TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES

CHAPTER 51. MEDICALLY DEPENDENT CHILDREN PROGRAM

As required by Texas Government Code §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all of its functions were transferred to the Texas Health and Human Services Commission (HHSC) in accordance with Texas Government Code §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1 govern functions previously performed by DADS that have transferred to HHSC. Texas Government Code §531.0055, requires the Executive Commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, including rules in Title 40, Part 1. Therefore, the Executive Commissioner of HHSC proposes the repeal of rules in Texas Administrative Code (TAC) Title 40, Part 1, Chapter 51, concerning Medically Dependent Children Program.

BACKGROUND AND PURPOSE

The purpose of the proposal is to repeal obsolete rules for the Medically Dependent Children Program (MDCP), a Medicaid §1915(c) waiver program that provides medical assistance benefits to children and young adults. The rules in 40 TAC, Chapter 51 governed the delivery of MDCP under a fee-for-service payment system.

Senate Bill 7, 83rd Legislature, Regular Session, 2013, amended the Texas Government Code, Chapter 533, by adding §533.00253, STAR Kids Medicaid Managed Care Program. Section 533.00253 required HHSC to establish a STAR Kids capitated managed care program to provide medical assistance benefits to children with disabilities. Section 533.00253 also required HHSC to provide medical assistance benefits through the STAR Kids managed care program to children who were receiving benefits in MDCP.

HHSC adopted managed care rules in 1 TAC, Chapter 353, Medicaid Managed Care, including §353.1155, Medically Dependent Children Program, effective November 1, 2016, that govern MDCP services provided under a Medicaid managed care program. On November 1, 2016, HHSC transitioned children and young adults enrolled in MDCP to the Medcaid managed care program.

In addition to adopting MDCP rules in 1 TAC §353.1155, HHSC staff completed an analysis in January 2018, to ensure that all MDCP requirements under managed care were included in the Uniform Managed Care Contract, Uniform Managed Care Manual, STAR Kids Managed Care Contract, STAR Health Managed Care Contract, and the STAR Kids Handbook.

SECTION-BY-SECTION SUMMARY

The proposed repeal of §§51.101, 51.103, 51.201, 51.203, 51.207, 51.211, 51.213, 51.215, 51.217, 51.219, 51.221, 51.231, 51.233, 51.235, 51.237, 51.241, 51.243, 51.245, 51.247, 51.251, 51.301, 51.303, 51.305, 51.307, 51.309, 51.321, 51.323, 51.325, 51.327, 51.329, 51.331, 51.401, 51.403, 51.405, 51.407, 51.409, 51.411, 51.413, 51.415, 51.417, 51.418, 51.419, 51.421, 51.423, 51.431, 51.433, 51.441, 51.461, 51.463, 51.465, 51.471, 51.473, 51.475, 51.477, 51.479, 51.481, 51.483, 51.485, 51.505, 51.509, 51.511, 51.513, and 51.515 deletes obsolete rules in 40 TAC, Part 1.

FISCAL NOTE

Liz Prado, Deputy Executive Commissioner for Financial Services, has determined that for each year of the first five years that the repeals will be in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues to state or local governments.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the sections will be repealed:

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

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

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

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

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

(6) the proposed repeals will repeal existing rules;

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

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

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

Liz Prado has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with the proposed repeals. The proposed rules do not impose any additional costs on small businesses, micro-businesses, or rural communities that are required to comply with the rules.

LOCAL EMPLOYMENT IMPACT

The proposed repeals will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to the proposed repeals because the repeals do not impose a cost on regulated persons.

PUBLIC BENEFIT AND COSTS

Stephanie Muth, State Medicaid Director, has determined that for each year of the first five years the repeals are in effect, the public will benefit from the removal of obsolete rules that no longer governMDCP.

Liz Prado has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because there is no requirement to alter current business practices.

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 e-mailed to HHSRulesCoordinationOffice@hhsc.state.tx.us.

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) e-mailed before midnight on the last day of the comment period. If last day to submit comments falls on a holiday, comments must be postmarked, shipped, or e-mailed before midnight on the following business day to be accepted. When e-mailing comments, please indicate "Comments on Proposed Rule 18R006" in the subject line.

SUBCHAPTER A. INTRODUCTION

40 TAC §51.101, §51.103

STATUTORY AUTHORITY

The repeals are 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; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal Medicaid program in Texas.

The proposed repeals affect Texas Human Resources Code Chapter 32, and Texas Government Code Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§51.101.Purpose.

§51.103.Definitions.

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 July 7, 2020.

TRD-202002779

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 23, 2020

For further information, please call: (512) 438-3501


SUBCHAPTER B. ELIGIBILITY, ENROLLMENT, AND SERVICES

DIVISION 1. ELIGIBILITY

40 TAC §§51.201, 51.203, 51.207

STATUTORY AUTHORITY

The repeals are 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; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal Medicaid program in Texas.

The proposed repeals affect Texas Human Resources Code Chapter 32, and Texas Government Code Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§51.201.MDCP Interest List.

§51.203.Eligibility Requirements.

§51.207.Medical Necessity.

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 July 7, 2020.

TRD-202002781

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 23, 2020

For further information, please call: (512) 438-3501


DIVISION 2. ENROLLMENT

40 TAC §§51.211, 51.213, 51.215, 51.217, 51.219, 51.221

STATUTORY AUTHORITY

The repeals are 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; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal Medicaid program in Texas.

The proposed repeals affect Texas Human Resources Code Chapter 32, and Texas Government Code Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§51.211.Enrollment.

§51.213.Enrollment of Former Nursing Facility Residents.

§51.215.Home Visit.

§51.217.Individual Plan of Care.

§51.219.Maintaining Enrollment.

§51.221.Other Responsibilities.

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 July 7, 2020.

TRD-202002782

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 23, 2020

For further information, please call: (512) 438-3501


DIVISION 3. SERVICES

40 TAC §§51.231, 51.233, 51.235, 51.237, 51.241, 51.243, 51.245, 51.247

STATUTORY AUTHORITY

The repeals are 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; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal Medicaid program in Texas.

The proposed repeals affect Texas Human Resources Code Chapter 32, and Texas Government Code Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§51.231.Service Limitations.

§51.233.Choosing a Program Provider.

§51.235.CDS Option.

§51.237.Service Schedule Changes.

§51.241.Service Suspensions by DADS.

§51.243.Denials, Terminations, and Service Reductions.

§51.245Respite Services or Adaptive Aids Outside of the Contracted Service Delivery Area.

§51.247.HCSSA Transfer to a Different Contracted Service Delivery Area.

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 July 7, 2020.

