Adopted Rules Title 26

TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 565. HOME AND COMMUNITY-BASED (HCS) PROGRAM AND COMMUNITY FIRST CHOICE (CFC) CERTIFICATION STANDARDS

The Executive Commissioner of Health and Human Services Commission (HHSC) adopts in Texas Administrative Code (TAC) Title 26, Part 1, Chapter 565, Home and Community-based Program (HCS) Certification Standards, new §§565.2, 565.3, 565.5, 565.7, 565.9, 565.11, 565.13, 565.15, 565.17, 565.19, 565.21, 565.23, 565.25, 565.27, 565.29, 565.31, 565.33, 565.35, 565.37, 565.39, 565.41, 565.43, 565.47, and 565.49.

New §§565.3, 565.5, 565.9, 565.11, 565.13, 565.15, 565.17, 565.19, 565.21, 565.23, 565.25, 565.27, 565.31, 565.35, 565.37, and 565.49 are adopted with changes to the proposed text as published in the February 17, 2023, issue of the Texas Register (48 TexReg 789). These rules will be republished. These rules contain references to §565.45, Administrative Penalties, which is being administratively transferred from 40 TAC §9.181, effective the same day these rules are adopted.

New §§565.2, 565.7, 565.29, 565.33, 565.39, 565.41, 565.43, and 565.47 are adopted without changes to the proposed text as published in the February 17, 2023, issue of the Texas Register (48 TexReg 789). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The new sections are necessary to describe the regulatory certification standards for HCS Medicaid waiver program providers.

The rules describe certification standards regarding service delivery; rights of individuals; requirements related to abuse, neglect, and exploitation; staff member and service provider requirements; and quality assurance. The rules also include requirements from the program's residential checklist along with new requirements for emergency preparedness, fire drills, and evacuation drills in all residential types in the HCS program. The rules set forth recommendations for increased oversight of HCS host home/companion care homes, clarify restraint and seclusion requirements, and add language for restricting the use of enclosed beds. The rules also modify HHSC surveyor requirements to allow for survey flexibility as the HCS waiver program evolves.

COMMENTS

The 31-day comment period ended March 20, 2023. During this period, HHSC received 57 comments regarding the proposed rules from three commenters: Every Child, Inc., Private Provider's Alliance of Texas, and Provider's Alliance for Community Services of Texas. A summary of comments and HHSC's responses follows.

Comment: A commenter recommended removing the term "emotional well-being" from the definition of "actual harm" because the term is subjective, not defined, and has been used broadly to establish harm.

Response: The concept of an individual's emotional well-being as it relates to harm is consistently used across Long-Term Care Regulation programs, including similar community settings for individuals diagnosed with intellectual disabilities or related conditions. Therefore, HHSC declines to make changes to this definition without further dialogue with stakeholders, advocates, and providers.

Comment: A commenter said it is unclear why there is "emotional injury" in the definition of neglect in §565.3(76) but not in the definition of neglect in the Texas Department of Family and Protective Services (DFPS) rules. The commenter asked what the definition of emotional injury is and stated that the definition of neglect should match that of DFPS's definition and include DFPS's definition for emotional harm, which is "a highly unpleasant mental reaction with obvious signs of distress, such as anguish, grief, fright, humiliation, or fury." The commenter added that emotional harm is innate in living and associating with other people, whether a roommate or direct care staff, but does not constitute neglect or abuse. The commenter recommended, at a minimum, adding a definition for "emotional harm," and that the outcome must be tied to abuse or neglect.

Response: HHSC declines to make changes in response to these comments because the language "emotional injury" is used in the HHSC definition of neglect located in 26 TAC §711.19, How is neglect defined? HHSC is the investigative authority for HCS abuse, neglect, and exploitation allegations, and as such, this term is consistent for the definition of neglect in both HCS and investigative rules.

Comment: A commenter stated that the definition of relative in §565.3(99) is different from what HHSC is using for "relative host home."

Response: HHSC declines to make changes in response to this comment because proposed §565.3(99) is used in context with HHSC Billing Requirements.

Comment: A commenter recommended deleting §565.7(c)(1)(B) unless there is a statutory or policy requirement that this web-based training be completed. Behavioral support services must be provided by a behavior therapist; therefore, it is unclear to the commenter what HHSC's web-based training would offer that a trained professional did not already gain from educational and hands-on experience.

Response: HHSC declines to make changes in response to these comments because proposed §565.7(c)(1)(B) is, in part, a federal Medicaid requirement as outlined in the CMS HCS waiver application.

Comment: A commenter stated that §565.9(b)(5), under Program Provider Requirements, may be the appropriate place to add a requirement that providers ensure the licenses of their licensed contractors are in good standing.

Response: HHSC declines to make changes in response to this comment. Proposed §565.7(c)(2)(A), under Staff Member and Service Provider Requirements, is specific to licensed contractors and requires a program provider to develop and implement policy and procedures to ensure a service provider continues to be licensed and in good standing with its licensing board during the provision of services to an individual.

Comment: Regarding §565.9(c), a commenter stated that licensure checks of service providers should be made upon employment (and upon expiration of the license) and that automobile insurance should only be required for the period of the policy, because it is unclear what an "ongoing verification process" would be other than requiring staff to inform providers if their insurance is canceled or changes, or if their license is revoked.

Response: HHSC agrees with the commenter and revised proposed §565.9(c) to require a program provider to develop and implement policy and procedures to ensure only staff members and service providers with a valid driver's license and insurance transport individuals.

Comment: A commenter recommended adding "unless" to the beginning of §565.9(e)(2).

Response: Changing the language of proposed §565.9(e)(2) in response to the requestor's suggestion would change the meaning of the rule so that the rule would no longer align with HHSC's intent. Therefore, HHSC declines to make the commenter's proposed change. However, proposed §565.9(e)(2) was revised to clarify the intent of the subsection.

Comment: A commenter recommended the following revision to §565.9(g)(2)(B) related to financial impropriety toward an individual: "unauthorized purchase of goods not requested for the individual and cannot be used by the individual or not intended for the individual's use." The commenter stated that it is subjective for regulators to independently determine what an individual can or cannot use and that this regulation does not require consideration of the intent of the purchase.

Response: HHSC agrees with the commenter and revised proposed §565.9(g)(2)(B) to clarify that financial impropriety toward an individual includes "any purchase of goods that are not requested for the individual, cannot be used by the individual, or are not intended for the individual's use."

Comment: A commenter stated, "After an approved individual plan of care (IPC) has been signed and shared with the provider, and unless the person has chosen a group home and the provider does not have a group home vacancy, or the provider cannot ensure the health and safety of the individual. Providers may offer vacancies in other contract areas to satisfy this requirement."

Response: In accordance with the federal CMS HCS waiver application, the program provider must accommodate the individual's preference regarding where to live. HHSC declines to make changes in response to this comment because the requested revision is inconsistent with the federal HCS waiver application and would require additional analysis and a change to the federal HCS waiver application.

Comment: In reference to §565.11(a)(4), a commenter recommended changing the wording to, "facilitate modifications to a service plan if requested by the individual and maintain service plans to be responsive to individual's personal goals, conditions, abilities, and needs as identified by the service planning team and identified in the person directed plan."

Response: HHSC declines to make changes in response to these comments. To ensure an individual has access to services in a timely manner, the service provider is responsible for maintaining a system of delivering services that is responsive to the individual's personal goals, condition, abilities, and needs as identified by the service planning team, in accordance with proposed §565.11(a)(4).

Comment: A commenter stated that §565.11(a)(6) requires providers go through the process of obtaining a behavior plan to restrict an individual's rights. The commentor would like to have a separate process in rule for restricting an individual's right, when applicable, since not all restrictions of rights are linked to an undesirable behavior, and creating a behavior plan involves multiple entities, not just the program provider.

Response: An individual receiving HCS services has all the same rights and responsibilities exercised by people without disabilities unless otherwise justified. The federal CMS HCS waiver application requires that providers justify any restriction of rights and that those restrictions only occur with adequate discussion and documentation through the person-centered planning process. Therefore, HHSC declines to make changes in response to this without further dialogue with stakeholders, advocates, and providers.

Comment: A commenter expressed concerns regarding §565.11(a)(10), which requires providers to initiate an individual plan of care (IPC) renewal although they have no control over local intellectual and developmental disability authority availability, HHSC timeliness, or the families of the individuals. The commenter stated that providers already go without payment if the renewal deadline is missed. The commenter argued that if failure to meet this renewal requirement could result in an administrative penalty, the requirement should not also be a part of HHSC Billing Requirement nor a contract requirement under Medicaid and Children's Health Insurance Program.

