TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 213. AREA AGENCIES ON AGING

SUBCHAPTER C. IMPLEMENTATION OF THE OLDER AMERICANS ACT

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §213.101, concerning Definitions, and §213.203, concerning Nutrition Services.

BACKGROUND AND PURPOSE

The purpose of the proposal is to ensure the rules are consistent with requirements of the Older Americans Act, 42 U.S.C. §§3001-3058ff. The current rules are more restrictive than federal law. The changes will allow area agencies on aging (AAA) more flexibility when providing home delivered meal services to eligible persons. The flexibilities will reduce the need for AAAs to submit several waiver requests to HHSC for approval, thus streamlining the service delivery process. Agency specific policy is removed from the rule and included by reference. In addition, the rule is reorganized for clarity, readability, and consistency.

SECTION-BY-SECTION SUMMARY

United States Code references are added through-out the rules where the Older American Act sections are provided.

The proposed amendment to §213.101 adds a definition of "meal provider" and deletes the definition of "older individual." The term "meal provider" is used in the proposed amendment to §213.203 in place of the term "service provider." The term "older individual" is deleted because the term is no longer used in Chapter 213. The terms "DADS" and "federal fiscal year" are edited for clarity. An edit is made to paragraph (27) to update a reference. Formatting edits are made for consistency and to renumber the definitions to account for the addition and deletion of definitions.

The proposed amendment to §213.203 replaces references to "DADS" with "HHSC," replaces the term "service provider" with the term "meal provider," and replaces the term "program participant" with the term "person" throughout the section. Organizational and formatting edits are made for consistency and clarity.

The proposed amendment creates new §213.203(b) which requires nutrition services to be provided in compliance with HHSC policies established by authority of the Older Americans Act §305(a)(1)(C) (42 U.S.C. §3025(a)(1)(C)).

The proposed amendment to §213.203(b) reorganizes the subsection and creates new subsection (c). The new §213.203(c) changes the rule language to reference nutrition services, which encompasses both congregate meals and home delivered meals, rather than referencing congregate meals and home delivered meals separately. The proposed amendment also references the eligibility in the Older Americans Act for nutrition services rather than listing the specific requirements for congregate meals and home delivered meals, which will now be listed in the AAA Policies and Procedures Manual.

The proposed amendment creates new §213.203(d) which requires a AAA to ensure that a meal provider conducts a nutrition screening for a person as required by the Older Americans Act. This requirement was previously listed in the old §213.203(q) regarding nutrition education.

The proposed amendment deletes §213.203(g), and the language is used to create the new §213.203(e), concerning meal requirements. The new subsection (e) includes new language requiring a AAA to ensure that a meal provider serves meals that comply with the Older Americans Act §339(2)(A) (42 U.S.C. §3030g-21(2)(A)), concerning adjustments to meet special dietary needs of persons receiving nutrition services, and with AAA Policies and Procedures Manual policies related to menus, standard recipes, and approval of menus. New subsection (e) incorporates the requirements formerly in old §§213.203(h), (i), and (j), relating to menus, standard recipes, and modified diets.

The proposed amendment deletes §213.203(f), referencing an agency Program Instruction, and creates a new §213.203(f). The new subsection (f) specifies that a AAA must ensure that meals are provided in accordance with the Older Americans Act §331 (42 U.S.C. §3030e) and §336 (42 U.S.C. §3030f), and with AAA Policies and Procedures Manual policies related to serving fewer than five meals a week.

The proposed amendment creates new §213.203(g) which requires a AAA to ensure that a meal provider who delivers other than hot meals or delivers multiple meals at one time completes an assessment to determine that the person can safely manage the type of meals to be delivered. The completion of the assessment must comply with AAA Policies and Procedures Manual policies.

The proposed amendment makes §213.203(c), the new §213.203(h). The new §213.203(h) updates citations to the Department of State Health Services rules with which a meal provider must comply and clarifies the inspection results a meal provider must provide to the AAA.