TRD-202002783

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 23, 2020

For further information, please call: (512) 438-3501


DIVISION 4. APPEALS

40 TAC §51.251

STATUTORY AUTHORITY

The repeal 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; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal Medicaid program in Texas.

The proposed repeal affects Texas Human Resources Code Chapter 32, and Texas Government Code Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§51.251.Appeals.

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 July 7, 2020.

TRD-202002784

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 23, 2020

For further information, please call: (512) 438-3501


SUBCHAPTER C. RESPONSIBILITIES OF THE INDIVIDUAL IN SECURING ADAPTIVE AIDS AND MINOR HOME MODIFICATIONS

DIVISION 1. ADAPTIVE AIDS

40 TAC §§51.301, 51.303, 51.305, 51.307, 51.309

STATUTORY AUTHORITY

The repeals are 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; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal Medicaid program in Texas.

The proposed repeals affect Texas Human Resources Code Chapter 32, and Texas Government Code Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§51.301.Procurement.

§51.303.Specifications for Adaptive Aids.

§51.305.Bids for Adaptive Aids.

§51.307.Enhancements to Adaptive Aids.

§51.309.Vehicle Modifications and Adaptive Equipment.

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 July 7, 2020.

TRD-202002785

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 23, 2020

For further information, please call: (512) 438-3501


DIVISION 2. MINOR HOME MODIFICATIONS

40 TAC §§51.321, 51.323, 51.325, 51.327, 51,329, 51.331

STATUTORY AUTHORITY

The repeals are 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; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal Medicaid program in Texas.

The proposed repeals affect Texas Human Resources Code Chapter 32, and Texas Government Code Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§51.321.Minor Home Modifications.

§51.323.List of Minor Home Modifications.

§51.325.Specifications for Minor Home Modifications.

§51.327.Owner Approval for Minor Home Modifications.

§51.329.Bids for Minor Home Modifications.

§51.331.Enhancements to Minor Home Modifications.

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 July 7, 2020.

TRD-202002786

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 23, 2020

For further information, please call: (512) 438-3501


SUBCHAPTER D. PROVIDER REQUIREMENTS

DIVISION 1. CONTRACTING REQUIREMENTS

40 TAC §§51.401, 51.403, 51.405, 51.407, 51.409

STATUTORY AUTHORITY

The repeals are 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; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal Medicaid program in Texas.

The proposed repeals affect Texas Human Resources Code Chapter 32, and Texas Government Code Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§51.401.Contracting Requirements.

§51.403.Use of Third-Party Resources.

§51.405.Monitoring Medicaid Eligibility.

§51.407.Written Information.

§51.409.Utilization Review.

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 July 7, 2020.

TRD-202002787

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 23, 2020

For further information, please call: (512) 438-3501


DIVISION 2. SERVICE DELIVERY REQUIREMENTS FOR ALL PROVIDERS

40 TAC §§51.411, 51.413, 51.415, 51.417, 51.418, 51.419

STATUTORY AUTHORITY

The repeals are 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; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal Medicaid program in Texas.

The proposed repeals affect Texas Human Resources Code Chapter 32, and Texas Government Code Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§51.411.General Service Delivery Requirements.

§51.413.Response to Service Authorization.

§51.415.Notification to the Individual.

§51.417.Notification to the Case Manager.

§51.418.Protective Devices.

§51.419.Service Suspensions by Program Provider.

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 July 7, 2020.

TRD-202002788

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 23, 2020

For further information, please call: (512) 438-3501


DIVISION 3. SERVICE DELIVERY REQUIREMENTS FOR RESPITE AND FLEXIBLE FAMILY SUPPORT SERVICES

40 TAC §51.421, §51.423

STATUTORY AUTHORITY

The repeals are 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; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal Medicaid program in Texas.

The proposed repeals affect Texas Human Resources Code Chapter 32, and Texas Government Code Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§51.421.Requirements for Attendants Providing Respite and Flexible Family Support Services.

§51.423.Respite and Flexible Family Support 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 July 7, 2020.

TRD-202002789

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 23, 2020

For further information, please call: (512) 438-3501


DIVISION 4. SERVICE DELIVERY REQUIREMENTS FOR HOST FAMILIES

40 TAC §51.431, §51.433

STATUTORY AUTHORITY

The repeals are 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; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal Medicaid program in Texas.

The proposed repeals affect Texas Human Resources Code Chapter 32, and Texas Government Code Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§51.431.Host Family Requirements.

§51.433.Host Family Duties.

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 July 7, 2020.

TRD-202002790

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 23, 2020

For further information, please call: (512) 438-3501


DIVISION 5. SERVICE DELIVERY REQUIREMENTS FOR CONSUMER DIRECTED SERVICES

40 TAC §51.441

STATUTORY AUTHORITY

The repeal 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; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal Medicaid program in Texas.

The proposed repeal affects Texas Human Resources Code Chapter 32, and Texas Government Code Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§51.441.CDS Backup Plans.

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 July 7, 2020.

TRD-202002791

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 23, 2020

For further information, please call: (512) 438-3501


DIVISION 7. SERVICE DELIVERY REQUIREMENTS FOR ADAPTIVE AIDS

40 TAC §§51.461, 51.463, 51.465

STATUTORY AUTHORITY

The repeals are 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; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal Medicaid program in Texas.

The proposed repeals affect Texas Human Resources Code Chapter 32, and Texas Government Code Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§51.461.Delivery of Adaptive Aids.

§51.463.Follow-up After Delivery of Adaptive Aids.

§51.465.Reimbursement of Adaptive Aids.

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 July 7, 2020.

TRD-202002792

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 23, 2020

For further information, please call: (512) 438-3501


DIVISION 8. SERVICE DELIVERY REQUIREMENTS FOR MINOR HOME MODIFICATIONS

40 TAC §§51.471, 51.473, 51.475, 51.477, 51.479

STATUTORY AUTHORITY

The repeals are 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; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal Medicaid program in Texas.

The proposed repeals affect Texas Human Resources Code Chapter 32, and Texas Government Code Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§51.471.General Requirements.

§51.473.Time Frames for Completion of Minor Home Modifications.

§51.475.Inspection and Follow-Up.

§51.477.Reimbursement of Minor Home Modifications.

§51.479.Accountability for Minor Home Modifications.

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 July 7, 2020.

TRD-202002793

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 23, 2020

For further information, please call: (512) 438-3501


DIVISION 9. SERVICE DELIVERY REQUIREMENTS FOR EMPLOYEE ASSISTANCE AND SUPPORTED EMPLOYMENT

40 TAC §§51.481, 51.483, 51.485

STATUTORY AUTHORITY

The repeals are 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; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal Medicaid program in Texas.

The proposed repeals affect Texas Human Resources Code Chapter 32, and Texas Government Code Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§51.481.Employment Assistance.

