the requirements a person must meet to provide rehabilitative services to a resident.

The proposed repeal of §19.1303 removes the rule regarding specialized services in Medicaid-certified facilities from Subchapter N. Requirements for nursing facilities related to specialized services are in proposed new §§19.2750 - 19.2756 in Subchapter BB.

The proposed amendment to §19.1304 states that rehabilitative services covered by Medicaid include physical therapy, occupational therapy, and speech therapy, and requires a nursing facility to provide these services with the expectation that the resident's functioning will improve measurably in 30 days.

The proposed amendment to §19.1306 sets forth the requirements of a nursing facility related to the submission and payment of claims for rehabilitative services provided by the nursing facility and the requirements to request a fair hearing regarding any decision related to the provision of rehabilitative services.

The proposed amendment to §19.2701 explains that Subchapter BB includes the requirements a nursing facility must meet when providing nursing facility specialized services to a designated resident.

The proposed amendment to §19.2703 adds definitions of "CMWC" (customized manual wheelchair), "DME" (durable medical equipment), "HHSC," and "therapy services." The proposed amendment adds "or HHSC, as its successor agency" to the definition of "DADS" to reflect the transfer of functions from DADS to HHSC. In addition, the definition of "DADS" is amended to state that, for purposes of PASRR, HHSC is the state authority for intellectual and developmental disabilities. The amendment also makes editorial changes to the section for clarity and consistency.

The proposed amendment to §19.2704 adds the word "designated" to 19.2704(i)(8) to clarify that the facility must document annually in the Long-Term Care Online Portal (LTC Online Portal) all nursing facility specialized services, local intellectual and developmental disabilities authority specialized services, and local mental health authority (LMHA) specialized services for a designated resident.

The proposed amendment to §19.2706 makes editorial changes to the section for clarity and consistency.

The proposed amendment to §19.2709 requires a nursing facility to notify the LMHA representative of an incident or complaint involving a designated resident receiving LMHA specialized services.

The proposed new §19.2750 requires a nursing facility to request authorization from HHSC to provide a nursing facility specialized service if the service is agreed to by a designated resident's IDT or SPT. The proposed new section also requires a nursing facility to request and receive authorization from HHSC before providing a nursing facility specialized service.

The proposed new §19.2751 contains the requirements a nursing facility must ensure are met before providing specialized therapy services to a designated resident. The new section also permits a designated resident to request a fair hearing if HHSC denies authorization for a specialized therapy service.

The proposed new §19.2752 sets forth the qualifications for a person who provides nursing facility specialized therapy services to designated residents.

The proposed new §19.2753 sets forth the requirements a nursing facility must meet related to the submission and payment of claims for nursing facility specialized therapy services provided by the nursing facility.

The proposed new §19.2754 sets forth the requirements a nursing facility must meet to request prior authorization and purchase durable medical equipment or a customized manual wheelchair for a designated resident.

The proposed new §19.2755 sets forth the requirements a nursing facility must meet related to the submission and payment of claims for durable medical equipment and a customized manual power wheelchair.

The proposed new §19.2756 sets forth the administrative requirements a nursing facility must meet related to the use, maintenance, and disposition of durable medical equipment or a customized manual wheelchair for a designated resident.

FISCAL NOTE

David Cook, Deputy Chief Financial Officer, has determined that, for the first five years the proposed amendments, new sections, and repeal are in effect, enforcing or administering the amendments, new sections, and repeal does not have foreseeable implications relating to costs or revenues of state or local governments.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed amendments, new sections, and repeal will not have an adverse economic effect on small businesses or micro-businesses because these rules do not impose any new costs on nursing facilities.

PUBLIC BENEFIT AND COSTS

Mary T. Henderson, DADS Associate Commissioner for Regulatory Services, has determined that, for each year of the first five years the amendments, new sections, and repeal are in effect, the public benefit expected as a result of enforcing the amendments, new sections, and repeal is that nursing facilities will be better informed about the processes to request appropriate services for residents.

Ms. Henderson anticipates that there will not be an economic cost to persons who are required to comply with the amendments, new sections, and repeal. The amendments, new sections, and repeal will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

DADS has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Sharon Wallace at (210) 619-8292 in DADS Regulatory Services. Written comments on the proposal may be submitted to:

DADS Regulatory Service

Policy, Rules and Curriculum Unit

Department of Aging and Disability Services E-370

P.O. Box 149030

Austin, Texas 78714-9030

Written comments may also be sent to street address 701 West 51st St., Mail Code E-370, Austin, Texas 78751; faxed to (512) 438-4171; or emailed to sharon.wallace@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS last working day of the comment period; or (3) faxed or emailed by midnight on the last day of the comment period. When faxing or emailing comments, please indicate "Comments on Proposed Rule 16R02" in the subject line.

SUBCHAPTER B. DEFINITIONS

40 TAC §19.101

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; 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 amended sections affect Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §32.021.

§19.101.Definitions.

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

(1) - (27) (No change.)

(28) DADS--The Department of Aging and Disability Services or the Health and Human Services Commission, as its successor agency.

(29) - (30) (No change.)

(31) Department--The Department of Aging and Disability Services or the Health and Human Services Commission, as its successor agency.

(32) - (41) (No change.)

(42) Facility--Unless otherwise indicated, a facility is an institution that provides organized and structured nursing care and service and is subject to licensure under Texas Health and Safety Code, Chapter 242.

(A) For Medicaid, a facility is a nursing facility which meets the requirements of §1919(a) - (d) of the Social Security Act. A facility may not include any institution that is for the care and treatment of mental diseases except for services furnished to individuals age 65 and over and who are eligible as defined in Chapter 17 of this title (relating to Preadmission Screening and Resident Review (PASRR)).

(B) For Medicare and Medicaid purposes (including eligibility, coverage, certification, and payment), the "facility" is always the entity which participates in the program, whether that entity is comprised of all of, or a distinct part of, a larger institution.

(C) "Facility" is also referred to as a nursing home or nursing facility. Depending on context, these terms are used to represent the management, administrator, or other persons or groups involved in the provision of care of the resident; or to represent the physical building, which may consist of one or more floors or one or more units, or which may be a distinct part of a licensed hospital.