The proposed amendment makes §213.203(d), the new §213.203(i). The new §213.203(i) adds that a AAA must ensure a meal provider complies with the Older Americans Act §311 (42 U.S.C. §3030a) regarding the Nutrition Services Incentive Program. The new §213.203(i) also clarifies the purpose of reports to HHSC.

The proposed amendment creates new §213.203(j) which requires a AAA to ensure that a meal provider complies with the Older Americans Act §315(b) (42 U.S.C. §3030c-2(b)); §213.151(l) of this chapter, relating to AAA Fiscal Responsibilities; and the AAA Policies and Procedures Manual relating to voluntary contributions.

The proposed amendment makes §213.203(e), the new §213.203(k). The new §213.203(k) clarifies the meal costs a meal provider needs to recover and how these payments must be handled.

The proposed amendment makes §213.203(m), the new §213.203(l). The new §213.203(l) adds that a AAA must ensure a meal provider complies with state and local laws for the safe and sanitary handling of food. The new subsection (l) also includes new language regarding holding time requirements for cold food.

The proposed amendment makes §213.203(p), the new §213.203(m).

The proposed amendment makes §213.203(q), the new §213.203(n). The new §213.203(n) clarifies that a AAA must ensure an eligible person is provided with nutrition education and, if appropriate, nutrition counseling and adds that nutrition education must be provided annually. The new subsection also removes the reference to nutrition screening. Nutrition screening is now covered in new §213.203(d).

The proposed amendment makes §213.203(r), the new §213.203(o).

The proposed amendment makes §213.203(s), the new §213.203(p). The new §213.203(p) replaces the term "nutrition site" with "congregate meal site."

The proposed amendment makes §213.203(t), the new §213.203(q). The new §213.203(q) requires a AAA to monitor meal providers in compliance with 40 TAC §83.19(f), relating to Direct Purchase of Services (DPS); §213.151(e) of this chapter, relating to AAA Administrative Responsibilities; and the AAA Policies and Procedures Manual. The new §213.203(q) also eliminates the ability of a provider to monitor its own food preparation sites and requires a AAA to ensure that the Department of State Health Services or the local health authority monitors food preparation sites at least annually.

The proposed amendment makes §213.203(u), the new §213.203(r). The new §213.203(r) requires a AAA to ensure that a meal provider develops a plan and written procedures for emergencies and disasters to keep food facilities and equipment available to the extent possible for people participating in the nutrition program, in accordance with the AAA Policies and Procedures Manual policies giving priority to people 60 years of age or older. The new subsection (r) also removes the requirement that the AAA ensure that the provider promptly notifies the Department of State Health Services and the AAA of a food-borne disease outbreak. The requirement to notify the Department of State Health Services is in state law. The requirement to notify the AAA is in the AAA Policies and Procedures Manual.

The proposed amendment makes §213.203(v), the new §213.203(s).

The proposed amendment creates new §213.203(t). This new subsection adopts by reference the relevant provisions of the Older Americans Act, as amended through Public Law 116-131, enacted March 25, 2020, and the AAA Policies and Procedures Manual, adopted effective January 15, 2021.

The deletion of §213.203(h), (i), (j), (k), (l), (n), and (o), relating to menus, recipes, meal packaging, delivery of home delivered meals, and training, respectively, deletes the subsections as no longer necessary because the content of the subsections has been added to the AAA Policies and Procedures Manual.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules do not have foreseeable implications relating to costs or revenues of local governments.

For each year of the first five years that the rules will be in effect, enforcing or administering the rules will result in a savings to state governments of $127 General Revenue (GR) ($161 Federal Funds (FF), $288 All Funds (AF)) for State Fiscal Year (SFY) 2021 and $468 GR ($595 FF, $1,063 AF) for each year from SFY 2022 through SFY 2025.

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

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

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

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

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

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

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

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

Trey Wood, Chief Financial Officer, has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. The rules do not require any change to current business practices.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas; do not impose a cost on regulated persons; and are necessary to receive a source of federal funds or comply with federal law.

