TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES

CHAPTER 9. INTELLECTUAL DISABILITY SERVICES--MEDICAID STATE OPERATING AGENCY RESPONSIBILITIES

SUBCHAPTER D. HOME AND COMMUNITY-BASED SERVICES (HCS) PROGRAM AND COMMUNITY FIRST CHOICE (CFC)

40 TAC §9.194

The Executive Commissioner of the Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 40 Texas Administrative Code, Chapter 9 Intellectual Disability Services--Medicaid State Operating Agency Responsibilities, Subchapter D, new §9.194, concerning emergency rules in response to COVID-19 in order to address the situation when an individual, whose residence is a program provider's three-person or four-person residence, is living away from the residence because of concerns about COVID-19 transmission. As authorized by Texas Government Code §2001.034, the Commission may adopt an emergency rule without prior notice or hearing upon finding that an imminent peril to the public health, safety, or welfare requires adoption on fewer than 30 days' notice. Emergency rules adopted under Texas Government Code §2001.034 may be effective for not longer than 120 days and may be renewed for not longer than 60 days.

BACKGROUND AND PURPOSE

The purpose of the emergency rulemaking is to support the Governor's March 13, 2020, proclamation certifying that the COVID-19 virus poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. In this proclamation, the Governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and directed that government entities and businesses would continue providing essential services. HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of these Emergency Rule for Changes to an Individual's Residential Type and Services in the Home and Community-based Services Program.

To protect individuals and program providers in the Home and Community-based Services (HCS) Program, and the public health, safety, and welfare of the state during the COVID-19 pandemic, HHSC is adopting an emergency rule to require a program provider to take certain actions when an individual, whose residence is the program provider's three-person or four-person residence, is living away from the residence because of concerns about COVID-19 transmission. The rule requires a program provider to meet with the individual or legally authorized representative (LAR) to determine the individual's choice to return to the three-person or four-person residence or change the individual's residential type to own home/family home or host home/companion care. If the individual or LAR chooses to change the individual's residential type, the rule describes the actions the program provider must take, including revising the individual plan of care and arranging for the individual's belongings, in the three-person residence or four-person residence, to be returned to the individual. If the individual or LAR does not make a choice to return to the residence or change the residential type and wants the program provider to hold the room in the residence, the rule requires the program provider to develop a written room hold agreement between the program provider and the individual or LAR. The rule describes the actions a program provider must take before it may terminate the room hold agreement to allow a newly accepted individual to have the room, including allowing the individual who has the agreement to return to the residence within 14 days. If the individual does not return to live in the residence during the 14-day time frame, the rule requires the program provider to take certain actions including notifying the service coordinator that the individual's individual plan of care (IPC) needs to be revised to change the residential type to own home/family home or host home/companion care and arranging for the individual's belongings in the residence to be returned to the individual. If the individual or LAR does not make a choice to return to the residence or change the residential type, and does not want the program provider to hold the room in the residence, the rule prohibits the program provider from collecting amounts for room and board from the individual and requires the program provider to take certain actions including notifying the service coordinator that the individual's IPC needs to be revised to change the residential type to own home/family home or host home/companion care and arranging for the individual's belongings in the residence to be returned to the individual.

STATUTORY AUTHORITY

The emergency rulemaking is adopted under Texas Government Code §§2001.034, 531.0055, and 531.021, and Texas Human Resources Code §32.021. Texas Government Code §2001.034 authorizes the adoption of emergency rules without prior notice and hearing, if an agency finds that an imminent peril to the public health, safety, or welfare requires adoption of a rule on fewer than 30 days' notice. Texas Government Code §531.0055 authorizes the Executive Commissioner of HHSC to adopt rules and policies necessary for the operation and provision of health and human services by the health and human services system. Texas Government Code §531.021, authorizes the Executive Commissioner of HHSC to adopt rules governing the Medicaid program. Texas Human Resources Code §32.021, authorizes the Executive Commissioner of HHSC to adopt rules governing the proper and efficient operation of the Medicaid program.

The new section implements Texas Government Code §531.0055 and §531.021 and Texas Human Resources Code §32.021.

§9.194.Emergency Rule for Changes to an Individual's Residential Type and Services in the Home and Community-based Services Program.

(a) In this section "residential type" means a statement on an individual plan of care (IPC) that identifies whether an individual's residential type is:

(1) host home/companion care;

(2) own home/family home;

(3) supervised living, which is provided in a program provider's three-person residence or four-person residence; or

(4) residential support services, which is provided in a program provider's three-person residence or four-person residence.