(43) - (76) (No change.)

[(77) Medical necessity (MN)--The determination that a recipient requires the services of licensed nurses in an institutional setting to carry out the physician's planned regimen for total care. A recipient's need for custodial care in a 24-hour institutional setting does not constitute a medical need. A group of health care professionals employed or contracted by the state Medicaid claims administrator contracted with HHSC makes individual determinations of medical necessity regarding nursing facility care. These health care professionals consist of physicians and registered nurses.]

(77) [(78)] Medical power of attorney--The legal document that designates an agent to make treatment decisions if the individual designator becomes incapable.

(78) [(79)] Medical-social care plan--See Interdisciplinary Care Plan.

(79) [(80)] Medically related condition--An organic, debilitating disease or health disorder that requires services provided in a nursing facility, under the supervision of licensed nurses.

(80) [(81)] Medication aide--A person who holds a current permit issued under the Medication Aide Training Program as described in Chapter 95 of this title (relating to Medication Aides--Program Requirements) and acts under the authority of a person who holds a current license under state law which authorizes the licensee to administer medication.

(81) [(82)] Misappropriation of funds--The taking, secretion, misapplication, deprivation, transfer, or attempted transfer to any person not entitled to receive any property, real or personal, or anything of value belonging to or under the legal control of a resident without the effective consent of the resident or other appropriate legal authority, or the taking of any action contrary to any duty imposed by federal or state law prescribing conduct relating to the custody or disposition of property of a resident.

(82) MN--Medical necessity. A determination, made by physicians and registered nurses who are employed by or contract with the state Medicaid claims administrator, that a recipient requires the services of a licensed nurse in an institutional setting to carry out a physician's planned regimen for total care. A recipient's need for custodial care in a 24-hour institutional setting does not constitute medical necessity.

(83) - (113) (No change.)

(114) Qualified mental health professional - community services--Has the meaning given in 25 TAC §412.303 (relating to Definitions).

(115) [(114)] Qualified surveyor--An employee of DADS who has completed state and federal training on the survey process and passed a federal standardized exam.

(116) [(115)] Quality assessment and assurance committee--A group of health care professionals in a facility who develop and implement appropriate action to identify and rectify substandard care and deficient facility practice.

(117) [(116)] Quality-of-care monitor--A registered nurse, pharmacist, or dietitian employed by DADS who is trained and experienced in long-term care facility regulation, standards of practice in long-term care, and evaluation of resident care, and functions independently of DADS Regulatory Services Division.

(118) RAI--Resident assessment instrument. An assessment tool used to conduct comprehensive, accurate, standardized, and reproducible assessments of each resident's functional capacity as specified by the Secretary of the U.S. Department of Health and Human Services. At a minimum, this instrument must consist of the MDS core elements specified by CMS, utilization guidelines, and Care Area Assessment process.

(119) [(117)] Recipient--Any individual residing in a Medicaid certified facility or a Medicaid certified distinct part of a facility whose daily vendor rate is paid by Medicaid.

[(118) Registered nurse (RN)--An individual currently licensed by the Texas Board of Nursing as a Registered Nurse in the State of Texas.]

(120) Rehabilitative services--Rehabilitative therapies and devices provided to help a person regain, maintain, or prevent deterioration of a skill or function that has been acquired but then lost or impaired due to illness, injury, or disabling condition. The term includes physical and occupational therapy, speech-language pathology, and psychiatric rehabilitation services.

(121) [(119)] Reimbursement methodology--The method by which HHSC determines nursing facility per diem rates.

(122) [(120)] Remodeling--The construction, removal, or relocation of walls and partitions, the construction of foundations, floors, or ceiling-roof assemblies, the expanding or altering of safety systems (including, but not limited to, sprinkler, fire alarm, and emergency systems) or the conversion of space in a facility to a different use.

(123) [(121)] Renovation--The restoration to a former better state by cleaning, repairing, or rebuilding, including, but not limited to, routine maintenance, repairs, equipment replacement, painting.

(124) [(122)] Representative payee--A person designated by the Social Security Administration to receive and disburse benefits, act in the best interest of the beneficiary, and ensure that benefits will be used according to the beneficiary's needs.

(125) [(123)] Resident--Any individual residing in a nursing facility.

[(124) Resident assessment instrument (RAI)--An assessment tool used to conduct comprehensive, accurate, standardized, and reproducible assessments of each resident's functional capacity as specified by the Secretary of the U.S. Department of Health and Human Services. At a minimum, this instrument must consist of the Minimum Data Set (MDS) core elements as specified by the Centers for Medicare & Medicaid Services (CMS); utilization guidelines; and Care Area Assessment (CAA) process.]

(126) [(125)] Resident group--A group or council of residents who meet regularly to:

(A) discuss and offer suggestions about the facility policies and procedures affecting residents' care, treatment, and quality of life;

(B) plan resident activities;

(C) participate in educational activities; or

(D) for any other purpose.

(127) [(126)] Responsible party--An individual authorized by the resident to act for him as an official delegate or agent. Responsible party is usually a family member or relative, but may be a legal guardian or other individual. Authorization may be in writing or may be given orally.

(128) [(127)] Restraint hold--

(A) A manual method, except for physical guidance or prompting of brief duration, used to restrict:

(i) free movement or normal functioning of all or a portion of a resident's body; or

(ii) normal access by a resident to a portion of the resident's body.

(B) Physical guidance or prompting of brief duration becomes a restraint if the resident resists the guidance or prompting.

(129) [(128)] Restraints (chemical)--Psychoactive drugs administered for the purposes of discipline, or convenience, and not required to treat the resident's medical symptoms.

(130) [(129)] Restraints (physical)--Any manual method, or physical or mechanical device, material or equipment attached, or adjacent to the resident's body, that the individual cannot remove easily which restricts freedom of movement or normal access to one's body. The term includes a restraint hold.

(131) RN--Registered nurse. An individual currently licensed by the Texas Board of Nursing as a registered nurse.