Response: The IPC document provides information related to the care and needs of the individual. This document must be up to date to ensure the health and safety of the individual. Medicaid program rules located in 26 TAC §263.302 provide a 60-day window for renewals, which gives program providers sufficient time to initiate IPC renewals. Therefore, HHSC declines to makes changes in response to these comments because an accurate IPC is essential to the health and safety of the individual.

Comment: A commenter stated that since §565.11(a)(12) is already in the billing requirements, it should not also be in rule.

Response: HHSC declines to make changes in response to this comment because proposed §565.11(a)(12) is a different requirement than that of the HCS billing requirement. Billing requirements provide the documentation that is necessary for reimbursement. The proposed rules describe what the program provider must do to document the individual's progress or lack of progress towards goals and objectives.

Comment: In reference to §565.11(a)(14), a commenter stated that, "The state has specified that individuals can no longer receive paid work as part of a habilitation service so it is unclear whether individuals will still have access to sub-minimum wage, however, HHSC should not dictate the options available to individuals that are not covered by Medicaid."

Response: Proposed §565.11(a)(14) ensures that individuals who produce marketable goods and services in habilitation training programs are paid at a wage level commensurate with that paid to persons who are without disabilities and who would otherwise perform that work. Compensation is based on requirements contained in the Fair Labor Standards Act. This rule applies to HCS program providers and what they must do for individuals who receive HCS waiver program services. Therefore, HHSC declines to make changes in response to this comment.

Comment: A commenter stated that the language in §565.11(a)(20) is already outlined in licensure requirements for Individualized Skills and Socialization as well as the program service rules. Additionally, the commenter asserted that additional efforts are needed to set reasonable expectations for service providers who are contracting services with licensed providers that are expected to meet this standard under their license (and separately regulated by HHSC).

Response: HHSC made changes to this rule language and removed the program description language from the rule. The revised language requires the HCS program provider to ensure delivery of contracted services in accordance with the individual's person-directed plan (PDP), IPC, implementation plan, and Appendix C of the CMS federal HCS waiver application, but it does not require the HCS program provider to abide by the licensing requirements in the Individualized Skills and Socialization licensure rules.

Comment: The commenter recommended adding "including an electronic copy" to §565.11(a)(42)(B).

Response: HHSC agrees with the commenter and revised proposed §565.11(a)(42)(B) to include service by an electronic copy.

Comment: A commenter stated that the language about CFC ERS in §565.19 is not in the HCS Billing Requirements or as a service with a rate in the HCS rate tables.

Response: HHSC declines to make changes in response to this comment. Proposed §565.19 requires the program provider to deliver CFC ERS services as required by the federal CMS HCS waiver application. The rule ensures that an individual receives the appropriate services as indicated in the HCS waiver application and for the health and safety of the individual.

Comment: In reference to §565.19(1), a commenter asked why CFC ERS would not be approved for a person who is receiving host home companion care.

Response: HHSC declines to make changes in response to this comment because this comment is outside the scope of this rule project.

Comment: A commenter suggested adding "program providers should have policies and procedures to ensure:" to §565.23(b).

Response: HHSC declines to make changes in response to this comment because a program provider is directly responsible for the condition of an HCS residence rather than creating policies and procedures for selecting and maintaining HCS residences.

Comment: A commenter asked HHSC to explain how a neighborhood or community in §565.23(b)(1) can ensure the health, safety, and well-being of the individual.

Response: HHSC declines to make changes in response to this comment because the requestor was asking HHSC to provide examples of how a neighborhood could ensure the health, safety, and well-being of the individual rather than make changes to the rule language. A program provider may consider whether the neighborhood or community is adjacent to resources the individual may require, such as community engagement opportunities or medical resources.

Comment: A commenter recommended adding "including documentation of identified broken equipment and order date" to §565.23(b)(3). The commenter added that equipment breaks and may not be available for a time if the break is unexpected.

Response: HHSC agrees with this comment and revised proposed §565.23(b)(3) to clarify how a service provider will identify adaptive equipment that is not functional.

Comment: A commenter suggested adding "provided by the provider" to §565.23(b)(5). The commenter stated that host homes may have furnishings not in good repair, but that this should not necessarily be held against them, particularly if they are the parents of the individual and have limited income and resources.

Response: HHSC agrees with the commenter and revised proposed §565.23(b)(5) to include a requirement that furnishings must be safe and fit for use.

Comment: A commenter stated that the rules in §565.23(b)(7) should allow for a process for identifying and treating possible infestations and should not be penalized if the provider is treating a potential infestation and keeping individuals safe.

Response: HHSC declines to make changes in response to this comment because proposed §565.23(b)(7) only requires the home to be free of infestations including bugs, rodents, and other pests. The rule enables the provider to determine how to identify and treat infestations within the home.

Commenter: To ensure consistency with the Home and Community-based Services settings requirements located in 26 TAC §263.502, a commenter requested that the following be added to the end of §565.23(b)(14)(C): "Unless the LAR is the individual's host home provider."

Response: Under §263.502(b)(4), a lock is installed on the individual's bedroom door at no cost to the individual. The requirement for a lock to be installed on an individual's bedroom door at no cost to the individual or the individual's LAR, as proposed in rule §565.23(b)(14)(C), is consistent with §263.502 of this title. Therefore, HHSC declines to make changes in response to this comment.

Comment: In §565.23(b)(14)(C), a commenter asked to clarify in LTCR rule whether a family can purchase a different lock if they do not like the lock installed by the provider as long as it meets requirements.

Response: HHSC declines to make changes in response to this comment because proposed §565.23(b)(13) only requires that the program provider ensure a lock is on the individual's bedroom door.

Comment: A commenter asked HHSC to clarify the settings and frequency of fire drills in §565.23(e)(1).

Response: HHSC agrees with the commenter and made changes to §565.23 for clarity.

Comment: A commenter suggested that §565.23(e)(4) and (5) be consolidated into one statement, "Providers should retrain or revise emergency plans based upon assessment of staff and individual performance of the fire drill."

Response: HHSC declines to make changes in response to this comment because the requirement in each rule serves a different purpose in the service provider's emergency plan. Proposed §565.23(e)(4) relates to staff execution of a fire drill. Proposed §565.23(e)(5) involves actions the service provider takes at any time in response to an identified shortcoming in the emergency plan.

Comment: A commenter suggested adding language to §555.23(b)(e)(5) regarding fire drills and whether a person must evacuate in a home rated impractical with sprinklers.

Response: HHSC declines to make changes in response to this comment because proposed §565.23(f) requires the program provider to create and maintain an emergency plan to address fire drills and ensure the individual can exit the residence safely. The rule enables the HCS provider to create a plan based on the needs of the individual and adjust as necessary.

Comment: A commenter recommended adding text in quotes at the end of §565.25(d): "or electronically if available."

Response: HHSC agrees with the commenter and revised proposed §565.25(d) to include an option for electronic delivery of records, reports or other information requested by HHSC.

Comment: A commenter asked if providers could charge a deposit in accordance with the Texas Property Code in §565.27(a)(5)(A).

Response: Under 42 CFR 441.301(c)(4)(vi)(A), for a provider-owned or controlled residential setting, the individual receiving services has, at a minimum, the same responsibilities and protections from eviction that tenants have under the landlord/tenant law of the State, county, city, or other designated entity. As such, the program provider or service provider of host home/companion care and the individual or LAR agree that the residential agreement is a "lease," as defined in Texas Property Code Chapter 92, and that they are subject to state law governing residential tenancies, including Texas Property Code Chapters 24, 91, and 92 and Texas Rules of Civil Procedure Rule 510, in accordance with §263.503(c)(7)(A) of this title. Therefore, HHSC declines to make changes in response to this comment because the terms of a residential lease agreement would be controlled by the Texas Property Code.

Comment: A commenter stated that §565.27(c) is duplicative with financial impropriety provisions in §565.9(g)(2).

Response: HHSC declines to make changes in response to this comment because proposed §565.9(g)(2) is the prohibition against financial impropriety whereas proposed §565.27(c) requires written approval for all charges assessed by the program provider against the individual's personal funds.