PUBLIC BENEFITS AND COSTS

Michelle Alletto, Chief Program and Services Officer, has determined that for each year of the first five years the rules are in effect, the public benefit will be that the AAAs will have greater flexibility in working with home delivered meal providers to meet the nutritional needs of the local service area and have greater clarity about the Older Americans Act requirements for nutrition services.

Trey Wood has also determined that for each year of the first five years the rules are in effect, there will not be an economic cost to those who must comply with the rules because the proposed rules do not impose any additional costs or fees on those required to comply.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 4900 North Lamar Boulevard, Austin, Texas 78751; or emailed to HHSRulesCoordinationOffice@hhs.texas.gov.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 20R031" in the subject line.

DIVISION 1. DEFINITIONS

26 TAC §213.101

STATUTORY AUTHORITY

The amendment is authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Human Resources Code §101A.051, which provides that the Executive Commissioner of HHSC shall adopt rules regarding the administration of programs and services for older adults.

The proposed amendment implements Texas Government Code §531.0055 and Texas Human Resources Code §101A.051.

§213.101.Definitions.

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

(1) AAA--An area agency on aging (commonly referred to as a "triple A"). A public or private nonprofit agency or organization, designated by HHSC in accordance with the Older Americans Act[,] §305(a)(2)(A)[,] (42 U.S.C. §3025(a)(1)(A)) that develops and implements an area plan.

(2) Adult--A person who is 18 years of age or older.

(3) Alarm call--A signal transmitted from an electronic monitoring system to a service provider's response center indicating a program participant needs immediate assistance.

(4) Area plan--A plan developed and implemented by a AAA for its planning and service area that establishes a comprehensive and coordinated system of services in accordance with the Older Americans Act[,] §306(a) (42 U.S.C. §3026(a)).

(5) Business day--Any day except a Saturday, Sunday, or legal holiday listed in Texas Government Code[,] §662.021.

(6) Contract--A binding agreement between a AAA and a subcontractor obligating the subcontractor to take responsibility for the complete implementation and administration of a service described in this chapter, including determining which individuals are eligible to receive such a service and providing the service to such individuals.

(7) Child--A person who is under 18 years of age.

(8) Cost reimbursement--Payment of actual costs incurred for goods or services.

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

(10) Day--A calendar day, unless otherwise specified.

(11) Direct purchase--When items or services are obtained from a vendor.

(12) Disability (except when such term is used in the phrase "severe disability")--A disability attributable to mental or physical impairment, or a combination of mental and physical impairments, that results in substantial functional limitations in one or more of the following areas of major life activity:

(A) self-care;

(B) receptive and expressive language;

(C) learning;

(D) mobility;

(E) self-direction;

(F) capacity for independent living;

(G) economic self-sufficiency;

(H) cognitive functioning; and

(I) emotional adjustment.

(13) Electric monitoring system--The equipment used to allow a program participant to call an ERS vendor for assistance in the event of an emergency. Such equipment includes an alert bracelet or necklace that can be activated by the program participant and the signal box to receive the call from the program participant.

(14) ERS--Emergency response services.

(15) Federal fiscal year--A 12-month period [of time] beginning [the 1st of] October 1 and ending [through the 30th of] September 30.

(16) Fixed unit rate--A negotiated cost for a service, cost per program participant, or cost per event set forth in a contract or vendor agreement, that remains the same until the contract or vendor agreement is renegotiated, regardless of the amount of services provided, the number of program participants served, or the number of events that occur.

(17) HHSC--Health and Human Services Commission. HHSC is the sole state agency (also referred to as the "state unit on aging") designated in accordance with the Older Americans Act[,] §305(a)(1) (42 U.S.C. §3025(a)(1)).

(18) Meal provider--A service provider that provides a congregate or home delivered meal.

(19) [18] Means testing--Using a person's income and resource data.