§51.483.Supported Employment.

§51.485.Service Provider Qualifications for Providing Employment Assistance and Supported Employment.

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 July 7, 2020.

TRD-202002794

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 23, 2020

For further information, please call: (512) 438-3501


SUBCHAPTER E. CLAIMS PAYMENT AND DOCUMENTATION

40 TAC §§51.505, 51.509, 51.511, 51.513, 51.515

STATUTORY AUTHORITY

The repeals are 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; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal Medicaid program in Texas.

The proposed repeals affect Texas Human Resources Code Chapter 32, and Texas Government Code Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§51.505.Purchase Completion Documentation.

§51.509.Claims and Service Delivery Records.

§51.511.Billable Time and Activities.

§51.513.Non-billable Time and Activities.

§51.515.Record Keeping.

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 July 7, 2020.

TRD-202002798

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: August 23, 2020

For further information, please call: (512) 438-3501


PART 20. TEXAS WORKFORCE COMMISSION

CHAPTER 800. GENERAL ADMINISTRATION

The Texas Workforce Commission (TWC) proposes the following new sections to Chapter 800, relating to General Administration:

Subchapter A. General Provisions, §800.10

TWC proposes amendments to the following section of Chapter 800, relating to General Administration:

Subchapter A. General Provisions, §800.3

TWC proposes the following new subchapters to Chapter 800, relating to General Administration:

Subchapter H. Vendor Protests, §800.300 and §800.301

Subchapter I. Enhanced Contract Monitoring, §§800.350 - 800.352

PART I. PURPOSE, BACKGROUND, AND AUTHORITY

The purpose of the proposed Chapter 800 rule amendments is to align TWC rules with the following sections of the Texas Government Code requiring state agencies to adopt rules regarding contracting and purchasing:

--Section 2252.202 requires agencies to adopt rules to promote compliance with the requirement that any iron or steel product produced through a manufacturing process and used in the project be produced in the United States;

--Section 2155.076 requires agencies to establish, by rule, procedures for resolving vendor protests relating to purchasing issues; and

--Section 2261.253 requires agencies to establish, by rule, a procedure to identify each contract that requires enhanced contract performance monitoring.

Additionally, minor nonsubstantive revisions are required to correct the Texas Comptroller of Public Accounts (Comptroller) rule citation and to remove the obsolete Comptroller division reference related to the Historically Underutilized Business (HUB) program.

PART II. EXPLANATION OF INDIVIDUAL PROVISIONS

(Note: Minor editorial changes are made that do not change the meaning of the rules and, therefore, are not discussed in the Explanation of Individual Provisions.)

SUBCHAPTER A. GENERAL PROVISIONS

TWC proposes the following amendments to Subchapter A:

§800.3. Historically Underutilized Businesses

Section 800.3 is amended to correct the Comptroller rule citation related to the HUB program and to remove the obsolete Comptroller division reference.

§800.10. Purchase of Certain Products

New §800.10 is added to comply with Texas Government Code, Chapter 2252, Subchapter G, §2252.202, requiring that governmental entities adopt rules to promote compliance with the uniform general conditions for a project in which iron or steel products will be used must require that the bid documents provided to all bidders and the contract include a requirement that any iron or steel product produced through a manufacturing process and used in the project be produced in the United States.

The rule language states that TWC complies with the statutory requirements of Texas Government Code, Chapter 2252, Subchapter G.

SUBCHAPTER H. VENDOR PROTESTS

TWC proposes new Subchapter H:

According to Texas Government Code §2155.076, each state agency, by rule, "shall develop and adopt protest procedures for resolving vendor protests relating to purchasing issues. An agency's rules must be consistent with the [Comptroller's] rules." TWC has procedures in place, and staff has ensured that its procedures are consistent with the Comptroller's rules in 34 Texas Administrative Code §1.72. However, pursuant to §2155.076, these procedures must be in rule. New Subchapter H language reflects TWC's current procedures regarding bid protest procedures.

New §800.300 provides the following definitions related to vendor protests:

--Interested Parties--respondents in connection with the solicitation, evaluation, or award that is being protested.

--Protestant--A respondent vendor that submits a protest under TWC vendor protest procedures.

--Respondent--A vendor that submits an offer or proposal in response to a TWC solicitation.

--Solicitation--A document, such as an Invitation for Bids, Request for Offers, Request for Proposals, or Request for Qualifications that contains a request for responses from vendors to provide specified goods and services. The term also refers to the process of obtaining responses from vendors to provide specified goods and services.

--Vendor--A potential provider of goods or services to TWC.

New §800.301 describes the vendor protest procedures. The procedures state that any bid respondent who is allegedly aggrieved in connection with the solicitation, evaluation, or award of a contract by TWC may formally protest, in writing, to the TWC's director of business operations.

The protest must be received by the TWC's director of business operations within 10 working days after the protestant knows, or should have known, of the occurrence of the action that is protested.

The rules state that a protest that is not filed timely shall not be considered unless the director of business operations determines that a protest raises issues that are significant to the TWC's procurement practices or procedures.

The protest must be signed by an authorized representative for the protestant, and the signature notarized and contain the following details:

--the identifying name and number of the solicitation being protested

--identification of the specific statute or regulation that the protestant alleges has been violated

--a specific description of each act or omission alleged to have violated the statutory or regulatory provision identified above in paragraph (2)

--a precise statement of the relevant facts, including:

--sufficient documentation to establish that the protest has been timely filed; and

--a description of the resulting adverse impact to the protestant

--a statement of the argument and authorities that the protestant offers in support of the protest

--an explanation of the action the protestant is requesting from TWC

--a statement confirming that copies of the protest have been mailed or delivered to any other interested party known to the protestant.

The protestant may appeal determination of a protest to TWC's deputy executive director. The appeal must be in writing, addressed to TWC's deputy executive director, and the protest must be received by the deputy executive director no later than 10 business days after the date of receipt of the written determination issued by the director of business operations.

Finally, in order to protect the best interests of TWC or the state, the rules provide that TWC may move forward with a solicitation or contract award without delay, in spite of a timely filed protest.

SUBCHAPTER I. ENHANCED CONTRACT MONITORING

TWC proposes new Subchapter I:

Texas Government Code §2261.253(c) requires state agencies to establish, by rule, a procedure to identify contracts, prior to award, that require enhanced contract or performance monitoring and submit the information to the agency's governing body. In its Procurement and Contract Management Guide, the Comptroller has indicated that this requirement applies to "high-dollar and high-risk contracts." TWC has a procedure implementing the requirement; however, pursuant to §2261.253(c), these procedures must be in rule. New Subchapter I language reflects the current TWC procedures regarding enhanced contract monitoring.