(132) [(130)] RN assessment coordinator--A registered nurse who signs and certifies a comprehensive assessment of a resident's needs, using the RAI, including the MDS, as specified by DADS.

(133) [(131)] RUG--Resource Utilization Group. A categorization method, consisting of 34 categories based on the MDS, that is used to determine a recipient's service and care requirements and to determine the daily rate DADS pays a nursing facility for services provided to the recipient.

(134) [(132)] Secretary--Secretary of the U.S. Department of Health and Human Services.

(135) [(133)] Services required on a regular basis--Services which are provided at fixed or recurring intervals and are needed so frequently that it would be impractical to provide the services in a home or family setting. Services required on a regular basis include continuous or periodic nursing observation, assessment, and intervention in all areas of resident care.

(136) [(134)] SNF--A skilled nursing facility or distinct part of a facility that participates in the Medicare program. SNF requirements apply when a certified facility is billing Medicare for a resident's per diem rate.

(137) [(135)] Social Security Administration--Federal agency for administration of social security benefits. Local social security administration offices take applications for Medicare, assist beneficiaries file claims, and provide information about the Medicare program.

(138) [(136)] Social worker--A qualified social worker is an individual who is licensed, or provisionally licensed, by the Texas State Board of Social Work Examiners as prescribed by the Texas Occupations Code, Chapter 505, and who has at least:

(A) a bachelor's degree in social work; or

(B) similar professional qualifications, which include a minimum educational requirement of a bachelor's degree and one year experience met by employment providing social services in a health care setting.

(139) [(137)] Standards--The minimum conditions, requirements, and criteria established in this chapter with which an institution must comply to be licensed under this chapter.

(140) [(138)] State Medicaid claims administrator--The entity under contract with HHSC to process Medicaid claims in Texas.

(141) [(139)] State plan--A formal plan for the medical assistance program, submitted to CMS, in which the State of Texas agrees to administer the program in accordance with the provisions of the State Plan, the requirements of Titles XVIII and XIX, and all applicable federal regulations and other official issuances of the U.S. Department of Health and Human Services.

(142) [(140)] State survey agency--DADS is the agency, which through contractual agreement with CMS is responsible for Title XIX (Medicaid) survey and certification of nursing facilities.

(143) [(141)] Supervising physician--A physician who assumes responsibility and legal liability for services rendered by a physician assistant (PA) and has been approved by the Texas Medical Board to supervise services rendered by specific PAs. A supervising physician may also be a physician who provides general supervision of an advanced practice registered nurse providing services in a nursing facility.

(144) [(142)] Supervision--General supervision, unless otherwise identified.

(145) [(143)] Supervision (direct)--Authoritative procedural guidance by a qualified person for the accomplishment of a function or activity within his sphere of competence. If the person being supervised does not meet assistant-level qualifications specified in this chapter and in federal regulations, the supervisor must be on the premises and directly supervising.

(146) [(144)] Supervision (general)--Authoritative procedural guidance by a qualified person for the accomplishment of a function or activity within his sphere of competence. The person being supervised must have access to the qualified person providing the supervision.

(147) [(145)] Supervision (intermittent)--Authoritative procedural guidance by a qualified person for the accomplishment of a function or activity within his sphere of competence, with initial direction and periodic inspection of the actual act of accomplishing the function or activity. The person being supervised must have access to the qualified person providing the supervision.

(148) [(146)] Texas Register--A publication of the Texas Register Publications Section of the Office of the Secretary of State that contains emergency, proposed, withdrawn, and adopted rules issued by Texas state agencies. The Texas Register was established by the Administrative Procedure and Texas Register Act of 1975.

(149) [(147)] Therapeutic diet--A diet ordered by a physician as part of treatment for a disease or clinical condition, in order to eliminate, decrease, or increase certain substances in the diet or to provide food which has been altered to make it easier for the resident to eat.

(150) [(148)] Therapy week--A seven-day period beginning the first day rehabilitation therapy or restorative nursing care is given. All subsequent therapy weeks for a particular individual will begin on that day of the week.

(151) [(149)] Threatened violation--A situation that, unless immediate steps are taken to correct, may cause injury or harm to a resident's health and safety.

(152) [(150)] Title II--Federal Old-Age, Survivors, and Disability Insurance Benefits of the Social Security Act.

(153) [(151)] Title XVI--Supplemental Security Income (SSI) of the Social Security Act.

(154) [(152)] Title XVIII--Medicare provisions of the Social Security Act.

(155) [(153)] Title XIX--Medicaid provisions of the Social Security Act.

(156) [(154)] Total health status--Includes functional status, medical care, nursing care, nutritional status, rehabilitation and restorative potential, activities potential, cognitive status, oral health status, psychosocial status, and sensory and physical impairments.

(157) [(155)] UAR--HHSC's Utilization and Assessment Review Section.

(158) [(156)] Uniform data set--See RAI (Resident Assessment Instrument) [Resident Assessment Instrument (RAI)].

(159) [(157)] Universal precautions--The use of barrier and other precautions to prevent the spread of blood-borne diseases.

(160) [(158)] Unreasonable confinement--Involuntary seclusion.

(161) [(159)] Vaccine preventable diseases--The diseases included in the most current recommendations of the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention.

(162) [(160)] Vendor payment--Payment made by DADS on a daily-rate basis for services delivered to recipients in Medicaid-certified nursing facilities. Vendor payment is based on the nursing facility's approved-to-pay claim processed by the state Medicaid claims administrator. The Nursing Facility Billing Statement, subject to adjustments and corrections, is prepared from information submitted by the nursing facility, which is currently on file in the computer system as of the billing date. Vendor payment is made at periodic intervals, but not less than once per month for services rendered during the previous billing cycle.

(163) [(161)] Working day--Any 24-hour period, Monday through Friday, excluding state and federal holidays.

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 March 13, 2017.

TRD-201701040

Lawrence Hornsby

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 23, 2017

For further information, please call: (210) 619-8292


SUBCHAPTER N. REHABILITATIVE SERVICES

40 TAC §§19.1300 - 19.1302, 19.1304, 19.1306

STATUTORY AUTHORITY

The amendments and new section are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; 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 amendments and new section affect Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code §32.021.