(20) [(19)] Older Americans Act--A federal law enacted to establish and fund a comprehensive service system for people [persons] 60 years of age or older, which can be found at 42 U.S.C. §§3001-3058ff.

[(20) Older individual--A person who is 60 years of age or older.]

(21) Planning and service area--A geographical area, consisting of one or more counties, for which HHSC designates one AAA to develop and implement an area plan.

(22) Program participant--A person receiving a service described in this chapter.

(23) Responder--A person identified by the program participant or designated by the AAA who will respond to an alarm call by a program participant.

(24) Service provider--A subcontractor or a vendor.

(25) Severe disability--A severe, chronic disability attributable to mental or physical impairment, or a combination of mental and physical impairments, that:

(A) is likely to continue indefinitely; and

(B) results in substantial functional limitation in three or more of the major life activities specified in paragraph (12)(A) - (I) [(15)(A) - (I)] of this section.

(26) Staff person--Personnel, including a full-time and part-time employee or contractor, and intern but excluding a volunteer.

(27) Statewide carryover pool--An account established and managed by HHSC that contains award funds not spent by a AAA at the end of a federal fiscal year as described in §213.303(c)(1)(B) [§85.502(c)(1)(B)] of this chapter (relating to Unspent Award Funds).

(28) Subcontractor--The party with whom a AAA enters into a contract.

(29) System check--Activating the call button of an electronic monitoring system to test the system.

(30) Variable unit rate--A negotiated cost for a service, cost per program participant, or cost per event set forth in a contract or vendor agreement that may change depending on the criteria and conditions set forth in the contract or vendor agreement.

(31) Vendor agreement--A binding agreement between a AAA and a vendor obligating the vendor to provide goods or services to individuals determined eligible by the AAA for such goods or services as part of the AAA's implementation and administration of a service described in this chapter.

(32) Vendor--The party with whom a AAA enters into a vendor agreement.

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 February 4, 2021.

TRD-202100481

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: March 21, 2021

For further information, please call: (512) 206-4581


DIVISION 3. OLDER AMERICANS ACT SERVICES

26 TAC §213.203

STATUTORY AUTHORITY

The amendment is authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Human Resources Code §101A.051, which provides that the Executive Commissioner of HHSC shall adopt rules regarding the administration of programs and services for older adults.

The proposed amendment implements Texas Government Code §531.0055 and Texas Human Resources Code §101A.051.

§213.203.Nutrition Services.

(a) Purpose. This section establishes the requirements for nutrition services, a service provided under [the] Older Americans Act and funded, in whole or in part, by HHSC [DADS].

(b) Policy. Nutrition services must be provided in compliance with all HHSC policies established by authority of Older Americans Act §305(a)(1)(C) (42 U.S.C. §3025(a)(1)(C)), relating to organization and responsibilities of the State.

[(b) Eligibility.]

(c) Eligibility and assessment. [ (1)] A AAA must ensure that a person [program participant] who receives a nutrition service is [congregate meal]:

(1) [(A) is] 60 years of age or older; or

(2) eligible in accordance with Older Americans Act §339(2)(H) (42 U.S.C. §3030g-21(2)(H)) and §339(2)(I) (42 U.S.C. §3030g-21(2)(I)) and assessed for eligibility as required by Older Americans Act §339(2)(J) (42 U.S.C. §3030g-21(2)(J)) and the AAA Policies and Procedures Manual.

[(B) meets the eligibility criteria to receive a congregate meal as described in DADS Program Instruction AAA - PI 307 Nutrition Services Eligibility Requirements for Individuals Under Age 60 and Caregivers; and]

[(C) before service initiation and at least every 12 months thereafter, has had a Nutritional Risk Assessment completed by a service provider or a staff person of the AAA.]