New §800.350 describes the purpose and scope of the subchapter. The purpose of this subchapter is to implement the requirements of Texas Government Code, §2261.253(c) requiring state agencies to establish, by rule, a procedure to identify each contract that requires enhanced contract or performance monitoring.

Pursuant to Texas Government Code, §2261.253(d), this subchapter does not apply to:

--memoranda of understanding;

--interagency contracts;

--interlocal agreements; or

--contracts for which there is not a cost.

New §800.351 describes the enhanced contract monitoring policy and procedures. The rules state that:

TWC shall identify contracts requiring enhanced monitoring by evaluating the risk factors, which include:

--the complexity of the goods and services to be provided;

--the contract amount;

--the length and scope of the project supported by the contract;

--whether the services are new or have changed significantly since the last procurement of the same services;

--whether TWC has experience with the contractor;

--whether the project affects external stakeholders or is of particular interest to third parties;

--whether TWC data is accessed by the contractor; and

--any other factors TWC determines in a particular circumstance will create a level of risk to the state or TWC such that enhanced monitoring is required.

The rule states that for contracts requiring enhanced monitoring, the contractor shall report to the assigned TWC contract manager on progress toward goals or performance measure achievements, and the status of deliverables, if any, and on issues of which the contractor is aware that may create an impediment to meeting the project timeline or goals.

Enhanced monitoring may also include site visits, additional meetings with contractor staff, and inspection of documentation required by TWC to assess progress toward achieving performance requirements.

Projects deemed medium or high risk shall be monitored by the assigned contract manager and may involve additional team members such as an assigned project manager and staff from the Office of General Counsel or the Finance, Information Technology, or Regulatory Integrity Divisions, if warranted.

Texas Government Code, §2261.253 requires TWC to submit information on each contract identified for enhanced contract monitoring to TWC's three-member Commission (Commission). New §800.352 describes the reporting requirements for enhanced contractor monitoring as follows:

--The director of Procurement and Contract Services (PCS Director) shall immediately notify the Commission of any serious issue or risk that is identified with respect to a contract identified for enhanced contract monitoring.

--The contract manager shall report on the status of all contracts subject to enhanced monitoring to the PCS director quarterly.

--If any serious issues or risks are identified about a contract subject to enhanced monitoring, the PCS director will immediately notify the director of business operations and the executive director.

PART III. IMPACT STATEMENTS

Chris Nelson, Chief Financial Officer, has determined that for each year of the first five years the rules will be in effect, the following statements will apply:

There are no additional estimated costs to the state and to local governments expected as a result of enforcing or administering the rules.

There are no estimated cost reductions to the state and to local governments as a result of enforcing or administering the rules.

There are no estimated losses or increases in revenue to the state or to local governments as a result of enforcing or administering the rules.

There are no foreseeable implications relating to costs or revenue of the state or local governments as a result of enforcing or administering the rules.

There are no anticipated economic costs to individuals required to comply with the rules.

There is no anticipated adverse economic impact on small businesses, microbusinesses, or rural communities as a result of enforcing or administering the rules.

Based on the analyses required by Texas Government Code §2001.024, TWC has determined that the requirement to repeal or amend a rule, as required by Texas Government Code §2001.0045, does not apply to this rulemaking.

Takings Impact Assessment

Under Texas Government Code, §2007.002(5), "taking" means a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or the Texas Constitution, §17 or §19, Article I, or restricts or limits the owner's right to the property that would otherwise exist in the absence of the governmental action, and is the producing cause of a reduction of at least 25 percent in the market value of the affected private real property, determined by comparing the market value of the property as if the governmental action is not in effect and the market value of the property determined as if the governmental action is in effect. The Commission completed a Takings Impact Analysis for the proposed rulemaking action under Texas Government Code, §2007.043. The primary purpose of this proposed rulemaking action, as discussed elsewhere in this preamble, is to align TWC rules with the Texas Government Code requiring state agencies to adopt rules regarding contracting and purchasing.

The proposed rulemaking action will not create any additional burden on private real property. The proposed rulemaking action will not affect private real property in a manner that would require compensation to private real property owners under the United States Constitution or the Texas Constitution. The proposal also will not affect private real property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of the governmental action. Therefore, the proposed rulemaking will not cause a taking under Texas Government Code, Chapter 2007.

Government Growth Impact Statement

TWC has determined that during the first five years the proposed amendments will be in effect:

--the proposed amendments will not create or eliminate a government program;

--implementation of the proposed amendments will not require the creation or elimination of employee positions;

--implementation of the proposed amendments will not require an increase or decrease in future legislative appropriations to TWC;

--the proposed amendments will not require an increase or decrease in fees paid to TWC;

--the proposed amendments will not create a new regulation;

--the proposed amendments will not expand, limit, or eliminate an existing regulation;

--the proposed amendments will not change the number of individuals subject to the rules; and

--the proposed amendments will not positively or adversely affect the state's economy.

Economic Impact Statement and Regulatory Flexibility Analysis

TWC has determined that the proposed rules will not have an adverse economic impact on small businesses or rural communities, as the proposed rules place no requirements on small businesses or rural communities.

Mariana Vega, Director of Labor Market and Career Information, has determined that there is no significant negative impact upon employment conditions in the state as a result of the rules.

Lowell A. Keig, Director, Business Operations Division, has determined that for each year of the first five years the rules are in effect, the public benefit anticipated as a result of enforcing the proposed rules will be to ensure compliance with statutory contracting and procurement requirements.

TWC hereby certifies that the proposal has been reviewed by legal counsel and found to be within TWC's legal authority to adopt.

PART IV. COORDINATION ACTIVITIES

In the development of these rules for publication and public comment, TWC sought the involvement of Texas' 28 Local Workforce Development Boards (Boards). TWC provided the concept paper regarding these rule amendments to the Boards for consideration and review on December 10, 2019. TWC also conducted a conference call with Board executive directors and Board staff on December 20, 2019, to discuss the concept paper. During the rulemaking process, TWC considered all information gathered in order to develop rules that provide clear and concise direction to all parties involved.

Comments on the proposed rules may be submitted to TWCPolicyComments@twc.state.tx.us. Comments must be received or postmarked no later than 30 days from the date this proposal is published in the Texas Register.

SUBCHAPTER A. GENERAL PROVISIONS

40 TAC §800.3, §800.10

The rules are proposed under Texas Labor Code §301.0015 and §302.002(d), which provide TWC with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of TWC services and activities.

The proposed rules affect Title 4, Texas Labor Code, particularly Chapters 301 and 302.

§800.3.Historically Underutilized Businesses.