(b) If an individual resides in a three-person residence or four-person residence and the individual lives away from the residence because of concerns about COVID-19 transmission, the program provider must:

(1) not suspend the individual's HCS Program services;

(2) continue to provide all services on the IPC, other than supervised living or residential support, as needed and without delay; and

(3) if the program provider cannot bill for residential support or supervised living under §4560(j) or §4570(i) of the HCS Program Billing Guidelines while the individual lives away from the residence, meet with the individual or legally authorized representative (LAR), which may be by telephone or telehealth, to determine the individual's or LAR's choice to:

(A) return to the individual's three-person residence or four-person residence; or

(B) change the individual's residential type on the IPC to:

(i) own home or family home, if the home is located in a local service area covered by the program provider's HCS contract; or

(ii) host home/companion care:

(I) if the program provider contracts with a qualified person who lives in the host home/companion care setting to provide host home/companion care; and

(II) if the host home/companion care setting is located in a local service area covered by the program provider's HCS contract.

(c) If the individual or LAR chooses to change the individual's residential type, as described in subsection (b)(3)(B) of this section, the program provider must:

(1) notify the service coordinator of the individual's or LAR's choice;

(2) revise the IPC, as described in §9.166(b) of this subchapter (relating to Renewal and Revision of an IPC), to reflect the individual's or LAR's choice;

(3) arrange for the individual's belongings in the three-person residence or four-person residence to be returned to the individual; and

(4) update information about the individual in the Texas Health and Human Services Commission (HHSC) data system in accordance with §9.174(a)(52)(A) of this subchapter (relating to Certification Principles: Service Delivery).

(d) If the individual or LAR does not make a choice as described in subsection (b)(3)(B) of this section, and the individual or LAR wants the program provider to keep the individual's room in the three-person residence or four-person residence available while the individual lives away from the residence because of concerns about COVID-19 transmission, the program provider must notify the service coordinator of the need to schedule a service planning team (SPT) meeting that includes the program provider. The meeting may be conducted by telephone or telehealth.

(e) A service coordinator who is notified in accordance with subsection (d) of this section must schedule an SPT meeting. During the SPT meeting, the program provider must develop a written room hold agreement between the program provider and the individual or LAR. The room hold agreement must contain the following statements:

(1) that the program provider agrees to:

(A) charge the individual only the cost of room calculated in accordance with §9.178(m) of this subchapter (relating to Certification Principles: Quality Assurance) to keep the individual's room in the three-person residence or four-person residence available;

(B) except as provided in subsection (f) of this section, keep the room in the three-person residence or four-person residence available to allow the individual to return to live in the residence; and

(2) that the individual agrees to pay the program provider the amount charged in accordance with subparagraph (A) of this paragraph.

(f) If a program provider accepts an individual who transferred from another program provider or enrolled into the HCS Program and needs the room being kept available under a room hold agreement described in subsection (e) of this section, the program provider must give the individual or LAR with whom the program provider has the room hold agreement a written notice that:

(1) the program provider has accepted an individual who needs the room;

(2) the room hold agreement will be terminated on a specified date, which must be no sooner than 14 calendar days after the date of the notice; and

(3) before the date specified in the written notice, the individual must:

(A) obtain the individual's personal belongings from the room in the residence; or

(B) return to live in the three-person residence or four-person residence.

(g) If the individual returns to live in the three-person residence or four-person residence by the date specified in the written notice described in subsection (f) of this section, the program provider:

(1) must not allow the newly accepted individual to have the room; and

(2) must, in accordance with §9.178(m) of this subchapter, collect amounts for room and board from the returning individual.

(h) If the individual does not return to live in the three-person residence or four-person residence by the date specified in the written notice described in subsection (f) of this section, the program provider must:

(1) notify the service coordinator:

(A) of the address and phone number of the individual's residence; and

(B) as described in §9.166(b)(2) of this subchapter, that the IPC needs to be revised to:

(i) change the residential type to own home/family home or host home/companion care; and

(ii) reflect the program services the individual will receive in the individual's residence;

(2) update information about the individual in the HHSC data system in accordance with §9.174(a)(52)(A) of this subchapter; and

(3) arrange for the individual's belongings in the three-person residence or four-person residence to be returned to the individual, if the individual did not obtain the belongings before the date specified in the written notice.

(i) If the individual or LAR does not make a choice as described in subsection (b)(3)(B) of this section and does not want to pay the program provider to keep the individual's room in the three-person residence or four-person residence available while the individual lives away from the residence:

(1) the program provider must not collect amounts for room and board from the individual; and

(2) the program provider must:

(A) notify the service coordinator:

(i) of the address and phone number of the individual's residence; and

(ii) as described in §9.166(b)(2) of this subchapter, that the IPC needs to be revised to:

(I) change the residential type to own home/family home or host home/companion care; and

(II) reflect the program services the individual will receive in the individual's residence;

(B) update information about the individual in the HHSC data system in accordance with §9.174(a)(52)(A) of this subchapter; and

(C) arrange for the individual's belongings in the three-person residence or four-person residence to be returned to the individual.

The agency certifies that legal counsel has reviewed the emergency adoption and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 30, 2020.

TRD-202005020

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Effective date: November 30, 2020

Expiration date: March 29, 2021

For further information, please call: (737) 704-9069