[(2) A AAA must ensure that a program participant who receives a home-delivered meal:]

[(A) is 60 years of age or older;]

[(B) meets the eligibility criteria to receive a home-delivered meal as described in DADS Program Instruction AAA - PI 307 Nutrition Services Eligibility Requirements for Individuals Under Age 60 and Caregivers; and]

[(C) before service initiation and at least every 12 months thereafter:]

[(i) has had a Nutritional Risk Assessment completed by a service provider or staff person of the AAA; and]

[(ii) has had a functional evaluation completed by a service provider or staff person of the AAA using the data elements contained in the DADS form "Consumer Needs Evaluation," available at www.dads.state.tx.us.]

(d) Nutrition screening. A AAA must ensure a meal provider conducts nutrition screening for a person receiving a nutrition service as required by Older Americans Act §339(2)(J) (42 U.S.C. §3030g-21(2)(J)).

(e) Meal requirements. A AAA must ensure that a meal provider serves meals that comply with Older Americans Act §339(2)(A) (42 U.S.C. §3030g-21(2)(A)), relating to Dietary Guidelines for Americans, dietary reference intakes, and adjustments to meet special dietary needs of persons receiving nutrition services, and with the AAA Policies and Procedures Manual policies related to menus, standard recipes, and approval of menus.

(f) Service days. A AAA must ensure that meals are provided in accordance with Older Americans Act §331 (42 U.S.C. §3030e) and §336 (42 U.S.C. §3030f), and with the AAA Policies and Procedures Manual policies, related to serving fewer than five meals a week.

(g) Delivery of multiple meals. A AAA must ensure that a meal provider who delivers other than hot meals or delivers multiple meals at one time, completes an assessment, in compliance with the AAA Policies and Procedures Manual, to determine that the person can safely manage the type of meals to be delivered.

(h) [(c)] Facilities and food service. A AAA must ensure that a meal [service] provider:

(1) complies with 25 TAC Chapter 228 (relating to Retail Food) and 25 TAC[,] Chapter 229 (relating to Food and Drug) in training staff, and the preparation, handling, and delivery [provision] of food; and

(2) provides [the AAA] a copy of all facility inspection results [from inspections] required by state law or rule to the AAA.

(i) [(d)] Nutrition Services Incentive Program [compliance]. A AAA must ensure that a meal [service] provider:

(1) complies with the Older Americans Act[,] §311 (42 U.S.C. §3030a), relating to the Nutrition Services Incentive Program; and

(2) includes [only] eligible meals [(that is, meals delivered to program participants who meet the criteria described in subsection (b) of this section)] in reports [related ] to HHSC through which [the] Nutrition Services Incentive Program cash is calculated as earned for distribution to AAAs.

(j) Voluntary contributions. A AAA must ensure that a meal provider complies with Older Americans Act §315(b) (42 U.S.C. §3030c-2(b)), §213.151(l) of this chapter (relating to AAA Administrative Responsibilities), and the AAA Policies and Procedures Manual policies relating to voluntary contributions.

(k) [(e)] Meal cost recovery [costs]. A AAA must ensure that a meal [service] provider:

(1) posts the cost of a meal for purposes of cost recovery as described in paragraph (2) of this subsection;

(2) recovers, at a minimum, the cost of a meal that is served to a person who is not [an] eligible for a meal funded by the Older Americans Act; [as defined in DADS Program Instruction AAA - PI 307 Nutrition Services Eligibility Requirements for Individuals Under Age 60 and Caregiver]; and

(3) keeps payments for a meal served to an ineligible person [ineligible meals] separate from voluntary contributions from an eligible person [program participants].

[(f) Service days. A AAA must ensurethat a service provider:]

[(1) provides meals in accordance with the Older Americans Act, §331 and §336; and]

[(2) obtains, in accordance with DADS Program Instruction AAA - PI 300 Older Americans Act Nutrition Waiver Requests, prior approval from the AAA and DADS if service frequency is less than five days per week.]

[(g) Meal requirements. A AAA must ensure that a service provider complies with the Older Americans Act, §339(2)(A), relating to compliance with the current Dietary Guidelines for Americans and Dietary Reference Intakes.]

[(h) Menus.]