§19.1300.Purpose.

(a) This subchapter contains the requirements a facility must comply with to provide rehabilitative services to a resident.

(b) Subchapter BB (relating to Nursing Facility Responsibilities Related to Preadmission Screening and Resident Review (PASRR) contains the requirements a facility must comply with to provide nursing facility specialized services to a designated resident, as defined in §19.2703 of this chapter (relating to Definitions).

§19.1301.Provision of Rehabilitative Services.

(a) [Provision of services.] If rehabilitative services[, such as, but not limited to, physical therapy, speech/language pathology, occupational therapy, mental health rehabilitative services for mental illness and mental retardation] are required in a [the] resident's comprehensive care plan [of care], the facility must:

(1) provide the required services; or

(2) obtain the required services from an outside resource, in accordance with §19.1906 of this chapter [title] (relating to Use of Outside Resources)[, from a provider of specialized rehabilitative services].

(b) A [Rehabilitative services. The] facility must ensure that rehabilitative services:

(1) are provided to a resident under a comprehensive care [written] plan [of treatment] based on a [the] physician's diagnosis and orders; [,] and [that services]

(2) are documented in the resident's clinical record.

§19.1302.Qualifications.

A facility must ensure that rehabilitative [Rehabilitative ] services are provided [must be provided under the written order of a physician] by: [qualified personnel.]

[(1) A qualified therapist is:]

(1) [(A)] an individual [a speech-language pathologist] who:

(A) [(i)] is a [Texas licensed] speech-language pathologist licensed by the Texas Department of Licensing and Regulation; or

(B) [(ii)] meets the educational requirements [for license] and has accumulated, or is in the process of accumulating, the supervised professional experience [(the internship)] required to be licensed as a speech-language pathologist [for license];

(2) [(B)] an individual [audiologist] who:

(A) [(i)] is an [a Texas-licensed] audiologist licensed by the Texas Department of Licensing and Regulation; or

(B) [(ii)] meets the educational requirements [for license] and has accumulated, or is in the process of accumulating, the supervised professional experience [(the internship)] required to be licensed as an audiologist [for license];

(3) [(C)] an occupational therapist [(a qualified consultant) who is currently] licensed by the Texas Board of Occupational Therapy Examiners;

(4) [(D)] an occupational therapy assistant [who is currently] licensed by the Texas [State ] Board of Occupational Therapy Examiners;

(5) [(E)] a physical therapist [who is currently] licensed [as a physical therapist] by the Texas [State] Board of Physical Therapy Examiners; [or]

(6) [(F)] a physical therapist assistant [who is] licensed [as a physical therapist assistant] by the Texas [State] Board of Physical Therapy Examiners; or

(7) a qualified mental health professional - community services.

[(2) A physical therapy aide is a person who assists in the practice of physical therapy and whose activities require on-the-job training and on-site supervision by a physical therapist or physical therapist assistant. A physical therapy aide is not a certified corrective therapist or an adaptive or corrective physical education specialist.]

§19.1304.Rehabilitative Services in Medicaid-certified Facilities.

(a) Rehabilitative services covered by Medicaid [Services] are physical therapy services, occupational therapy services, and speech therapy services [for Medicaid nursing facility residents who are not eligible for Medicare or other insurance. The cost of therapy services for residents with Medicare or other insurance coverage or both must be billed to Medicare or other insurance or both].

(b) A facility must ensure that rehabilitative services covered by Medicaid are provided to a resident to evaluate or treat a function that has been impaired by illness or injury. [Coverage for physical therapy, occupational therapy, or speech therapy services includes evaluation and treatment of functions that have been impaired by illness.] Rehabilitative services must be provided with the expectation that the resident's functioning will improve measurably in 30 days.

§19.1306.Fee-for-Service Payment for [Specialized and] Rehabilitative Services.

(a) HHSC pays [DADS reimburses] a [nursing] facility for [specialized and] rehabilitative services provided to a Medicaid eligible resident based on fees determined [by the Health and Human Services Commission] in accordance with 1 TAC §355.313 (relating to Reimbursement Methodology for Rehabilitative and Specialized [and Rehabilitative] Services).

(b) A facility [The services] must ensure that rehabilitative services provided to a resident eligible for Medicaid are:

(1) [be] ordered by the resident's attending physician; and

(2) except as provided in subsection (c)(1) of this section, [be] pre-certified by DADS.

(c) A session is one physical, occupational, or speech therapy service provided to [performed for] one resident. HHSC pays for an [An] evaluation [is reimbursed] at the same rate as a session.

(1) HHSC pays for one [One] evaluation that is not [reimbursed without being] pre-certified by DADS.

(2) To have an additional evaluation pre-certified by DADS, a facility must submit documentation [An additional evaluation must be supported] by the attending physician [physician's documentation] that indicates the resident has a new illness or injury, or a substantive change in a pre-existing condition.

(d) A facility must submit a complete and accurate claim for services that is [must be] received by DADS within 12 months after the last day services are provided in accordance with a single pre-certification by DADS.

[(e) A claim rejected during the 12-month period through no fault of the provider may be reimbursed upon approval by DADS.]

(e) [(f)] A resident whose request for pre-certification of Medicaid rehabilitative [or specialized] services is denied may request [is entitled to] a fair hearing in accordance with 1 TAC Chapter 357, Subchapter A (relating to Uniform Fair Hearing Rules) [rules of HHSC regarding Medicaid fair hearings. A request for a fair hearing must be made to: Texas Department of Aging and Disability Services, Attn: Rehabilitative Services, P.O. Box 149030 (MC W-400), Austin, Texas 78714-9030. The request must be received by DADS within 90 days after the date the notice of action is mailed to the 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 March 13, 2017.

TRD-201701041

Lawrence Hornsby

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 23, 2017

For further information, please call: (210) 619-8292


40 TAC §19.1303

STATUTORY AUTHORITY

The repeal is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; 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 affects Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §32.021.

§19.1303.Specialized Services in Medicaid-certified Facilities.

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 March 13, 2017.