Comment: A commenter requested to add, "have policies and procedures" to §565.31(a), Requirements Related to Abuse, Neglect, and Exploitation.

Response: HHSC declines to make changes in response to this comment because proposed §565.31(a) outlines the regulatory requirements to ensure compliance with the service provider's responsibility to inform the individual, the individual's LAR, and staff on the procedures to report abuse, neglect, and exploitation and to ensure staff is adequately trained. An additional regulatory requirement for the service provider to develop policies and procedures would require further discussion with stakeholders, advocates, and service providers.

Comment: A commenter requested adding the language "have policies and procedures" in §565.31(a)(2) so that it requires the provider to have policies and procedures for training staff on abuse, neglect, and exploitation and document the training.

Response: HHSC declines to make changes in response to this comment because proposed §565.31(a)(2) outlines the regulatory requirements to ensure compliance with the service provider's responsibility to ensure staff is adequately trained. An additional regulatory requirement for the service provider to develop policies and procedures would require further discussion with stakeholders, advocates, and service providers.

Comment: A commenter stated that it does not make sense that a provider must send Form 8494, Notification Regarding an Investigation of Abuse, Neglect or Exploitation, required in §565.31(f)(4) to HHSC because HHSC is the one who issues the outcome of the investigation; therefore, the commenter argues, HHSC is aware of the outcome before the provider. The commenter also stated that in some cases, HHSC has shown up with citations written for violations of this subsection when the provider never received the report of the investigation.

Response: HHSC declines to make changes in response to this comment because the purpose of Form 8494 is for the service provider to document any actions taken as a result of the outcome of the investigation.

Comment: A commenter questioned why HHSC continues to require that at least one person in a four-person residence must receive residential support. The commenter stated that the rates are the same for residential support and supervised living regardless of whether a person lives in a three or four-bedroom home; the designation of "residential support" requires 24-hour awake staff.

Response: HHSC declines to make changes in response to this comment because the federal CMS HCS waiver application requires one person receive residential support in a four-person residence. Making a change to this rule would conflict with the federal CMS HCS waiver application.

Comment: A commenter stated that the rules use the term "Billing Guidelines" when the terminology should be "Billing Requirements."

Response: HHSC agrees with the commenter and revised proposed §§565.3(89), (90), (99), (102), and §565.17(1)(A) to replace "Billing Guidelines" with "Billing Requirements."

Comment: A commenter stated that rules that allow individuals to choose any group home and rules that specify that individuals should have input on their roommates should be reconciled. The commenter argued that if providers allow an individual to move into any room he or she chooses, this could violate the rights of other individuals living in the home and their input on regarding perspective roommates.

Response: The commenter does not identify the rules that require reconciliation. Therefore, HHSC is unable to respond to these comments.

Comment: Regarding §565.11(a)(4), a commenter stated that a provider should be responsive to an individual's change in condition or specific request for services; however, a provider should not face "regulatory action when regulatory disagrees with the service plan." Rather, the commenter asserted that concerns should be referred back to the service planning team for consideration.

Response: As part of the provider's service delivery, the provider must maintain a system of delivering HCS Program and CFC services that is continuously responsive to changes in the individual's personal goals, condition, abilities, and needs as identified by the service planning team. It is unclear what the commenter means by references to a regulatory action when regulatory disagrees with the service plan. Proposed §565.11(a)(4) relates to a provider's response to an individual's change in condition or a specific request for services. Therefore, HHSC declines to make changes in response to this comment.

Comment: A commenter stated that not every rights restriction requires a behavior support plan and that providers have an extensive process that they must undergo with the service planning team to justify any rights restriction and documentation in the PDP. This may or may not include a recommendation for a behavior support plan. Therefore, the commenter stated, §565.11(a)(6) should be modified.

Response: As part of the provider's service delivery, the provider must ensure that an individual's rights are not violated unless contraindications are documented with justification in a behavior support plan. The requirement of a behavior support plan to restrict an individual's rights ensures there is an identified need for the restriction, which is documented, and that lesser restrictive options are considered. Therefore, HHSC declines to make changes in response to this comment.

Comment: A commenter had concerns regarding the full impact of including the residential review checklist in this rule because previously providers were given the opportunity to correct any concerns without penalty unless there was a hazard to health and safety or serious concerns that would constitute the need for an interim survey. The commenter stated that these rules and program changes may change this practice and lead to essentially licensing every three or four-bedroom group home in HCS, as well as the program as a whole.

Response: HHSC declines to make changes in response to this comment because program providers have an opportunity to correct any identified non-compliance in accordance with proposed §565.49, Program Provider Compliance and Corrective Action.

Comment: Two commenters had concerns with putting an end date on the use of enclosed beds. One stated that if HHSC is going to prohibit the use of enclosure beds in §565.35(a), enclosed beds should not be prohibited until the date the rule becomes effective, rather than January 1, 2023.

Response: HHSC agrees with the commenter and revised proposed §565.35(a) to change the effective date from January 1, 2023, to June 19, 2023, matching the effective date of the rules.

Comment: Two commenters expressed concern with the prohibition on enclosed beds, stating that there are unique circumstances where an individual may need a more restrictive bed or where an enclosed bed is the safest option, and asserted that they should be allowed with proper documentation and discussion.

Response: Under proposed §565.35(a), the program provider may allow the use of an enclosed bed in a residence if the enclosed bed is purchased, obtained, and complies with §565.35(c) prior to June 19, 2023. Under proposed §565.35(b), an enclosed bed is prohibited in a residence if it is purchased or obtained on or after June 19, 2023. Under proposed §565.35(e), all enclosed beds are prohibited after June 19, 2028, for health and safety of the individual. Therefore, HHSC declines to continue the use of enclosed beds after June 19, 2028, without further dialogue with stakeholders, advocates, and providers.

Comment: In reference to §565.35(c)(3)(B), a commenter suggested that producing a receipt for an enclosed bed for HHSC may not be feasible in all cases as families may not still have a receipt for the bed.

Response: HHSC declines to make changes in response to this comment because a receipt from a durable medical equipment company for the enclosed bed ensures the purchased bed meets industry standards for an enclosed bed.

Comment: A commenter reported that there is some inconsistency in the use of the term "enclosed beds" throughout §565.35(c), and stated that the description of the assessment, documentation, and review of enclosed bed usage in HCS settings other than the participant's own home or family home is somewhat duplicative and confusing.

Response: The commenter does not identify the inconsistencies in the use of the term "enclosed bed" or what is duplicative and confusing in proposed §565.35(c). Therefore, HHSC is unable to respond to these comments.

Comment: A commenter stated that the requirements in §565.35, Enclosed Beds, must be consistent with §565.37, Protective Devices, given that the definition of an enclosed bed identifies it as a protective device.

Response: HHSC agrees with the commenter and revised proposed §565.37 to state that if the protective device is an enclosed bed, providers should follow proposed §565.35.

Comment: A commenter was concerned that the requirements in §565.35(c)(3)(C) may cause a misunderstanding with other requirements and asked that the rule language be simplified for clarity.

Response: The commenter does not identify the other requirements that could cause a misunderstanding with proposed §565.35(c)(3)(C). Therefore, HHSC is unable to respond to these comments.

Comment: A commenter was concerned that highlighting the requirements in §565.35(e) that an enclosed bed must be commercially produced may cause a misunderstanding with the other requirements that are needed to meet the definition of enclosed bed located in §565.5(34).

Response: HHSC agrees with this comment and removed subsection(e) from §565.35 for clarity as this requirement was already listed in the definition section at §565.5(34).

Comment: A commenter expressed concerns about removal of language in existing rules at 40 TAC §9.172(4) requiring program providers to, "encourage involvement of the LAR or family members and friends in all aspects of the individual's life and provide as much assistance and support as is possible and constructive."

Response: The program provider must develop and implement policies to ensure the individual's family members and LAR are involved in the individual's services, as proposed in §565.5(b)(39). Therefore, HHSC declines to make changes in response to this comment.

Comment: A commenter expressed concerns about removal of language in existing rules at 40 TAC §9.174(a)(9) requiring program providers to, "allow the individual's family members and friends access to an individual without arbitrary restrictions unless exceptional conditions are justified by the individual's service planning team and documented in the PDP."

Response: HHSC declines to make changes in response to this comment because proposed §565.5(b) requires the program provider to develop and implement policies to ensure the individual can receive visitors without prior notice, have privacy in visitation with family and others, and communicate, associate, and meet privately with any person of the individual's choice.