In accordance with Texas Government Code §2161.003, the Agency adopts by reference the rules of the Texas Comptroller of Public Accounts, found at Title 34 TAC, §§20.281 - 298, concerning the Historically Underutilized Business (HUB) program [Texas Procurement and Support Services at 34 TAC Chapter 20, Subchapter D, Division D, Historically Underutilized Businesses]. These rules were promulgated by the Texas Comptroller of Public Accounts, as required under Texas Government Code §2161.002. §800.10.Purchasing of Certain Products.

Iron and Steel Products. The Agency complies with the requirements of Texas Government Code, Chapter 2252, Subchapter G, relating to the purchase of iron or steel products made in the United States for certain governmental entity projects.

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 July 9, 2020.

TRD-202002820

Patricia Martinez

Interim Deputy Director, Workforce Program Policy

Texas Workforce Commission

Earliest possible date of adoption: August 23, 2020

For further information, please call: (512) 689-9855


SUBCHAPTER H. VENDOR PROTESTS

40 TAC §800.300, §800.301

The new rules are proposed under Texas Labor Code §301.0015 and §302.002(d), which provide TWC with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of TWC services and activities.

The proposed rules affect Title 4, Texas Labor Code, particularly Chapters 301 and 302.

§800.300.Definitions.

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

(1) Interested Parties--Respondents in connection with the Solicitation, evaluation, or award that is being protested.

(2) Protestant--A Respondent Vendor that submits a protest under the Agency Vendor Protest Procedures.

(3) Respondent--A Vendor that submits an offer or proposal in response to an Agency Solicitation.

(4) Solicitation--A document, such as an Invitation for Bids, Request for Offers, Request for Proposals, or Request for Qualifications that contains a request for responses from Vendors to provide specified goods and services. The term also refers to the process of obtaining responses from Vendors to provide specified goods and services.

(5) Vendor--A potential provider of goods or services to the Agency.

§800.301.Vendor Protest Procedures.

(a) Any Respondent who is allegedly aggrieved in connection with the Solicitation, evaluation, or award of a contract by the Agency may formally protest to the Agency's director of business operations.

(1) Such protests must be made in writing and timely received by the Agency's director of business operations.

(2) The protest must be received by the Agency's director of business operations within 10 working days after the Protestant knows, or should have known, of the occurrence of the action that is protested.

(3) The Protestant shall mail or deliver copies of the protest to: Director of Business Operations, 101 E. 15th Street, Room 316T, Austin, Texas 78778. The Protestant must also mail or deliver copies of the protest to Interested Parties known to the Protestant.

(b) A protest that is not filed timely shall not be considered unless the director of business operations determines that the protest raises issues that are significant to the Agency's procurement practices or procedures.

(c) The protest must be in writing and contain:

(1) the identifying name and number of the Solicitation being protested;

(2) identification of the specific statute or regulation that the Protestant alleges has been violated;

(3) a specific description of each act or omission alleged to have violated the statutory or regulatory provision identified above in paragraph (2) of this section;

(4) a precise statement of the relevant facts including:

(A) sufficient documentation to establish that the protest has been timely filed; and

(B)a description of the resulting adverse impact to the Protestant;

(5) a statement of the argument and authorities that the Protestant offers in support of the protest;

(6) an explanation of the action the Protestant is requesting from the Agency; and,

(7) a statement confirming that copies of the protest have been mailed or delivered to any other Interested Party known to the Protestant.

(d) The protest must be signed by an authorized representative for the Protestant and the signature notarized.

(e) The Protestant may appeal determination of a protest to the Agency's deputy executive director.

(1) The appeal filed under these procedures must be in writing, addressed to the Agency's deputy executive director; and

(2) The protest must be received by the deputy executive director no later than 10 business days after the date of receipt of the written determination issued by the director of business operations.

(f) The Agency may move forward with a Solicitation or contract award without delay, in spite of a timely filed protest, to protect the best interests of the Agency or the state.

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 July 9, 2020.

TRD-202002821

Patricia Martinez

Interim Deputy Director, Workforce Program Policy

Texas Workforce Commission

Earliest possible date of adoption: August 23, 2020

For further information, please call: (512) 689-9855


SUBCHAPTER I. ENHANCED CONTRACT MONITORING

40 TAC §§800.350 - 800.352

The new rules are proposed under Texas Labor Code §301.0015 and §302.002(d), which provide TWC with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of TWC services and activities.

The proposed rules affect Title 4, Texas Labor Code, particularly Chapters 301 and 302.

§800.350.Purpose and Scope.

(a) Purpose. The purpose of this subchapter is to implement the requirements of Texas Government Code, §2261.253(c), requiring state agencies to establish, by rule, a procedure to identify each contract that requires enhanced contract or performance monitoring.

(b) Scope. Pursuant to Texas Government Code, §2261.253(d) and (g), this subchapter does not apply to:

(1) memoranda of understanding;

(2) interagency contracts;

(3) interlocal agreements; or

(4) contracts for which there is not a cost.

§800.351.Enhanced Contract Monitoring Policy.

(a) The Agency shall identify which contracts for goods and services require enhanced monitoring by evaluating the risk factors, which include:

(1) the complexity of the goods and services to be provided;

(2) the contract amount;

(3) the length and scope of the project supported by the contract;

(4) whether the services are new or have changed significantly since the last procurement of the same services;

(5) whether the Agency has experience with the contractor;

(6) whether the project affects external stakeholders or is of particular interest to third parties;

(7) whether Agency data is accessed by the contractor; and

(8) any other factors the Agency determines in a particular circumstance will create a level of risk to the state or Agency such that enhanced monitoring is required.

(b) For contracts requiring enhanced monitoring, the contractor shall report to the assigned Agency contract manager on progress toward goals or performance measure achievements, and the status of deliverables, if any, and on any issues of which the contractor is aware that may create an impediment to meeting the project timeline or goals.

(c) Enhanced monitoring may also include site visits, additional meetings with contractor staff, and inspection of documentation required by the Agency to assess progress toward achievement of performance requirements.

(d) Projects deemed medium or high risk shall be monitored by the assigned contract manager and may involve additional team members such as an assigned project manager and staff from the Office of General Counsel or the Finance, Information Technology, or Regulatory Integrity Divisions, if warranted.

§800.352.Reporting of Enhanced Contract Monitoring.

(a) Pursuant to the Texas Government Code §2261.253, the Agency shall submit information on each contract identified for enhanced contract monitoring to the Commission.

(b) The director of Procurement and Contract Services (PCS director) shall immediately notify the Commission of any serious issue or risk that is identified with respect to a contract identified for enhanced contract monitoring.

(c) The contract manager shall report on the status of all contracts subject to enhanced monitoring to the PCS director quarterly.