TRD-201701043

Lawrence Hornsby

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 23, 2017

For further information, please call: (210) 619-8292


SUBCHAPTER BB. NURSING FACILITY RESPONSIBILITIES RELATED TO PREADMISSION SCREENING AND RESIDENT REVIEW (PASRR)

DIVISION 1. GENERAL PROVISIONS

40 TAC §19.2701, §19.2703

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; 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 amendments affect Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §32.021.

§19.2701.Purpose.

The purpose of this subchapter is to:

(1) describe the requirements of a nursing facility related to preadmission screening and resident review (PASRR), which is a federal requirement in Code of Federal Regulations, Title 42, Part 483, Subpart C to ensure that:

(A) an individual seeking admission to a [Medicaid-certified ] nursing facility or [and] a resident of a nursing facility receives a PASRR Level I screening (PL1) to identify whether the individual or resident is suspected of having mental illness (MI), an intellectual disability (ID), or a developmental disability (DD); and

(B) an individual or resident suspected of having MI, ID, or DD receives a PASRR Level II evaluation (PE) to confirm MI, ID, or DD and, if confirmed, to evaluate whether the individual or resident needs nursing facility care and specialized services; [and]

(2) describe the requirements of a nursing facility related to a designated resident who receives service planning and transition planning; and[.]

(3) describe the requirements of a nursing facility related to nursing facility specialized services.

§19.2703.Definitions.

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

(1) - (4) (No change.)

(5) CMWC--Customized manual wheelchair. A wheelchair that consists of a manual mobility base and customized seating system and is adapted and fabricated to meet the individualized needs of a designated resident.

(6) [(5)] DADS--Department of Aging and Disability Services or HHSC, as its successor agency. For purposes of the PASRR process, HHSC [DADS] is the state authority for intellectual and developmental disabilities.

(7) [(6)] DD--Developmental disability. A disability that meets the criteria described in the definition of "persons with related conditions" in Code of Federal Regulations (CFR) Title 42, §435.1010.

(8) [(7)] Delirium--A serious disturbance in an individual's mental abilities that results in a decreased awareness of the individual's environment and confused thinking.

(9) [(8)] Designated resident--A Medicaid recipient with ID or DD who is 21 years of age or older and who is a resident.

(10) DME--Durable medical equipment. The following items, including any accessories and adaptations needed to operate or access the item:

(A) a gait trainer;

(B) a standing board;

(C) a special needs car seat or travel restraint;

(D) a specialized or treated pressure-reducing support surface mattress;

(E) a positioning wedge;

(F) a prosthetic device; and

(G) an orthotic device.

(11) [(9)] DSHS--Department of State Health Services. For purposes of the PASRR process, DSHS is the state mental health authority.

(12) [(10)] Emergency protective services--Services that are furnished by the Department of Family and Protective Services to an elderly or disabled individual who has been determined to be in a state of abuse, neglect, or exploitation.

(13) [(11)] Exempted hospital discharge--A category of nursing facility admission that occurs when a physician has certified that an individual who is being discharged from a hospital is likely to require less than 30 days of nursing facility services for the condition for which the individual was hospitalized.

(14) [(12)] Expedited admission--A category of nursing facility admission that occurs when an individual meets the criteria for one of the following categories: convalescent care, terminal illness, severe physical illness, delirium, emergency protective services, respite, or coma.

(15) HHSC--Health and Human Services Commission or its designee.

(16) [(13)] ID--Intellectual disability. Mental retardation, as described in CFR Title 42, §483.102(b)(3)(i).

(17) [(14)] IDT--Interdisciplinary team. A team consisting of:

(A) a resident with MI, ID, or DD;

(B) the resident's LAR, if any;

(C) a registered nurse from the nursing facility with responsibility for the resident;

(D) a representative of a LIDDA or LMHA, or if the resident has MI and DD or MI and ID, a representative of the LIDDA and LMHA; and

(E) other persons, as follows:

(i) a concerned person whose inclusion is requested by the resident or LAR;

(ii) a person specified by the resident or LAR, nursing facility, or LIDDA or LMHA, as applicable, who is professionally qualified or certified or licensed with special training and experience in the diagnosis, management, needs and treatment of people with MI, ID, or DD; and

(iii) a representative of the appropriate school district if the resident is school age and inclusion of the district representative is requested by the resident or LAR.

(18) [(15)] Individual--A person seeking admission to a nursing facility.

(19) [(16)] ISP--Individual service plan. A service plan developed by the service planning team for a designated resident in accordance with §17.502(2) of this title (relating to Service Planning Team (SPT) Responsibilities for a Designated [Designed] Resident).

(20) [(17)] LAR--Legally authorized representative. A person authorized by law to act on behalf of an individual or resident with regard to a matter described by this subchapter, and who may be the parent of a minor child, the legal guardian, or the surrogate decision maker.

(21) [(18)] LIDDA--Local intellectual and developmental disabilities authority. An entity designated by the executive commissioner of HHSC [the Texas Health and Human Services Commission], in accordance with Texas Health and Safety Code §533A.035 [§533.035].

(22) [(19)] LIDDA specialized services--Support services, other than nursing facility services, that are identified through the PE or resident review and may be provided to a resident who has ID or DD. LIDDA specialized services are:

(A) service coordination, which includes alternate placement assistance;

(B) employment assistance;

(C) supported employment;

(D) day habilitation;

(E) independent living skills training; and

(F) behavioral support.

(23) [(20)] LMHA--Local mental health authority. An entity designated by the executive commissioner of HHSC [the Texas Health and Human Services Commission], in accordance with Texas Health and Safety Code §533.035. For the purposes of this subchapter, LMHA includes an entity designated by DSHS [the Department of State Health Services] as the entity to perform PASRR functions.

(24) [(21)] LMHA specialized services--Support services, other than nursing facility services, that are identified through the PE or resident review and may be provided to a resident who has MI. LMHA specialized services are defined in Title 25, Texas Administrative Code (TAC), Chapter 412, Subchapter I (relating to MH Case Management), including alternate placement, and 25 TAC Chapter 416, Subchapter A (relating to Mental Health Rehabilitative Services).