Comment: A commenter expressed concerns about removal of language in existing rules at 40 TAC §9.174(a)(11) requiring program providers to, "ensure that the individual who is living outside the family home is living in a residence that maximizes opportunities for interaction with community members to the greatest extent possible."

Response: HHSC declines to make changes in response to this comment because proposed §565.5(b) requires the service provider develop and implement policies to ensure the individual's right to interaction within the community is not violated.

Comment: A commenter expressed concerns about removal of language in existing rules at 40 TAC §9.174(a)(15) requiring program providers to, "ensure that each individual has opportunities to develop relationships with peers with and without disabilities and receives support if the individual chooses to develop such relationships."

Comment: A commenter expressed concerns about removal of language in existing rules at 40 TAC §9.174(a)(19) requiring program providers to, "unless contraindications are documented with justification by the service planning team, ensure that an individual's routine provides opportunities for leisure time activities, vacation periods, religious observances, holidays, and days off, consistent with the individual's choice and routines of other members of the community."

Response: HHSC declines to make changes in response to this comment because proposed §565.5(b) requires the service provider to develop and implement policies to ensure an individual has opportunities for leisure time activities, vacation periods, religious observances, holidays, and days off, consistent with the individual's choice and routines of other members of the community. Further, proposed §565.11(a)(6) would allow for restriction of an individual's right, under §565.5, if there was a documented justification for the restriction in the individual's behavior support plan.

Comment: A commenter expressed concerns about removal of language in existing rules at 40 TAC §9.174(a)(21) requiring program providers to, "unless contraindications are documented with justification by the service planning team, ensure that each individual is offered choices and opportunities for accessing and participating in community activities and experiences available to peers without disabilities."

Response: HHSC declines to make changes in response to this comment because proposed §565.5(b) requires the service provider to develop and implement policies to ensure an individual has an opportunity to participate in social, recreational, and community group activities. Further, proposed §565.11(a)(6) would allow for restriction of an individual's right, under §565.5, if there was a documented justification for the restriction in the individual's behavior support plan.

Comment: A commenter expressed concerns about removal of language in existing rules at 40 TAC §9.174(a)(22) requiring program providers to, "assist the individual to meet as many of the individual's needs as possible by using generic community services and resources in the same way and during the same hours as these generic services are used by the community at-large."

Response: HHSC declines to make changes in response to this comment as because proposed §565.5(b) requires the service provider develop and implement policies to ensure the individual's right to interaction within in the community is not violated.

Comment: A commenter expressed concerns about the removal of language in existing rules at 40 TAC §9.174(a)(51) requiring program providers to, "ensure that appropriate staff members, service providers, and the service coordinator are informed of a circumstance or event that occurs in an individual's life or a change to an individual's condition that may affect the provision of services to the individual."

Response: HHSC declines to make changes in response to this comment because proposed §565.11(a)(8) requires a program provider to inform appropriate staff members, service providers, and the service coordinator when a circumstance or even occurs in an individual's life or a change to an individual's condition affects the provision of services to the individual.

Comment: A commenter stated that while some individual rights remain in the proposed rules and the proposed rules require a program provider to inform and, in some cases, protect and promote the rights of an individual the rules do not require the provider to support the individual to exercise his or her rights. The commenter stated that this distinction is subtle, but important.

Response: HHSC declines to make changes in response to this comment because proposed §565.5(b) requires a program provider to develop and implement policies to ensure the individual can exercise the rights, enumerated under proposed §565.5, without interference, coercion, discrimination, or retaliation by the program provider. Further, the individual has a right to be informed that the individual may make a complaint with the Intellectual and Developmental Disability Ombudsman.

Comment: A commenter recommended adding "level of need (LON)" to §565.11(a)(2) so it reads that a program provider must serve an eligible individual without regard to age, sex, race, disability, or level of need.

Response: Level of need is an assignment given by HHSC to an individual upon which reimbursement for host home/companion care, supervised living, residential support, and Individualized Skills and Socialization is based. Proposed §565.11(a)(2) requires a program provider to serve an eligible applicant level of disability. Therefore, HHSC declines to make changes in response to this comment.

Comment: A commenter recommended adding the following "language currently at 40 TAC §9.174(a)(23)(E) requiring program providers to ensure: "unless contraindications are documented with justification by the service planning team, the individual lives near family and friends and needed or desired community resources consistent with the individual's choice, if possible."

Response: HHSC declines to make any changes in response to this comment as proposed §565.5(b)(27) requires program providers to promote the individual's right to participate in decisions regarding their living environment. Additionally, proposed §565.5(b)(18) outlines the right of the individual to live where the individual is within proximity of and can access treatment and services that are best suited to meet the individual's needs and abilities and that enhance that individual's strengths.

HHSC made minor changes to rule language as a result of internal feedback. Revisions include:

- clarifying expectations for the frequency of fire drills;

- changing the terminology "HHSC Provider User Guide" to "HHSC guidance";

- adding a reference to the Medicaid rules regarding prohibited settings, to clarify appropriate settings for respite;

- clarifying language regarding the individual's right to receive visitors without prior notice, to align with Medicaid program rules;

- clarifying the program provider's role in reporting abuse, neglect, and exploitation when a contracted service provider is involved, to align with Individualized Skills and Socialization rules; and

- updating TAC references related to new Medicaid HCS program rules.

SUBCHAPTER B. OVERVIEW

26 TAC §565.2, §565.3

STATUTORY AUTHORITY

The new sections 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 §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; and Texas Human Resources Code §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

§565.3.Definitions.

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

(1) Abuse--Considered to be:

(A) physical abuse;

(B) sexual abuse; or

(2) Actively involved--Significant, ongoing, and supportive involvement with an applicant or individual by a person, as determined by the applicant's or individual's service planning team or program provider, based on the person's:

(A) interactions with the applicant or individual;

(B) availability to the applicant or individual for assistance or support when needed; and

(C) knowledge of, sensitivity to, and advocacy for the applicant's or individual's needs, preferences, values, and beliefs.

(3) Activities of daily living (ADL)--Basic personal everyday activities, including tasks such as eating, toileting, grooming, dressing, bathing, and transferring.

(4) Actual harm--A negative outcome that compromises an individual's physical, mental, or emotional well-being but does not constitute an immediate threat.

(5) Alarm call--A signal transmitted from an individual's Community First Choice (CFC) emergency response services (ERS) equipment to the CFC ERS response center indicating that the individual needs immediate assistance.

(6) Alleged perpetrator--A person alleged to have committed an act of abuse, neglect, or exploitation of an individual.

(7) Applicant--A Texas resident seeking services in the Home and Community-based Services (HCS) Program.

(8) Behavioral emergency--A situation in which an individual's severely aggressive, destructive, violent, or self-injurious behavior:

(A) poses a substantial risk of imminent probable death of, or substantial bodily harm to, the individual or others;

(B) has not abated in response to preventive de-escalatory or redirection techniques;

(D) does not occur during a medical or dental procedure.

(9) Business day--Any day except a Saturday, Sunday, or national or state holiday listed in Texas Government Code §662.003(a) or (b).

(10) Calendar day--Any day, including weekends and holidays.

(11) Centers for Medicare and Medicaid Services (CMS)--The federal agency within the United States Department of Health and Human Services that administers the Medicare and Medicaid programs.

(12) Certification standard--A minimum standard for a program provider used by the Texas Health and Human Services Commission (HHSC) during a survey to ensure health and safety of an individual. Violations of a certification principle or standard are subject to administrative penalties.

(13) CFC--Community First Choice.

(14) CFC emergency response services (CFC ERS)--Backup systems and supports used to ensure continuity of services and supports. CFC ERS includes electronic devices and an array of available technology, personal emergency response systems, and other mobile communication devices.

(15) CFC ERS provider--The entity directly providing CFC ERS to an individual, which may be the program provider or a contractor of the program provider.

(16) CFC Financial management services (CFC FMS)--The term used for FMS on the individual plan of care (IPC) of an applicant or individual if the applicant or individual receives only CFC personal assistance services/habilitation (PAS/HAB) through the CDS option.