(d) If any serious issues or risks are identified about a contract subject to enhanced monitoring, the PCS director will immediately notify the director of business operations and the executive director.

Filed with the Office of the Secretary of State on July 9, 2020.

TRD-202002822

Patricia Martinez

Interim Deputy Director, Workforce Program Policy

Texas Workforce Commission

Earliest possible date of adoption: August 23, 2020

For further information, please call: (512) 689-9855


CHAPTER 813. SUPPLEMENTAL NUTRITION ASSISTANCE PROGRAM EMPLOYMENT AND TRAINING

The Texas Workforce Commission (TWC) proposes amendments to the following sections of Chapter 813, relating to Supplemental Nutrition Assistance Program Employment and Training (SNAP E&T):

Subchapter B. Access to Employment and Training Activities and Support Services, §§813.11, 813.13, and 813.14

Subchapter D. Allowable Activities, §§813.31 - 813.34

PART I. PURPOSE, BACKGROUND, AND AUTHORITY

The purpose of the proposed Chapter 813 rule change is to comply with the Agriculture Improvement Act of 2018 and other federal requirements.

PART II. EXPLANATION OF INDIVIDUAL PROVISIONS

(Note: Minor editorial changes are made that do not change the meaning of the rules and, therefore, are not discussed in the Explanation of Individual Provisions.)

SUBCHAPTER B. ACCESS TO EMPLOYMENT AND TRAINING ACTIVITIES AND SUPPORT SERVICES

TWC proposes the following amendments to Subchapter B:

§813.11. Board Responsibilities Regarding Access to SNAP E&T Activities and Support Services

Amended §813.11 adds clarification regarding Local Workforce Development Board (Board) responsibilities in monitoring SNAP E&T participation.

§813.13. Good Cause for Mandatory Work Registrants Who Participate in SNAP E&T Services

Amended §813.13 adds clarification regarding actions that Boards must take when a mandatory work registrant fails to respond to an outreach notification or fails to participate in SNAP E&T activities.

§813.14. Special Provisions Regarding Sanctions for Noncooperation

Amended §813.14 amends the 120-hour monthly participation limitation to comply with 7 USC §2015(d)(4)(F)(ii).

SUBCHAPTER D. ALLOWABLE ACTIVITIES

TWC proposes the following amendments to Subchapter D:

§813.31. Activities for Mandatory Work Registrants and Exempt Recipients Who Voluntarily Participate in SNAP E&T Services

Amended §813.31 updates the activities that may be provided for SNAP E&T mandatory work registrants and exempt recipients who voluntarily participate in SNAP E&T services to comply with the requirements of the Agriculture Improvement Act of 2018.

§813.32. SNAP E&T Activities for ABAWDs

Amended §813.32 adds, as an allowable SNAP E&T activity, employment and training programs for veterans operated by the US Department of Labor or the US Department of Veterans Affairs.

§813.33. Job Retention Activities

Amended §813.33 updates Board requirements regarding the provision of job retention activities to comply with the requirements of the Agriculture Improvement Act of 2018 and offers flexibility to Boards regarding the job retention period.

§813.34. Job Retention Support Services

Amended §813.34 updates Board requirements regarding the provision of job retention support services to comply with the requirements of the Agriculture Improvement Act of 2018 and offers flexibility to Boards regarding the job retention period.

PART III. IMPACT STATEMENTS

Chris Nelson, Chief Financial Officer, has determined that for each year of the first five years the rules will be in effect, the following statements will apply:

There are no additional estimated costs to the state and to local governments expected as a result of enforcing or administering the rules.

There are no estimated cost reductions to the state and to local governments as a result of enforcing or administering the rules.

There are no estimated losses or increases in revenue to the state or to local governments as a result of enforcing or administering the rules.

There are no foreseeable implications relating to costs or revenue of the state or local governments as a result of enforcing or administering the rules.

There are no anticipated economic costs to individuals required to comply with the rules.

There is no anticipated adverse economic impact on small businesses, microbusinesses, or rural communities as a result of enforcing or administering the rules.

Based on the analyses required by Texas Government Code, §2001.024, TWC has determined that the requirement to repeal or amend a rule, as required by Texas Government Code §2001.0045, does not apply to this rulemaking.

Takings Impact Assessment

Under Texas Government Code, §2007.002(5), "taking" means a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or the Texas Constitution, §17 or §19, Article I, or restricts or limits the owner's right to the property that would otherwise exist in the absence of the governmental action, and is the producing cause of a reduction of at least 25 percent in the market value of the affected private real property, determined by comparing the market value of the property as if the governmental action is not in effect and the market value of the property determined as if the governmental action is in effect. The Commission completed a Takings Impact Analysis for the proposed rulemaking action under Texas Government Code, §2007.043. The primary purpose of this proposed rulemaking action, as discussed elsewhere in this preamble, is to comply with the Agriculture Improvement Act of 2018 and other federal requirements.

The proposed rulemaking action will not create any additional burden on private real property. The proposed rulemaking action will not affect private real property in a manner that would require compensation to private real property owners under the United States Constitution or the Texas Constitution. The proposal also will not affect private real property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of the governmental action. Therefore, the proposed rulemaking will not cause a taking under Texas Government Code, Chapter 2007.

Government Growth Impact Statement

TWC has determined that during the first five years the proposed amendments will be in effect:

--the proposed amendments will not create or eliminate a government program;

--implementation of the proposed amendments will not require the creation or elimination of employee positions;

--implementation of the proposed amendments will not require an increase or decrease in future legislative appropriations to TWC;

--the proposed amendments will not require an increase or decrease in fees paid to TWC;

--the proposed amendments will not create a new regulation;

--the proposed amendments will not expand, limit, or eliminate an existing regulation;

--the proposed amendments will not change the number of individuals subject to the rules; and

--the proposed amendments will not positively or adversely affect the state's economy.

Economic Impact Statement and Regulatory Flexibility Analysis

TWC has determined that the proposed rules will not have an adverse economic impact on small businesses or rural communities, as the proposed rules place no requirements on small businesses or rural communities.

Mariana Vega, Director of Labor Market and Career Information, has determined that there is no significant negative impact upon employment conditions in the state as a result of the rules.

Courtney Arbour, Director, Workforce Development Division, has determined that for each year of the first five years the rules are in effect, the public benefit anticipated as a result of enforcing the proposed rules will be to ensure compliance with the Agriculture Improvement Act of 2018 and other federal requirements.