(25) [(22)] LTC Online Portal--Long Term Care Online Portal. A web-based application used by Medicaid providers to submit forms, screenings, evaluations, and the long term services and supports Medicaid identification section of the MDS assessment.

(26) [(23)] MDS assessment--Minimum data set assessment. A standardized collection of demographic and clinical information that describes a resident's overall condition, which a [licensed] nursing facility in Texas is required to submit for a resident of [admitted into] the facility.

(27) [(24)] MI--Mental illness. Serious mental illness, as defined in 42 CFR §483.102(b)(1).

(28) [(25)] Nursing facility--A Medicaid-certified facility that is licensed in accordance with Texas Health and Safety Code, Chapter 242.

(29) [(26)] Nursing facility PASRR support activities--Actions a nursing facility takes in coordination with a LIDDA or LMHA to facilitate the successful provision of LIDDA specialized services or LMHA specialized services, including:

(A) arranging transportation for a designated [nursing facility] resident to participate in a LIDDA specialized service or a LMHA specialized service outside the nursing facility;

(B) sending a resident to a scheduled LIDDA specialized service or a LMHA specialized service with food and medications required by the resident; and

(C) including in the comprehensive care plan an agreement to avoid, when possible, scheduling nursing facility services at times that conflict with LIDDA specialized services or LMHA specialized services.

(30) [(27)] Nursing facility specialized services--Support services, other than nursing facility services, that are identified through the PE and may be provided to a designated resident [who has ID or DD]. Nursing facility specialized services are:

(A) [physical therapy, occupational therapy, and speech] therapy services;

(B) CMWC [customized manual wheelchair]; and

(C) DME [durable medical equipment, which consists of:]

[(i) a gait trainer;]

[(ii) a standing board;]

[(iii) a special needs car seat or travel restraint;]

[(iv) a specialized or treated pressure-reducing support surface mattress;]

[(v) a positioning wedge;]

[(vi) a prosthetic device; and]

[(vii) an orthotic device].

(31) [(28)] PASRR--Preadmission screening and resident review.

(32) [(29)] PASRR determination--A decision made by DADS, DSHS, or their designee regarding an individual's need for nursing facility specialized services, LIDDA specialized services, and LMHA specialized services, based on information in the PE; and, in accordance with Subchapter Y of this chapter (relating to Medical Necessity Determinations), whether the individual requires the level of care provided in a nursing facility. A report documenting the determination is sent to the individual and LAR.

(33) [(30)] PE--PASRR Level II evaluation. A face-to-face evaluation of an individual suspected of having MI, ID, or DD performed by a LIDDA or an LMHA to determine if the individual has MI, ID, or DD, and if so to:

(A) assess the individual's need for care in a nursing facility;

(B) assess the individual's need for nursing facility specialized services, LIDDA specialized services and LMHA specialized services; and

(C) identify alternate placement options.

(34) [(31)] PL1--PASRR Level I screening. The process of screening an individual to identify whether the individual is suspected of having MI, ID, or DD.

(35) [(32)] Pre-admission--A category of nursing facility admission from a community setting that is not an expedited admission or an exempted hospital discharge.

(36) [(33)] Referring entity--The entity that refers an individual to a nursing facility, such as a hospital, attending physician, LAR or other personal representative selected by the individual, a family member of the individual, or a representative from an emergency placement source, such as law enforcement.

(37) [(34)] Resident--An individual who resides in a [Medicaid-certified] nursing facility and receives services provided by professional nursing personnel of the facility.

(38) [(35)] Resident review--A face-to-face evaluation of a resident performed by a LIDDA or LMHA:

(A) for a resident with MI, ID, or DD who experienced a significant change in status, to:

(i) assess the resident's need for continued care in a nursing facility;

(ii) assess the resident's need for nursing facility specialized services, LIDDA specialized services and LMHA specialized services; and

(iii) identify alternate placement options; and

(B) for a resident suspected of having MI, ID, or DD, to determine whether the resident has MI, ID, or DD and, if so:

(i) assess the resident's need for continued care in a nursing facility;

(ii) assess the resident's need for nursing facility specialized services, LIDDA specialized services, and LMHA specialized services; and

(iii) identify alternate placement options.

(39) [(36)] Respite--Services provided on a short-term basis to an individual because of the absence of or the need for relief by the individual's unpaid caregiver for a period not to exceed 14 days.

(40) [(37)] Service coordination--As defined in §2.553 of this title (relating to Definitions), assistance in accessing medical, social, educational, and other appropriate services and supports that will help an individual achieve a quality of life and community participation acceptable to the person and LAR on the individual's behalf.

(41) [(38)] Service coordinator--An employee of a LIDDA who provides service coordination.

(42) [(39)] Severe physical illness--An illness resulting in ventilator dependence or diagnosis such as chronic obstructive pulmonary disease, Parkinson's disease, Huntington's disease, amyotrophic lateral sclerosis, or congestive heart failure, that results in a level of impairment so severe that the individual could not be expected to benefit from nursing facility specialized services, LIDDA specialized services or [and] LMHA specialized services.

(43) [(40)] SPT--Service planning team. A team that develops, reviews, and revises the ISP for a designated resident.

(A) The SPT always includes:

(i) the designated resident;

(ii) the designated resident's LAR, if any;

(iii) the service coordinator;

(iv) nursing facility staff familiar with the designated resident's needs;

(v) persons providing nursing facility specialized services and LIDDA specialized services for the designated resident;

(vi) a representative from a community provider, if one has been selected; and

(vii) a representative from the LMHA, if the designated resident has MI.

(B) Other participants on the SPT may include:

(i) a concerned person whose inclusion is requested by the designated resident or the LAR; and

(ii) at the discretion of the LIDDA, a person who is directly involved in the delivery of services to people with ID or DD.

(44) [(41)] Surrogate decision maker--An actively involved family member of a resident who has been identified by an IDT in accordance with Texas Health and Safety Code §313.004 and who is available and willing to consent on behalf of the resident.

(45) [(42)] Terminal illness--A medical prognosis that an individual's life expectancy is six months or less if the illness runs its normal course, which is documented by a physician's certification in the individual's medical record maintained by a nursing facility.