(17) CFC personal assistance services/habilitation (CFC PAS/HAB). A service that:

(A) consists of:

(i) personal assistance services that aid an individual in performing ADLs and instrumental activities of daily living (IADLs) based on the individual's person-centered service plan, including:

(I) non-skilled assistance with the performance of the ADLs and IADLs;

(II) household chores necessary to maintain the home as a clean, sanitary, and safe environment;

(III) escort services, which consist of accompanying and assisting an individual to access services or activities in the community, but do not include transporting an individual; and

(IV) assistance with health-related tasks; and

(ii) habilitation that aids an individual in acquiring, retaining, and improving self-help, socialization, and daily living skills and training the individual on ADLs, IADLs, and health-related tasks, such as:

(I) self-care;

(II) personal hygiene;

(III) household tasks;

(IV) mobility;

(V) money management;

(VI) community integration, including how to get around in the community;

(VII) use of adaptive equipment;

(VIII) personal decision making;

(IX) reduction of challenging behaviors to allow individuals to accomplish ADLs, IADLs, and health-related tasks; and

(X) self-administration of medication; and

(B) does not include transporting the individual, which means driving the individual from one location to another.

(18) CFC support consultation--The term used for support consultation on the IPC of an applicant or individual if the applicant or individual receives only CFC PAS/HAB through the CDS option.

(19) CFC support management--Training regarding how to select, manage, and dismiss an unlicensed service provider of CFC PAS/HAB, as described in the HCS Handbook.

(20) Chemical restraint--A medication used to control an individual's behavior or to restrict the individual's freedom of movement that is not a standard treatment for the individual's medical or psychological condition.

(21) Cognitive rehabilitation therapy--A service that:

(A) assists an individual in learning or relearning cognitive skills that have been lost or altered because of damage to brain cells or brain chemistry in order to enable the individual to compensate for lost cognitive functions; and

(B) includes reinforcing, strengthening, or reestablishing previously learned patterns of behavior, or establishing new patterns of cognitive activity or compensatory mechanisms for impaired neurological systems.

(22) Community resource coordination group (CRCG)--A local interagency group composed of public and private agencies that develops service plans for individuals whose needs can be met only through interagency coordination and cooperation. The group's role and responsibilities are described in the Memorandum of Understanding on Coordinated Services to Persons Needing Services from More Than One Agency, which is available on the HHSC website.

(23) Competitive employment--Employment that pays an individual at least minimum wage if the individual is not self-employed.

(24) Consumer directed services option (CDS option)--A service delivery option in which an individual or legally authorized representative employs and retains service providers and directs the delivery of program services.

(25) Contract--A provisional contract or a standard contract.

(26) Controlling person--A person who:

(A) has an ownership interest in a program provider;

(B) is an officer or director of a corporation that is a program provider;

(D) is a member or manager in a limited liability company that is a program provider;

(E) is a trustee or trust manager of a trust that is a program provider; or

(F) because of a personal, familial, or other relationship with a program provider, is in a position of actual control or authority with respect to the program provider, regardless of the person's title.

(27) Critical incident--An event listed in the HCS Provider User Guide found on the HHSC website.

(28) Critical violation--A violation for which HHSC may assess an administrative penalty before giving a program provider an opportunity to correct the violation. A critical violation:

(A) is an immediate threat;

(B) has resulted in actual harm and is widespread;

(D) has the potential to result in actual harm and is widespread.

(29) DADS--Formerly the Texas Department of Aging and Disability Services. Its functions have been transferred to the Texas Health and Human Services Commission.

(30) DFPS--The Department of Family and Protective Services.

(31) Emergency--An unexpected situation in which the absence of an immediate response could reasonably be expected to result in risk to the health and safety of an individual or another person.

(32) Emergency Plan--A written plan that describes the actions that will be taken to protect individuals, including evacuation or sheltering-in-place, in the event of an emergency such as a fire or natural disaster.

(33) Emergency situation--An unexpected situation involving an individual's health, safety, or welfare, of which a person of ordinary prudence would determine that the legally authorized representative (LAR) should be informed, such as:

(A) an individual needing emergency medical care;

(B) an individual being removed from his or her residence by law enforcement;

(C) an individual leaving his or her residence without notifying a staff member or service provider and not being located; and

(D) an individual being moved from his or her residence to protect the individual (for example, because of a hurricane, fire, or flood).

(34) Enclosed bed--A protective device that:

(A) is commercially produced;

(B) includes a 360-degree side enclosure, inclusive of a top cover or canopy; and

(35) Exploitation--The illegal or improper act or process of using, or attempting to use, an individual or the resources of an individual for monetary or personal benefit, profit, or gain.

(36) Family-based alternative--A family setting in which the family provider or providers are specially trained to provide support and in-home care for children with disabilities or children who are medically fragile.

(37) Financial management services (FMS)--A service that is provided to an individual participating in the CDS option, as defined in 40 TAC §41.103 (relating to Definitions).

(38) Financial management services agency (FMSA)--An entity that provides financial management services to an individual participating in the CDS option, as defined in 40 TAC §41.103.

(39) Follow-up survey--A review by HHSC of a program provider to determine if the program provider has completed corrective action.

(40) Former military member--A person who served in the United States Army, Navy, Air Force, Marine Corps, Coast Guard, or Space Force:

(A) who declared and maintained Texas as the person's state of legal residence in the manner provided by the applicable military branch while on active duty; and

(B) who was killed in action or died while in service, or whose active duty otherwise ended.

(41) Four-person residence--A residence:

(A) that a program provider leases or owns;

(B) in which at least one person but no more than four persons receive:

(i) residential support;

(ii) supervised living;

(iii) a non-HCS Program service like residential support or supervised living (for example, services funded by DFPS or by a person's own resources); or

(iv) respite;

(D) that is not the residence of any persons other than a service provider, the service provider's spouse, or person with whom the service provider has a spousal relationship, or a person described in subparagraph (B) of this paragraph; and

(E)that is not a dwelling described in §263.101(a)(5) of this title (relating to Eligibility Criteria for HCS Program Services and CFC Services).

(42) General residential operation (GRO)--The term has the meaning set forth in Texas Human Resources Code §42.002.

(43) Good cause--As used in §565.19(10) of this chapter (relating to Community First Choice (CFC) Emergency Response Systems (ERS) Services), a reason outside the control of the CFC ERS provider, as determined by HHSC.

(44) Health-related tasks--Specific tasks related to the needs of an individual, which can be delegated or assigned by licensed health care professionals under state law to be performed by a service provider of CFC PAS/HAB. These include tasks delegated by a registered nurse (RN); health maintenance activities as defined in 22 TAC §225.4 (relating to Definitions), that may not require delegation; and activities assigned to a service provider of CFC PAS/HAB by a licensed physical therapist, occupational therapist, or speech-language pathologist.

(45) Home and Community-based Services Program (HCS Program)--The program operated by HHSC as authorized by CMS in accordance with §1915(c) of the Social Security Act.

(46) HHSC--The Texas Health and Human Services Commission.

(47) Instrumental activities of daily living (IADLs)--Activities related to living independently in the community, including meal planning and preparation; managing finances; shopping for food, clothing, and other essential items; performing essential household chores; communicating by phone or other media; and traveling around and participating in the community.

(48) ICAP--Inventory for Client and Agency Planning.

(49) ICF/IID--Intermediate care facility for individuals with an intellectual disability or related conditions. An ICF/IID is a facility in which the ICF/IID program is:

(A) licensed in accordance with Texas Health and Safety Code Chapter 252; or

(B) certified by HHSC, including a state supported living center.

(50) ICF/IID program--The Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions Program, which provides Medicaid-funded residential services to individuals with an intellectual disability or related conditions.

(51) Immediate threat--A situation that causes, or is likely to cause, serious injury, harm, impairment to, or the death of an individual.

(52) Implementation plan--A written document developed by the program provider that, for each HCS Program service, except for transportation provided as a supported home living activity, and CFC service, except for CFC support management, on the individual's IPC to be provided by the program provider, includes:

(A) a list of outcomes identified in the person-directed plan (PDP) that will be addressed using HCS Program and CFC services;

(B) specific objectives to address the outcomes required by subparagraph (A) of this paragraph that are:

(i) observable, measurable, and outcome-oriented; and

(ii) derived from assessments of the individual's strengths, personal goals, and needs;

(D) the number of units of HCS Program and CFC services needed to complete each objective;

(E) the frequency and duration of HCS Program and CFC services needed to complete each objective; and

(F) the signature and date of the individual, LAR, and program provider.

(53) Individual--A person enrolled in the HCS Program.