[(1) A AAA must ensure that, for each meal included on the menu and listed allowable substitutions, a service provider obtains:]

[(A) approval, in writing, from a dietitian consultant that the meal meets one third of the recommended dietary allowance as referenced in the Dietary Reference Intakes for a person 60 years of age or older and the current Dietary Guidelines for Americans as required by the Older Americans Act, §339(2)(A); and]

[(B) the written approval before the date the meal is served.]

[(2) The dietitian consultant required by paragraph (1) of this subsection must:]

[(A) be a licensed dietitian in accordance with Texas Occupations Code, Chapter 701;]

[(B) be a registered dietitian with the Commission on Dietetic Registration/American Dietetic Association; or]

[(C) have a baccalaureate degree with major studies in food and nutrition, dietetics, or food service management.]

[(3) A AAA must ensure that a service provider's planned menus provide for variety in flavor, consistency, texture, and temperature.]

[(i) Standard recipes. A AAA must ensure that a service provider plans and manages food production through the use of standardized recipes adjusted to yield the number of servings needed and to provide for consistency in quality and documented nutrient content of food prepared.]

[(j) Modified diets.]

[(1) A AAA must permit a service provider to deviate from the standard menu pattern for therapeutic medical diets as required by the participant's medical condition as documented by a physician or other health care practitioner acting within the scope of the practitioner's authority and license.]

[(2) A AAA may allow a service provider to provide therapeutic medical diets based on the service provider's ability to do so.]

[(k) Emergency or inclement weather or service frequency less than five days a week. If a service provider delivers frozen, chilled, or shelf-stable meals for emergency or inclement weather situations, or if the service provider's service frequency is less than five days per week, a AAA must ensure that the service provider:]

[(1) delivers the meals only if the program participant has sanitary and safe conditions for storing, thawing, and reheating the meals;]

[(2) determines the meals can be safely handled by the program participant or another available person if the participant is unable to safely handle the meal; and]

[(3) complies with the DADS Program Instruction AAA - PI 300 Older Americans Act Nutrition Waiver Requests.]

[(l) Meal packaging. A AAA must ensure that a service provider:]

[(1) uses supplies and carriers to package and transport hot foods separately from cold foods;]

[(2) uses enclosed meal carriers used to transport easily damaged trays or containers of hot or cold foods to protect such food from contamination, crushing, or spillage and equips the meal carriers with insulation or supplemental hot or cold sources as is necessary to maintain safe temperatures; and]

[(3) complies with the following in packaging meals:]

[(A) seals the meal container to prevent moisture loss or spillage to the outside of the container;]

[(B) maintains a safe temperature of the packaged meal throughout transport;]

[(C) uses a container designed with compartments to separate food items for visual appeal and to minimize spillage between compartments; and]

[(D) uses a container a program participant can easily open.]

(l) [(m)] Holding time. A AAA must ensure that a meal [service] provider complies with state and local laws for the safe and sanitary handling of food [does not allow more than four hours to expire from the time the cooking or reheating of food is completed and the time the food is served to the program participant].

(1) A AAA must ensure that a congregate meal provider does not allow more than four hours to expire from the time the provider:

(A) removes hot food from temperature control and the time the provider serves the hot food; or

(B) removes cold food from temperature control and the time the provider serves the cold food.

(2) A AAA must ensure that a home delivered meal provider limits the amount of time meals are in transit and does not allow more than four hours to expire from the time the provider:

(A) removes hot food from temperature control and the time the provider delivers the hot food; or

(B) removes cold food from temperature control and the time the provider delivers the cold food.

[(n) Delivery of home-delivered meals.]