(46) Therapy services--Assessment and treatment to help a designated resident learn, keep, or improve skills and functioning of daily living affected by a disabling condition. Therapy services are referred to as habilitative therapy services. Therapy services are limited to:

(A) physical therapy;

(B) occupational therapy; and

(C) speech therapy.

(47) [(43)] Transition plan--A plan developed by the SPT that describes the activities, timetable, responsibilities, services, and supports involved in assisting a designated resident to transition from the nursing facility to the community.

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 March 13, 2017.

TRD-201701042

Lawrence Hornsby

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 23, 2017

For further information, please call: (210) 619-8292


DIVISION 2. NURSING FACILITY RESPONSIBILITIES

40 TAC §§19.2704, 19.2706, 19.2709

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; 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 amendments affect Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §32.021.

§19.2704.Nursing Facility Responsibilities Related to PASRR.

(a) - (h) (No change.)

(i) After an individual or resident who is determined to have MI, ID, or DD from a PE or resident review has been admitted to a nursing facility, the facility must:

(1) - (7) (No change.)

(8) for a designated resident [who is a Medicaid recipient], annually document in the LTC Online Portal all nursing facility specialized services, LIDDA specialized services, and LMHA specialized services [currently] being provided to the designated [a] resident.

§19.2706.Nursing Facility Responsibilities Related to a Designated Resident.

(a) - (b) (No change.)

(c) A nursing facility must ensure its staff and contractors who are members of a designated resident's SPT:

(1) attend and participate in the [a] designated resident's SPT meetings as scheduled and convened by the service coordinator;

(2) contribute to the development of the [a] designated resident's ISP; and

(3) assist the SPT by:

(A) monitoring all nursing facility specialized services, LIDDA specialized services and LMHA specialized services, if applicable, provided to the designated resident to ensure the designated resident's needs are being met;

(B) making timely referrals, service changes, and amendments to the ISP as needed;

(C) ensuring that the designated resident's ISP, including nursing facility specialized services, nursing facility PASRR support activities, and LIDDA specialized services, is coordinated with the nursing facility's comprehensive care plan;

(D) if the designated resident has expressed interest in community living: [developing a transition plan for a resident who has expressed interest in community living and, if no transition plan is recommended due to identified barriers, participating to identify the action the SPT will take to address concerns and remove the barriers; and]

(i) developing a transition plan for the designated resident to live in the community; or

(ii) identifying the action the SPT will take to address concerns and remove barriers to the designated resident living in the community; and

(E) reviewing and discussing the information included in the ISP and transition plan with key nursing facility staff who work with the resident.

(d) A nursing facility must allow a service coordinator access to:

(1) a designated resident on a monthly basis, or more frequently if needed; and

(2) the designated resident's clinical facility records.

§19.2709.Incident and Complaint Reporting.

In addition to reporting incidents and complaints, including abuse and neglect, to DADS as required by §19.602 of this chapter (relating to Incidents of Abuse and Neglect Reportable to the Texas Department of Aging and Disability Services (DADS) and Law Enforcement Agencies by Facilities) and §19.2006 of this chapter (relating to Reporting Incidents and Complaints), a nursing facility must report the information by making a telephone report immediately after learning of the incident or complaint:

(1) to the service coordinator, if it involves a designated resident; and

(2) to the LMHA representative, if it involves a designated resident with MI receiving LMHA specialized services.

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 March 13, 2017.

TRD-201701072

Lawrence Hornsby

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 23, 2017

For further information, please call: (210) 619-8292


DIVISION 3. NURSING FACILITY SPECIALIZED SERVICES FOR DESIGNATED RESIDENTS

40 TAC §§19.2750 - 19.2756

STATUTORY AUTHORITY

The new sections are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; 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 new sections affect Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §32.021.

§19.2750.Nursing Facility Specialized Services for Designated Residents.

(a) A nursing facility must request authorization from HHSC to provide a nursing facility specialized service to a designated resident if the service is agreed to by the designated resident's IDT in accordance with §19.2704 of this subchapter (relating to Nursing Facility Responsibilities Related to PASRR) or the designated resident's SPT in accordance with §17.502(2) of this title (relating to Service Planning Team (SPT) Responsibilities for a Designated Resident).

(b) Before providing a nursing facility specialized service, a nursing facility must request and receive authorization from HHSC through the LTC Online Portal to provide the service.

§19.2751.Requesting Authorization to Provide Therapy Services.

(a) Before requesting authorization to provide a therapy service to a designated resident, a nursing facility must ensure that:

(1) the therapy service is required by the designated resident's comprehensive care plan;

(2) the designated resident has a diagnosis relevant to the need for the therapy service;

(3) the therapy service is ordered by the designated resident's attending physician; and

(4) a therapy provider who meets the qualifications in §19.2752 of this division (relating to Qualifications of a Provider of Therapy Services) completes an assessment within 30 days before the nursing facility request for authorization to provide the therapy service.

(b) After a nursing facility submits a request for authorization to provide a therapy service to a designated resident:

(1) the nursing facility receives a written approval or denial of its request through the LTC Online Portal; and

(2) HHSC notifies the designated resident or the designated resident's LAR that the request has been approved or denied.

(c) If HHSC denies a request for authorization to provide therapy services to a designated resident, the designated resident may request a fair hearing in accordance with 1 TAC Chapter 357, Subchapter A (relating to Uniform Fair Hearing Rules), to appeal the denial.

§19.2752.Qualifications of a Provider of Therapy Services.

A nursing facility must ensure that therapy services are provided to a designated resident by:

(1) a person who:

(A) is a speech-language pathologist licensed by the Texas Department of Licensing and Regulation; or

(B) meets the educational requirements and has accumulated, or is in the process of accumulating, the supervised professional experience required to be licensed as a speech-language pathologist;

(2) an occupational therapist licensed by the Texas Board of Occupational Therapy Examiners;

(3) an occupational therapy assistant licensed by the Texas Board of Occupational Therapy Examiners;

(4) a physical therapist licensed by the Texas Board of Physical Therapy Examiners; or

(5) a physical therapist assistant licensed by the Texas Board of Physical Therapy Examiners.