PART IV. COORDINATION ACTIVITIES

In the development of these rules for publication and public comment, TWC sought the involvement of Texas' 28 Local Workforce Development Boards (Boards). TWC provided the concept paper regarding these rule amendments to the Boards for consideration and review on January 7, 2020. TWC also conducted a conference call with Board executive directors and Board staff on January 17, 2020, to discuss the concept paper. During the rulemaking process, TWC considered all information gathered in order to develop rules that provide clear and concise direction to all parties involved.

Comments on the proposed rules may be submitted to TWCPolicyComments@twc.state.tx.us. Comments must be received or postmarked no later than 30 days from the date this proposal is published in the Texas Register.

SUBCHAPTER B. ACCESS TO EMPLOYMENT AND TRAINING ACTIVITIES AND SUPPORT SERVICES

40 TAC §§813.11, 813.13, 813.14

The rules are proposed under Texas Labor Code §301.0015 and §302.002(d), which provide TWC with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of TWC services and activities.

The proposed rules affect Texas Labor Code, Title 4, particularly Chapters 301 and 302, as well as Texas Government Code, Chapter 2308.

§813.11.Board Responsibilities Regarding Access to SNAP E&T Activities and Support Services.

(a) A Board shall ensure that allowable SNAP E&T activities and support services, as set forth in Subchapters D and E, respectively, of this chapter, are provided as specified in the annual state plan of operations approved by the United States Department of Agriculture (USDA), to individuals who are:

(1) classified as the General Population; or

(2) ABAWDs.

(b) A Board shall ensure that the monitoring of SNAP E&T requirements and participant activities is ongoing and frequent, as determined appropriate by the Board, and consists of:

(1) tracking and reporting SNAP E&T participation hours;

(2) tracking and reporting support services hours;

(3) determining and arranging for any intervention needed to assist the individual in complying with SNAP E&T service requirements;

(4) monitoring and ensuring progress toward achieving the goals and objectives in the employment plan; and

(5) monitoring all other requirements.

(c) A Board shall ensure that all ABAWDs in full-service SNAP E&T counties are provided with an offer of a work activity within 10 calendar days from the date of referral from HHSC.

(d) A Board shall ensure that HHSC is notified in a timely manner if a mandatory work registrant fails to comply with participant responsibilities, as set forth in §813.12 of this subchapter.

(e) A Board shall ensure that employment and training activities are conducted in compliance with the Fair Labor Standards Act (FLSA) (29 USC [U.S.C.] §201 et seq.), as follows:

(1) The [the] amount of time per week that a mandatory work registrant or exempt recipient who voluntarily participates in SNAP E&T services may be required to participate in activities that are not exempt from minimum wage and overtime under the FLSA shall be determined by the SNAP benefits amount being divided by the minimum wage, so that the amount paid to the mandatory work registrant or exempt recipient who voluntarily participates in SNAP E&T services would be equal to or more than the amount required for payment of wages, including minimum wage and overtime. [; and]

(2) If [if] a Board provides activities that meet all the following criteria set forth in this paragraph, the activities are [activity is] considered "training" under FLSA and minimum wage and overtime are not required, as follows:

(A) The training is similar to that given in a vocational school.

(B) The training is for the benefit of the trainees.

(C) Trainees do not displace currently employed workers.

(D) Employers derive no immediate advantage from trainees' activities.

(E) Trainees are not entitled to a job after training is completed.

(F) Employers and trainees understand that trainees are not paid.

(f) A Board shall ensure that placement in work-based services does not result in the displacement of currently employed workers or impair existing contracts for services or collective bargaining agreements.

§813.13.Good Cause for Mandatory Work Registrants Who Participate in SNAP E&T Services.

(a) Good cause applies only to mandatory work registrants who are required to participate in SNAP E&T services. A Board shall notify HHSC of a SNAP E&T participant's noncompliance within seven days of the noncompliance. A Board also shall ensure that all good cause claims are forwarded to HHSC for determination before SNAP benefits are denied when mandatory work registrants state that they have a [legitimate] reason for failing to:

(1) [failing to] respond to the outreach notification; and

(2) [failing to] participate in SNAP E&T activities.

(b) For purposes of this chapter, the following are [legitimate] reasons a Board may consider when making a good cause recommendation to HHSC after a SNAP E&T participant fails [for failing] to respond to outreach notifications or fails [failing] to participate in SNAP E&T activities:

(1) Temporary [temporary] illness or incapacitation[;]

(2) Court [court] appearance[;]

(3) Caring [caring] for a physically or mentally disabled household member who requires the recipient's presence in the home[;]

(4) No [no] available transportation and the distance prohibits walking; or no available job within reasonable commuting distance, as defined by the Board[;]

(5) Distance [distance] from the home of the mandatory work registrant who participates in SNAP E&T services, to the Workforce Solutions Office, or employment service provider requires commuting time of more than two hours a day (not including taking a child to and from a child care facility), the distance prohibits walking, and there is no available transportation[;]

(6) Farmworkers [farmworkers] who are away from their permanent residence or home base, who travel to work in an agriculture or related industry during part of the year, and are under contract or similar agreement with an employer to begin work within 30 days of the date that the individual notified the Board of his or her seasonal farmwork assignment[;]

(7) An [an] inability to obtain needed child care, as defined by the Board and based on any of the following reasons:

(A) Informal [informal] child care by a relative or child care provided under other arrangements is unavailable or unsuitable, and based on, where applicable, Board policy regarding child care. Informal child care may also be determined unsuitable by the parent.[;]

(B) Eligible [eligible] formal child care providers, as defined in Chapter 809 of this title (relating to Child Care Services), are unavailable.[;]

(C) Affordable [affordable] formal child care arrangements within maximum rates established by the Board are unavailable.[; and]

(D) Formal [formal] or informal child care within a reasonable distance from home or the work site is unavailable.[;]

(8) An [an] absence of other support services necessary for participation[;]

(9) Receiving [receipt of] a job referral that results in an offer below the federal minimum wage, except when a lower wage is permissible under federal minimum wage law[;]

(10) An [an] individual or family crisis or a family circumstance that may preclude participation, including substance abuse and mental health and disability-related issues, provided that the mandatory work registrant who participates in SNAP E&T services engages in problem resolution through appropriate referrals for counseling and support services[; or]

(11) An [an] individual is a victim of family violence[.]

(c) A Board shall ensure that good cause is monitored at least on a monthly basis and results are shared with HHSC if there is a change in the circumstances surrounding the good cause exception.

§813.14.Special Provisions Regarding Sanctions for Noncooperation.

Mandatory [General population mandatory] work registrants who are scheduled to participate more than 120 hours per month may not be sanctioned for noncooperation after 120 hours have been reached, as described in the Food and Nutrition Act, 7 USC [U.S.C.] §2015(d)(4)(F)(ii). The 120 hours include hours in all SNAP E&T activities, including any hours worked for paid or unpaid compensation.