(54) Individual plan of care (IPC)--A written plan that:

(A) states:

(i) the type and amount of each HCS Program service and each CFC service, except for CFC support management, to be provided to the individual during an IPC year;

(ii) the services and supports to be provided to the individual through resources other than HCS Program services or CFC services, including natural supports, medical services, and educational services; and

(iii) if an individual will receive CFC support management; and

(B) is authorized by HHSC.

(55) Initial certification survey--A review by HHSC of a program provider with a provisional contract to determine if the program provider complies with the certification standards.

(56) Initial IPC--The first IPC for an individual developed before the individual's enrollment into the HCS Program.

(57) Intellectual disability--Significant sub-average general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period.

(58) Intellectual Disability/Related Conditions Assessment (ID/RC Assessment)--A form used by HHSC for level of care (LOC) determination and level of need (LON) assignment.

(59) Intermittent survey--A review by HHSC of a program provider, which may originate from a complaint, that is not an initial certification survey, a recertification survey, or a follow-up survey, to determine if the program provider complies with the certification standards.

(60) IPC cost--Estimated annual cost of HCS Program services included on an IPC.

(61) IPC year--A 12-month time period starting on the date an initial or renewal IPC begins. A revised IPC does not change the begin or end date of an IPC year.

(62) Isolated--The scope of a violation that has affected a very limited number of individuals or that has occurred only occasionally.

(63) Legally authorized representative (LAR)--A person authorized by law to act on behalf of a person in a matter described in this subchapter, and may include a parent, guardian, or managing conservator of a minor, or the guardian of an adult.

(64) Level of care (LOC)--A determination given to an individual as part of the eligibility determination process based on data submitted on the ID/RC Assessment.

(65) Level of need (LON)--An assignment given by HHSC to an individual upon which reimbursement for host home/companion care, supervised living, residential support, and individualized skills and socialization is based.

(66) Licensed vocational nurse (LVN)--A person licensed to practice vocational nursing in accordance with Texas Occupations Code Chapter 301.

(67) Local intellectual and developmental disability authority (LIDDA)--An entity designated by the HHSC Executive Commissioner, in accordance with Texas Health and Safety Code §533A.035.

(68) Managed care organization--This term has the meaning set forth in Texas Government Code §536.001.

(69) Means of escape--A continuous and unobstructed path of travel from an occupied portion of a building to an outside area.

(70) Mechanical restraint--A mechanical device, material, or equipment used to control an individual's behavior by restricting the ability of the individual to freely move part or all of the individual's body.

(71) Medical Assistance Only Medicaid (MAO Medicaid)--A type of Medicaid for which an applicant or individual qualifies financially for Medicaid assistance but does not receive Supplemental Security Income benefits.

(72) Microboard--A program provider:

(A) that is a non-profit corporation:

(i) that is created and operated by no more than 10 persons, including an individual;

(ii) the purpose of which is to address the needs of the individual and directly manage the provision of HCS Program services or CFC services; and

(iii) in which each person operating the corporation participates in addressing the needs of the individual and directly managing the provision of HCS Program services or CFC services; and

(B) that has a service capacity designated in the HHSC data system of no more than three individuals.

(73) Military family member--A person who is the spouse or child (regardless of age) of:

(A) a military member; or

(B) a former military member.

(74) Military member--A member of the United States military serving in the Army, Navy, Air Force, Marine Corps, Coast Guard, or Space Force on active duty who has declared and maintains Texas as the member's state of legal residence in the manner provided by the applicable military branch.

(75) Natural supports--Unpaid persons, including family members, volunteers, neighbors, and friends, who assist an individual.

(76) Neglect--A negligent act or omission that caused physical or emotional injury or death to an individual or placed an individual at risk of physical or emotional injury or death.

(77) Nursing facility--A facility licensed in accordance with Texas Health and Safety Code Chapter 242.

(78) Pattern--The scope of a violation that is not widespread but represents repeated failures by the program provider to comply with certification standards and the failures:

(A) are found throughout the services provided by the program provider; or

(B) involve or affect the same individuals, service providers, or volunteers.

(79) Permanency planning--A philosophy and planning process that focuses on the outcome of family support for an applicant or individual under 22 years of age by facilitating a permanent living arrangement in which the primary feature is an enduring and nurturing parental relationship.

(80) Permanency Planning Review Screen--A screen in the HHSC data system, completed by a LIDDA, that identifies community supports needed to achieve an applicant's or individual's permanency planning outcomes and provides information necessary for approval to provide supervised living or residential support to the applicant or individual.

(81) Person-directed plan (PDP)--A written plan, based on person-directed planning and developed with an applicant or individual in accordance with the HHSC Person-Directed Plan form and discovery tool found on the HHSC website, that describes the supports and services necessary to achieve the desired outcomes identified by the applicant or individual (and LAR on the applicant's or individual's behalf) and ensure the applicant's or individual's health and safety.

(82) Person-directed planning--An ongoing process that empowers the applicant or individual (and the LAR on the applicant's or individual's behalf) to direct the development of a PDP. The process:

(A) identifies supports and services necessary to achieve the applicant's or individual's outcomes;

(B) identifies existing supports, including natural supports and other supports available to the applicant or individual and negotiates needed services system supports;

(C) occurs with the support of a group of people chosen by the applicant or individual (and the LAR on the applicant's or individual's behalf); and

(D) accommodates the applicant's or individual's style of interaction and preferences.

(83) Physical abuse--Any of the following:

(A) an act or failure to act performed knowingly, recklessly, or intentionally, including incitement to act, that caused physical injury or death to an individual or placed an individual at risk of physical injury or death;

(B) an act of inappropriate or excessive force or corporal punishment, regardless of whether the act results in a physical injury to an individual;

(C) the use of a restraint on an individual in a manner that is not in compliance with federal and state laws, rules, and regulations; or

(D) seclusion.

(84) Physical restraint--Any manual method used to control an individual's behavior, except for physical guidance or prompting of brief duration that an individual does not resist, that restricts:

(A) the free movement or normal functioning of all or a part of the individual's body; or

(B) normal access by an individual to a portion of the individual's body.

(85) Plan of correction--A plan documented on the HHSC Plan of Correction form that includes the corrective action that a program provider will take for each violation identified on a final survey report.

(86) Plan of removal--A written plan that describes the action a program provider will take to remove an immediate threat that HHSC identifies.

(87) Post 45-day follow-up survey--A follow-up survey conducted at least 46 calendar days after the exit conference of the survey in which the violation requiring corrective action was identified.

(88) Post-move monitoring visit--A visit conducted by the service coordinator in accordance with the Intellectual and Developmental Disability Preadmission Screening and Resident Review (IDD-PASRR) Handbook.

(89) Pre-enrollment minor home modifications--Minor home modifications, as described in the HCS Program Billing Requirements, completed before an applicant is discharged from a nursing facility, an ICF/IID, or a GRO and before the effective date of the applicant's enrollment in the HCS Program.

(90) Pre-enrollment minor home modifications assessment--An assessment performed by a licensed professional as required by the HCS Program Billing Requirements to determine the need for pre-enrollment minor home modifications.

(91) Pre-move site review--A review conducted by the service coordinator in accordance with HHSC's IDD-PASRR Handbook.

(92) Program provider--A "person" as defined in 40 TAC §49.102 (relating to Definitions) that has a contract with HHSC to provide HCS Program services, excluding an FMSA.

(93) Protective Device--An item or device, such as a safety vest, lap belt, bed rail, safety padding, adaptation to furniture, or helmet, used only to protect an individual from injury, or for body positioning of the individual to ensure health and safety, and not used to modify or control behavior. The device or item is considered a protective device only when used in accordance with §565.37 of this chapter (relating to Protective Devices).

(94) Provisional contract--A contract that HHSC enters into with a program provider in accordance with 40 TAC §49.208 (relating to Provisional Contract Application Approval) that has a term of no more than three years, not including any extension agreed to in accordance with §49.208(e).

(95) Public emergency personnel--Personnel of a sheriff's department, police department, emergency medical service, or fire department.

(96) Recertification survey--A review by HHSC of a program provider with a standard contract to determine if the program provider complies with the certification standards and will be certified for a new certification period.

(97) Registered nurse (RN)--A person licensed to practice professional nursing in accordance with Texas Occupations Code Chapter 301.