§19.2753.Payment for Therapy Services.

(a) HHSC pays a nursing facility for therapy services provided to a designated resident based on fees determined in accordance with 1 TAC §355.313 (relating to Reimbursement Methodology for Rehabilitative and Specialized Services).

(b) A therapy session is one hour of therapy provided to one resident.

(c) An assessment is reimbursed at the same rate as a therapy session.

(d) An occupational therapist or physical therapist may assess a designated resident at any time to evaluate the needs of the designated resident for a therapy service, but HHSC does not pay for an assessment of a designated resident conducted within 180 days after the previous assessment of the designated resident.

(e) A nursing facility must submit a complete and accurate claim for a therapy service within 12 months after the last day of an authorization from HHSC to provide the service.

§19.2754.Requesting Authorization to Provide Durable Medical Equipment and Customized Manual Wheelchairs.

(a) To request authorization to provide DME or a CMWC to a designated resident, a nursing facility must ensure that a physical therapist or occupational therapist licensed in Texas assesses the designated resident for the DME or CMWC. If, based on the assessment, the physical or occupational therapist recommends DME or a CMWC, the nursing facility must request authorization to provide the DME or CMWC through the LTC Online Portal. The assessment required by this subsection must be completed within 30 days before the nursing facility requests authorization through the LTC Online Portal.

(b) The request for authorization to provide DME or a CMWC made through the LTC Online Portal must include:

(1) the assessment of the designated resident described in subsection (a) of this section;

(2) a statement signed by the designated resident's attending physician that the DME or CMWC is medically necessary; and

(3) detailed specifications of the DME or CMWC from a DME supplier.

(c) The documentation of the physical or occupational therapy assessment required by subsection (a) of this section must include:

(1) a diagnosis of the designated resident relevant to the need for DME or a CMWC;

(2) the specific DME or CMWC, including any adaptations recommended for the designated resident; and

(3) a description of how the DME or CMWC will meet the specific needs of the designated resident.

(d) After a nursing facility submits a request for authorization to provide DME or a CMWC to a designated resident:

(1) the nursing facility receives a written approval or denial of its request through the LTC Online Portal; and

(2) HHSC notifies the designated resident or the designated resident's LAR that the request has been approved or denied.

(e) If HHSC approves a request to provide DME or a CMWC to a designated resident, the nursing facility must order the DME or CMWC from a DME supplier within 5 business days after receiving notification of the approval through the LTC Online Portal.

(f) If HHSC denies a request to provide DME or a CMWC to a designated resident, the designated resident may request a fair hearing in accordance with 1 TAC Chapter 357, Subchapter A (relating to Uniform Fair Hearing Rules), to appeal the denial.

§19.2755.Payment for Durable Medical Equipment and Customized Manual Wheelchairs.

(a) A nursing facility must fully explore and use other sources to pay for DME or a CMWC before requesting payment from HHSC. If another funding source is available, HHSC pays no more than the remaining balance after other sources have paid.

(b) HHSC pays a nursing facility for an assessment for DME or a CMWC for a designated resident based on fees determined in accordance with 1 TAC §355.313 (relating to Reimbursement Methodology for Rehabilitative and Specialized Services).

(1) HHSC pays for a DME or CMWC assessment at the same rate as a therapy session.

(2) An occupational therapist or physical therapist may assess a designated resident at any time to evaluate the needs of the designated resident for DME or a CMWC, but HHSC does not pay for an assessment of a designated resident conducted within 180 days after the previous assessment of the designated resident.

(c) A complete and accurate claim for DME or a CMWC must be received by HHSC within 12 months after the day the DME or CMWC is purchased.

(d) A nursing facility must not submit a claim for payment for DME or a CMWC to HHSC before:

(1) an occupational therapist or physical therapist licensed in Texas verifies that the DME or CMWC meets the original specifications and the needs of the designated resident; and

(2) the nursing facility documents the verification in the LTC Online Portal.

(e) If HHSC denies a request for payment for DME or a CMWC because a nursing facility did not obtain authorization before purchasing the DME or CMWC or did not submit necessary documentation to HHSC, the facility may not charge the designated resident or family for the DME or CMWC.

§19.2756.Administrative Requirements for Durable Medical Equipment and Customized Manual Wheelchairs.

(a) A nursing facility must ensure that only the designated resident to whom DME or a CMWC belongs uses the DME or CMWC. A nursing facility must identify the DME or CMWC as the personal property of the designated resident.

(b) If the designated resident who was provided DME or a CMWC is discharged from a nursing facility, the designated resident retains the DME or CMWC.

(c) If a designated resident who was provided DME or a CMWC dies, the DME or CMWC becomes property of the designated resident's estate. As part of the estate, the DME or CMWC is subject to the Medicaid Estate Recovery Program requirements in 1 TAC Chapter 373 (relating to Medicaid Estate Recovery Program).

(d) If DME or a CMWC is donated or sold to a nursing facility by a designated resident or the personal representative of a designated resident's estate, the transaction must be documented in accordance with §19.416 of this chapter (relating to Personal Property).

(e) A modification, adjustment, or repair to DME or a CMWC required within the first six months after delivery of the DME or CMWC is the responsibility of the DME supplier. More than six months after delivery of DME or a CMWC, a nursing facility must maintain and repair all medically necessary equipment for a designated resident, including DME or a CMWC obtained under this division, as required by §19.2601(b)(8)(C) of this chapter (relating to Vendor Payment (Items and Services Included)).

(f) A nursing facility must submit a request to replace DME or a CMWC of a designated resident in the same manner as a request for the authorization to provide DME or a CMWC to a designated resident. HHSC does not approve a request to replace a CMWC made within five years after a CMWC was purchased for the designated resident, unless the request includes:

(1) an order from the designated resident's attending physician; and

(2) an assessment by an occupational therapist or physical therapist licensed in Texas, with documentation explaining why the designated resident's current CMWC no longer meets the designated resident's needs.

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 March 13, 2017.

TRD-201701067

Lawrence Hornsby

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: April 23, 2017

For further information, please call: (210) 619-8292