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 July 9, 2020.

TRD-202002823

Patricia Martinez

Interim Deputy Director, Workforce Program Policy

Texas Workforce Commission

Earliest possible date of adoption: August 23, 2020

For further information, please call: (512) 689-9855


SUBCHAPTER D. ALLOWABLE ACTIVITIES

40 TAC §§813.31 - 813.34

The rules are proposed under Texas Labor Code §301.0015 and §302.002(d), which provide TWC with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of TWC services and activities.

The proposed rules affect Texas Labor Code, Title 4, particularly Chapters 301 and 302, as well as Texas Government Code, Chapter 2308.

§813.31.Activities for Mandatory Work Registrants and Exempt Recipients Who Voluntarily Participate in SNAP E&T Services.

The following activities may be provided for SNAP E&T mandatory work registrants and exempt recipients who voluntarily participate in SNAP E&T services, subject to the limitations specified in §813.32 of this subchapter:

(1) Supervised job search services that shall:

(A) incorporate job readiness, job search training, directed job search, and group job search, and may include the following:

(i) Employability [job skills] assessment[;]

(ii) Counseling [counseling;]

[(iii) job search skills training;]

(iii) [(iv)] Information [information] on available jobs[;]

(iv) [(v)] Occupational [occupational] exploration, including information on local emerging and demand occupations[;]

(v) [(vi)] Interviewing [interviewing] skills and practice interviews[;]

(vi) [(vii)] Assistance [assistance] with applications and resumés [resumes;]

(vii) [(viii)] Job [job] fairs[;]

(viii) [(ix)] Life [life] skills[; or]

(ix) [(x)] Guidance [guidance] and motivation for development of positive work behaviors necessary for the labor market; and

(B) limit the number of weeks a mandatory work registrant or exempt recipient who voluntarily participates in SNAP E&T services can spend as follows:

(i) ABAWDs shall not be enrolled for more than four weeks, and the job search activity shall be provided in conjunction with the workfare activity, as described in §813.32(a)(4)(D) of this subchapter.

(ii) General Population mandatory work registrants and exempt recipients who voluntarily participate in SNAP E&T services shall not be enrolled:

(I) for more than four weeks of consecutive activity under this paragraph;

(II) for more than six weeks of total activity in a federal fiscal year.

(iii) Job search, when offered as part of other SNAP E&T activities, is allowed for more time than the limitations set forth in clauses (i) and (ii) of this subparagraph if the job search activities comprise less than half of the required time spent in other activities.

(2) Vocational [vocational] training that shall:

(A) relate to the types of jobs available in the labor market;

(B) be consistent with employment goals identified in the employment plan, when possible; and

(C) be provided only if there is an expectation that employment will be secured upon completion of the training.

(3) Nonvocational [nonvocational] education that shall increase employability, such as:

(A) enrollment and satisfactory attendance in:

(i) a secondary school; or

(ii) a course of study leading to a high school diploma or a certificate of general equivalence;

(B) basic skills and literacy;

(C) English proficiency; or

(D) postsecondary education, leading to a degree or certificate awarded by a training facility, career school or college, or other educational institution that prepares individuals for employment in current and emerging occupations that do not require baccalaureate or advanced degrees;

(4) Work [work] experience, as authorized by 7 USC [U.S.C.] §2015(d)(4)(B)(iv) and by [the Workforce Investment Act in] 20 CFR [C.F.R.] §663.200(b), for mandatory work registrants who need assistance in becoming accustomed to basic work skills[,] that shall:

(A) occur in the workplace for a limited period of time;

(B) be made in either the private for-profit, the nonprofit, or the public sectors; and

(C) be paid or unpaid;

(5) Unsubsidized [unsubsidized] employment[; or]

(6) Other [other] activities approved in the current SNAP E&T state plan of operations[.]

§813.32.SNAP E&T Activities for ABAWDs.

(a) Boards shall ensure that SNAP E&T activities for ABAWDs are limited to participating in the following:

(1) Services [services] or activities under the Trade Act of 1974, as amended by the Trade Act of 2002[;]

(2) Activities [activities] under Workforce Innovation and Opportunity Act (29 USC §3111 et seq.) [the Workforce Investment Act (29 U.S.C. §2801, et seq.);]

(3) Education [education] and training, which may include:

(A) vocational training as described in §813.31(2) of this subchapter; or

(B) nonvocational education as described in §813.31(3) of this subchapter; and

(4) Workfare [workfare] activities that shall:

(A) be designed to improve the employability of ABAWDs through actual employment experience or training, or both;

(B) be unpaid job assignments based in the public or private nonprofit sectors;

(C) have hourly requirements based on the ABAWD's monthly household SNAP allotment divided by the number of ABAWDs in the SNAP household, as provided by HHSC and then divided by the federal minimum wage; and

(D) include a four-week job search period before [prior to] placement in a workfare activity.

(b) Boards shall ensure that ABAWDs who are referred to a [Texas] Workforce Solutions Office [Center ] and subsequently become engaged in unsubsidized employment for at least 20 hours per week are not required to continue participation in SNAP E&T services because they have fulfilled their work requirement, as described in 7 USC [U.S.C.] §2015(o)(2)(A). Additionally [In addition], Boards shall ensure that HHSC is notified when ABAWDs obtain employment.

(c) An employment and training program for veterans operated by the US Department of Labor or the US Department of Veterans Affairs, as tracked by HHSC, is an allowable SNAP E&T activity for ABAWDs.

§813.33.Job Retention Activities.

(a) Boards shall offer [may provide] job retention activities:

(1) similar to the SNAP E&T activities described in §813.31(1) - (3) of this subchapter, and as specified in the annual SNAP E&T state plan of operations and any subsequent amendments approved by USDA;

(2) for a minimum of 30 days and not more than [ up to] 90 days to SNAP recipients who participated in SNAP E&T activities and obtained full-time employment; and

(3) in full-service or minimum-service counties as funding permits and as specified in paragraphs (1) and (2) of this subsection.

(b) Boards shall ensure that SNAP eligibility is verified each month that job retention activities are provided.

§813.34.Job Retention Support Services.

Boards shall offer [may provide] job retention support services for a minimum of 30 days and not more than [up to] 90 days to assist:

(1) mandatory work registrants who obtain part-time employment while participating, or after successfully participating, in SNAP E&T activities; and

(2) exempt recipients who participated in SNAP E&T activities and obtained full-time employment.

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 July 9, 2020.

TRD-202002824

Patricia Martinez

Interim Deputy Director, Workforce Program Policy

Texas Workforce Commission

Earliest possible date of adoption: August 23, 2020

For further information, please call: (512) 689-9855