(98) Related condition--A severe and chronic disability that:

(A) is attributed to:

(i) cerebral palsy or epilepsy; or

(ii) any other condition, other than mental illness, found to be closely related to an intellectual disability because the condition results in impairment of general intellectual functioning or adaptive behavior, similar to that of individuals with an intellectual disability, and requires treatment or services similar to those required for individuals with an intellectual disability;

(B) is manifested before the individual reaches age 22;

(D) results in substantial functional limitation in at least three of the following areas of major life activity:

(i) self-care;

(ii) understanding and use of language;

(iii) learning;

(iv) mobility;

(v) self-direction; and

(vi) capacity for independent living.

(99) Relative--A person related to another person within the fourth degree of consanguinity or within the second degree of affinity. A more detailed explanation of this term is included in the HCS Program Billing Requirements.

(100) Renewal IPC--An IPC developed for an individual in accordance with §263.302(a) of this title (relating to Renewal and Revision of an IPC).

(101) Repeated violation--A violation that is based on the same certification standard and involves the same HCS Program service or CFC service as a previous violation.

(102) Residence--A host home/companion care, three-person, or four-person residence, as defined by the HCS Program Billing Requirements.

(103) Residential survey--A review of a residence HHSC to determine if the program provider complies with §565.23 of this chapter (relating to Residential Requirements).

(104) Responder--A person designated to respond to an alarm call activated by an individual.

(105) Restraint--Any of the following:

(A) a physical restraint;

(B) a mechanical restraint; or

(106) Revised IPC--An initial IPC or a renewal IPC that is revised during an IPC year, in accordance with §263.302(b) or (d) of this title, to add a new HCS Program service or CFC service or change the amount of an existing service.

(107) Seclusion--The involuntary placement of an individual in an area from which the individual is prevented from leaving.

(108) Service backup plan--A plan that ensures continuity of critical program services if service delivery is interrupted.

(109) Service coordination--A service as defined in Chapter 331 of this title (relating to LIDDA Service Coordination).

(110) Service coordinator--An employee of a LIDDA who provides service coordination to an individual.

(111) Service planning team--One of the following:

(A) for an applicant or individual other than one described in subparagraphs (B) or (C) of this paragraph, a planning team consisting of:

(i) an applicant, individual, and LAR;

(ii) service coordinator; and

(iii) other persons chosen by the applicant, individual, or LAR, for example, a staff member of the program provider, a family member, a friend, or a teacher;

(B) for an applicant 21 years of age or older who is residing in a nursing facility and enrolling in the HCS Program, a planning team consisting of:

(i) the applicant and LAR;

(ii) a service coordinator;

(iii) a staff member of the program provider;

(iv) providers of specialized services;

(v) a nursing facility staff person who is familiar with the applicant's needs;

(vi) other persons chosen by the applicant or LAR, for example, a family member, friend, or teacher; and

(vii) at the discretion of the LIDDA, and with the approval of the individual or LAR, other persons who are directly involved in the delivery of services to persons with an intellectual or developmental disability; or

(C) for an individual 21 years of age or older who has enrolled in the HCS Program from a nursing facility or has enrolled in the HCS Program as a diversion from admission to a nursing facility, for 365 calendar days after enrollment, a planning team consisting of:

(i) the individual and LAR;

(ii) a service coordinator;

(iii) a staff member of the program provider;

(iv) other persons chosen by the individual or LAR, for example, a family member, a friend, or a teacher; and

(v) with the approval of the individual or LAR, other persons who are directly involved in the delivery of services to persons with an intellectual or developmental disability.

(112) Service provider--A person, who may be a staff member, who directly provides an HCS Program service or CFC service to an individual.

(113) Sexual abuse--Any of the following:

(A) sexual exploitation of an individual;

(B) non-consensual or unwelcomed sexual activity with an individual; or

(C) consensual sexual activity between an individual and a service provider, staff member, volunteer, or controlling person, unless a consensual sexual relationship with an adult individual existed before the service provider, staff member, volunteer, or controlling person became a service provider, staff member, volunteer, or controlling person.

(114) Sexual activity--An activity that is sexual in nature, including kissing, hugging, stroking, or fondling with sexual intent.

(115) Sexual exploitation--A pattern, practice, or scheme of conduct against an individual that can reasonably be construed as being for the purposes of sexual arousal or gratification of any person:

(A) which may include sexual contact; and

(B) does not include obtaining information about an individual's sexual history within standard accepted clinical practice.

(116) Specialized services--The services defined in §303.102 of this title (relating to Definitions).

(117) SSI--Supplemental Security Income.

(118) Staff member--An employee or contractor of an HCS Program provider.

(119) Standard contract--A contract that HHSC enters into with a program provider in accordance with 40 TAC §49.209 (relating to Standard Contract) that has a term of no more than five years, not including any extension agreed to in accordance with 40 TAC §49.209(d).

(120) State Medicaid claims administrator--The entity contracting with the state as the Medicaid claims administrator and fiscal agent.

(121) State supported living center--A state-supported and structured residential facility operated by HHSC to provide to persons with an intellectual disability a variety of services, including medical treatment, specialized therapy, and training in acquiring personal, social, and vocational skills, but does not include a community-based facility owned by HHSC.

(122) Support consultation--A service, as defined in 40 TAC §41.103, that is provided to an individual participating in the CDS option at the request of the individual or LAR.

(123) Survey--An initial certification survey, a recertification survey, a follow-up survey, and an intermittent survey.

(124) System check--A test of the CFC ERS equipment to determine if:

(A) the individual can successfully activate an alarm call; and

(B) the equipment is working properly.

(125) Three-person residence--A residence:

(A) that a program provider leases or owns;

(B) in which at least one person but no more than three persons receive:

(i) residential support;

(ii) supervised living;

(iii) a non-HCS Program service like residential support or supervised living (for example, services funded by DFPS or by a person's own resources); or

(iv) respite;

(C) that is not the residence of any person other than a service provider, the service provider's spouse, a person with whom the service provider has a spousal relationship, or a person described in subparagraph (B) of this paragraph; and

(D) that is not a dwelling described in §263.101(a)(5) of this title.

(126) Transition plan--As described in §303.102 of this title, a written plan developed by the service planning team for an applicant who is residing in a nursing facility and enrolling in the HCS Program. A transition plan includes essential and nonessential services and supports the applicant needs to transition from a nursing facility to a community setting.

(127) Transition assistance services (TAS)--Services provided to assist an applicant in setting up a household in the community before being discharged from a nursing facility, an ICF/IID, or a GRO and before enrolling in the HCS Program. TAS consists of:

(A) for an applicant whose proposed initial IPC does not include residential support, supervised living, or host home/companion care:

(i) paying security deposits required to lease a home, including an apartment, or to establish utility services for a home;

(ii) purchasing essential furnishings for a home, including a table, a bed, chairs, window blinds, eating utensils, and food preparation items;

(iii) paying for expenses required to move personal items, including furniture and clothing, into a home;

(iv) paying for services to ensure the health and safety of the applicant in a home, including pest eradication, allergen control, or a one-time cleaning before occupancy; and

(v) purchasing essential supplies for a home, including toilet paper, towels, and bed linens; and

(B) for an applicant whose initial proposed IPC includes residential support, supervised living, or host home/companion care:

(i) purchasing bedroom furniture;

(ii) purchasing personal linens for the bedroom and bathroom; and

(iii) paying for allergen control.

(128) Transportation plan--A written plan based on person-directed planning and developed with an applicant or individual using the HHSC Individual Transportation Plan form found on the HHSC website. A transportation plan is used to document how transportation as a supported home living activity will be delivered to support an individual's desired outcomes and purposes for transportation as identified in the PDP.

(129) Vendor hold--A temporary suspension of payments that are due to a program provider under a contract.

(130) Verbal or emotional abuse--Any act or use of verbal or other communication, including gestures:

(A) to:

(i) harass, intimidate, humiliate, or degrade an individual; or

(ii) threaten an individual with physical or emotional harm; and

(B) that:

(i) results in observable distress or harm to the individual; or

(ii) is of such a serious nature that a reasonable person would consider it harmful or a cause of distress.

(131) Violation--A finding by HHSC that a program provider is not or was not in compliance with a certification standard.

(132) Volunteer--A person who works for a program provider without compensation, other than reimbursement for actual expenses.

(133) Widespread--The scope of a violation that:

(A) is pervasive throughout the services provided by the program provider; or

(B) represents a systemic failure by the program provider that affects or has the potential to affect a large portion of, or all, individuals.