[(1) A AAA must ensure that a service provider:]

[(A) delivers meals between 10:30 a.m. and 1:30 p.m.;]

[(B) keeps meals that are prepared and packaged for delivery at the following temperatures:]

[(i) 40 degrees Fahrenheit or below for cold food items; and]

[(ii) 135 degrees Fahrenheit or above for hot food items;]

[(C) does not leave meals unattended at the program participant's residence; and]

[(D) develops written procedures:]

[(i) ensuring meals are safe and sanitary for the program participant;]

[(ii) requiring follow-up with a program participant who was not available when a meal delivery was attempted on the same day the attempt was made; and]

[(iii) ensuring a significant change in a program participant's physical or mental condition or environment is reported to the service provider and appropriate action taken by the service provider on the same day the service provider is notified of the change.]

[(2) A AAA may reimburse a service provider for a maximum of two attempted but unsuccessful meal deliveries per program participant per month.]

[(3) A AAA must ensure that:]

[(A) a subcontractor is allowed to suspend the delivery of meals to a program participant if the program participant is not home to accept delivery of a meal for:]

[(i) two consecutive service days in a calendar month; or]

[(ii) three non-consecutive service days in a calendar month; and]

[(B) a vendor is allowed to request that the AAA suspend the delivery of meals to a program participant for the reasons a subcontractor may suspend delivery of a meal as described in subparagraph (A) of this paragraph.]

[(4) If a subcontractor suspends the delivery of meals to a program participant, the AAA must ensure that the subcontractor:]

[(A) documents the reason for the suspension in the program participant's record; and]

[(B) determines whether the delivery of meals to the program participant should be reinstated or terminated.]

[(5) If a AAA receives a request from a vendor to suspend the delivery of meals to a program participant, the AAA must:]

[(A) suspend the delivery of meals if the AAA verifies the basis for the request, as described in paragraph (3)(B) of this subsection;]

[(B) document the reason for the suspension in the program participant's record; and]

[(C) if the delivery of meals is suspended, determine whether the delivery of meals to the program participant should be reinstated or terminated.]

[(o) Training.]

[(1) A AAA must ensure that a service provider provides at least one hour of training to a staff person or volunteer of a service provider who is involved in the administration or provision of nutrition services before the staff person or volunteer assumes duties. The training topics must include:]

[(A) program participant confidentiality;]

[(B) procedures used in handling emergency situations involving program participants;]

[(C) sanitary methods used in serving and delivering meals;]

[(D) general knowledge and basic techniques of working with a person 60 years of age or older and a person with a disability; and]

[(E) personal hygiene.]

[(2) A AAA must ensure that a service provider provides the following training to a staff person or volunteer of a service provider who is involved only in the administration of nutrition services before the staff person or volunteer assumes duties:]

[(A) the training described in paragraph (1) of this subsection; and]

[(B) one hour of training on the content and implementation of applicable forms, rules, procedures, and policies of DADS, the AAA, and the service provider relating to the administration or provision of nutrition services.]

[(3) A AAA must ensure that a service provider provides at least two hours of training to a food service supervisor before the supervisor assumes duties. Training topics must include:]

[(A) personal hygiene;]

[(B) food storage, preparation, and service, including prevention of food-borne illness;]

[(C) equipment cleaning before, during, and after meal service;]

[(D) selection of proper utensils and equipment for transporting and serving foods;]

[(E) automatic and manual dishwashing procedures; and]

[(F) accident prevention.]

[(4) In addition to the training required by paragraph (3) of this subsection, a AAA must ensure that a service provider provides at least six hours of training to a food service supervisor no later than 30 days after the supervisor assumes duties. Training topics must include:]

[(A) practical procedures for food preparation, storage, and serving;]

[(B) portion control of food in appropriate dishes;]

[(C) use of standardized recipes;]

[(D) nutritional needs and meal pattern requirements of older program participants to be served; and]

[(E) quality control of:]

[(i) flavor;]

[(ii) consistency;]

[(iii) texture;]

[(iv) temperature; and]

[(v) appearance (including the use of garnishes).]

[(5) A AAA must ensure that the service provider's food service supervisor complies with 25 TAC §229.163 (relating to Management and Personnel).]

[(6) A AAA must ensure that a service provider documents the provision of training required by paragraphs (1) - (4) of this subsection. The documentation must include the names of the staff person or volunteer being trained and the trainer; the topics covered; and the date, time, and length of the training.]

[(7) A AAA must ensure that a service provider has an adequate number of staff persons available during the time congregate meals are provided who are certified in:]

[(A) first aid;]

[(B) cardiopulmonary resuscitation; and]

[(C) operating an automatic external defibrillator, if one is available.]

(m) [(p)] Nutrition outreach. A AAA must ensure that a meal [service] provider develops and maintains a written outreach plan giving priority to people [persons] described in the Older Americans Act[,] §306(a)(1) (42 U.S.C. §3026(a)(1)).

(n) [(q)] Nutrition education. In accordance with the Older Americans Act[,] §339(2)(J) (42 U.S.C. §3030g-21(2)(J)), a AAA must ensure that an eligible person [a program participant] is provided with [nutrition screening,] nutrition education annually[,] and, if appropriate, nutrition [assessment and] counseling.

(o) [(r)] Political activity. A AAA must ensure that a meal [service] provider does not:

(1) use a congregate meal site for political campaigning except in those instances where a representative from each political party running in the campaign is given an equal opportunity to participate; or

(2) distribute political materials at a congregate meal site.

(p) [(s)] Religious activities and prayer. A AAA must ensure that a meal [service] provider does not:

(1) allow a prayer or other religious activity to be officially sponsored, led, or organized by a [nutrition-site] staff person of a congregate meal site; or

(2) prohibit a person [program participant ] from praying silently or audibly at a congregate meal site if the person [program participant] so chooses.

(q) [(t)] Monitoring.

(1) A AAA must monitor[:] meal providers in compliance with 40 TAC §83.19(f), §213.151(e) of this chapter, and the AAA Policies and Procedures Manual.

[(A) a subcontractor providing nutrition services in accordance with §85.201(e) of this chapter (relating to AAA Administrative Responsibilities); and]

[(B) a vendor providing nutrition services in accordance with §83.19(f) of this title (relating to Direct Purchase of Service (DPS)).]

(2) A AAA must ensure that the Department of State Health Services or the local health authority, as applicable, [or the service provider] monitors a food preparation site, at least annually[, to determine whether the requirements of this section have been followed].

(3) A AAA must ensure that the meal [service ] provider submits the written report of the food preparation site [such] monitoring to the AAA.

(r) [(u)] Emergencies [Weather-related emergencies, fire,] and [other] disasters. A AAA must ensure that a meal [service] provider develops a plan and written procedures for emergencies and disasters to keep food, [:]

[(1) keeps] facilities, and equipment available to the extent possible, for people participating in the nutrition services program, in accordance with the AAA Policies and Procedures Manual policies giving [for emergencies and disasters, in accordance with a plan developed by the service provider, that gives] priority to people [program participants] 60 years of age or older.[;]

[(2) adopts written procedures ensuring the availability of food for program participants during emergencies and disasters; and]

[(3) promptly notifies the Department of State Health Services and the AAA of a food-borne disease outbreak, (that is, two or more cases of a similar illness resulting from the ingestion of a common food).]

(s) [(v)] Subcontracting by a meal [service] provider. A AAA must require a meal [service] provider to obtain written approval from the AAA before the meal [service] provider contracts with any entity for meal preparation or service delivery.

(t) Adoption by reference. HHSC adopts by reference as requirements for nutrition services the following:

(1) OAA §§306(a)(1) (42 U.S.C. §3026(a)(1)), 311(42 U.S.C. §3030a), 315(b) (42 U.S.C. §3030c-2(b)), 331(42 U.S.C. §3030e), 336(42 U.S.C. §3030f, and 339(2) (42 U.S.C. §3030g-21(2)), as amended through Public Law 116-131, enacted March 25, 2020; and

(2) the AAA Policies and Procedures Manual, adopted effective January 15, 2021.

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 February 4, 2021.

TRD-202100482

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: March 21, 2021

For further information, please call: (512) 206-4581