(134) Willfully interfering--Acting or not acting to intentionally prevent, interfere with, or impede, or to attempt to intentionally prevent, interfere with, or impede.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 1, 2023.

TRD-202302018

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: June 21, 2023

Proposal publication date: February 17, 2023

For further information, please call: (512) 438-3161

SUBCHAPTER C. CERTIFICATION STANDARDS: INDIVIDUAL'S RIGHTS

26 TAC §565.5

STATUTORY AUTHORITY

The new section 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 §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; and Texas Human Resources Code §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

§565.5.Rights of Individuals.

(a) The program provider cannot prohibit:

(1) an individual, or the legally authorized representative (LAR) on behalf of the individual, from exercising the same rights and responsibilities exercised by people without disabilities; and

(2) a LAR or family members from encouraging the individual to exercise the same rights and responsibilities exercised by people without disabilities.

(b) The program provider must develop and implement policies that ensure the individual is informed of his or her rights and can exercise his or her rights without interference, coercion, discrimination, or retaliation from the program provider. This includes the right to:

(1) manage, be trained to manage, or have assistance in managing financial affairs upon documentation of the individual's written request for assistance;

(2) access public accommodations;

(3) be informed of the requirements for participation;

(4) be informed, both orally and in writing, of all the HCS Program and CFC services available and rules pertaining to the individual's enrollment and participation in the program provider's program, including those related to the use of restraint, as well as any changes in these that occur;

(5) be informed of the individual plan of care (IPC), implementation plan, and transportation plan, including any restrictions affecting the individual's rights;

(6) participate in decisions and be informed of the reasons for decisions regarding plans for enrollment, service termination, transfer, relocation, or denial of Home and Community-based Services Program (HCS) Program or Community First Choice (CFC) services;

(7) be informed about the individual's own health, mental condition, and related progress;

(8) be informed of the name and qualifications of any person serving or treating the individual and to choose among various available service providers;

(9) receive visitors without prior notice to the program provider;

(10) have privacy in visitation with family and other visitors;

(11) make and receive telephone calls in private;

(12) send and receive sealed and uncensored mail;

(13) attend or refuse to attend religious activities;

(14) participate in developing a pre-discharge plan that addresses assistance for the individual after he or she leaves the program;

(15) be free from the use of unauthorized restraints;

(16) live in a normative residential living environment;

(17) access free public schooling according to Texas Education Code;

(18) live where the individual is within proximity of and can access treatment and services that are best suited to meet the individual's needs and abilities and enhance that individual's strengths;

(19) have a personalized IPC, implementation plan, and transportation plan based on individualized assessments that meet the individual's needs and abilities and enhance that individual's strengths;

(20) help decide what the implementation plan and transportation plan will be;

(21) be informed as to the progress or lack of progress being made in the execution of the implementation plan and transportation plan;

(22) choose from the same services that are available to all community members, including those without disabilities;

(23) be evaluated as needed, but at least annually, to determine the individual's strengths, needs, preferences, and appropriateness of the implementation plan and transportation plan;

(24) complain at any time to a staff member or service provider;

(25) receive appropriate support and assistance from a staff member or service provider to address concerns if the individual dislikes or disagrees with the services being rendered or thinks that his or her rights are being violated;

(26) live free from abuse, neglect, or exploitation in a healthful and safe environment;

(27) participate in decisions regarding the individual's living environment, including location, furnishings, personal property, other individuals residing in the residence, and moves to other residential locations;

(28) have service providers who are responsive to the individual and, at the same time, are responsible for the overall functioning of the HCS Program;

(29) have active personal assistance in exercising civil and self-advocacy rights attainment by provisions for:

(A) complaints;

(B) voter registration;

(D) advocacy services; and

(E) guardianship;

(30) receive counseling concerning the use of money;

(31) possess and to use money in personal and individualized ways or learn to do so;

(32) access all financial records regarding the individual's funds;

(33) have privacy during treatment and care of personal needs;

(34) have privacy during visits by his or her spouse if living apart;

(35) share a room when both spouses are living in the same residence;

(36) be free from serving as a source of labor when residing with persons other than family members;

(37) communicate, associate, and meet privately with any person of his or her choice, including other individuals, unless this violates the rights of another individual;

(38) participate in social, recreational, and community group activities;

(39) have his or her LAR involved in activities, including:

(A) being informed of all rights and responsibilities when the individual is enrolled in the program provider's program, as well as any changes in rights or responsibilities before they become effective;

(B) participating in the planning for HCS Program and CFC services; and

(40) be informed of the individual's option to transfer to other program providers as chosen by the individual or LAR as often as desired;

(41) complain to HHSC when the program provider's resolution of a complaint is unsatisfactory to the individual or LAR, and to be informed of the Intellectual and Developmental Disability Ombudsman telephone number to initiate complaints (1-800-252-8154); and

(42) have opportunities for leisure time activities, vacation periods, religious observances, holidays, and days off, consistent with the individual's choice and routines of other members of the community.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 1, 2023.

TRD-202302019

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: June 21, 2023

Proposal publication date: February 17, 2023

For further information, please call: (512) 438-3161

SUBCHAPTER D. CERTIFICATION STANDARDS: STAFF MEMBER AND SERVICE PROVIDER REQUIREMENTS

26 TAC §565.7, §565.9

STATUTORY AUTHORITY

§565.9.Program Provider Requirements.

(a) The program provider must ensure the continuous availability of trained and qualified service providers to deliver the required services, as determined by the individual's needs and characteristics.

(b) The program provider must:

(1) comply with 40 Texas Administrative Code (TAC) §49.304 (relating to Background Checks);

(2) comply with 40 TAC §49.312 (relating to Personal Attendants), including when the service provider of supported home living or CFC personal assistance services/habilitation (CFC PAS/HAB) is employed by or contracts with a contractor of a program provider;

(3) obtain the criminal history record of the potential staff member or potential contractor from the Texas Department of Public Safety directly or through a private agency before hiring or contracting with the potential staff member;

(4) not employ or contract with a potential staff member, service provider, or volunteer who:

(A) has been convicted of an offense listed, and for the time periods set forth, in Texas Health and Safety Code §250.006;

(B) is a registered sex offender; or

(5) search the following registries before hire or execution of a contract and every 12 months thereafter to determine if a staff member or service provider is eligible for employment:

(A) the Employee Misconduct Registry; and

(B) the Nurse Aide Registry;

(6) search the following registries before hire or execution of a contract and every month thereafter to determine if an employee or contractor is eligible for employment:

(A) the List of Excluded Individuals and Entities maintained by the United States Department of Health and Human Services; and

(B) the List of Excluded Individuals and Entities maintained by the Texas Health and Human Services Commission (HHSC) Office of Inspector General; and

(7) not hire or continue employment for a staff member or service provider who is listed on:

(A) the Employee Misconduct Registry as unemployable;

(B) the Nurse Aide Registry as revoked or suspended;

(D) the List of Excluded Individuals and Entities maintained by Health and Human Services office of Inspector General or by HHSC Office of Inspector General.

(1) that ensure only staff members and service providers with a valid driver's license and insurance transport individuals; and

(2) are revised if a shortcoming is identified.

(d) If the service provider of supported home living or CFC PAS/HAB is employed by or contracts with a contractor of a program provider, the program provider must ensure that the contractor complies with subsection (b)(2) of this section as if the contractor were the program provider.

(e) The program provider must:

(1) employ or contract with a person or entity of the individual's or legally authorized representative's (LAR's) choice to provide a Home and Community-based Services Program or CFC service to the individual if that person or entity:

(A) is qualified to provide the service; and

(B) is willing to contract with or be employed by the program provider to provide the service in accordance with this subchapter; or

(2) have and document good cause not to employ or contract with the person or entity of the individual's or LAR's choice.

(f) If a program provider contracts with a person or entity to provide transition assistance services (TAS), the person or entity must have a contract to provide TAS in accordance with 40 TAC Chapter 49 (relating to Contracting for Community Services).

(g) The program provider must create and implement a policy that prevents:

(1) conflicts of interest between the program provider, a staff member, or a service provider and an individual, such as the acceptance of payment for goods or services (except payment for room and board) from which the program provider, staff member, or service provider could financially benefit;

(2) financial impropriety toward an individual including:

(A) unauthorized disclosure of information related to an individual's finances; and

(B) any purchase of goods that are not requested for the individual, cannot be used by the individual, or are not intended for the individual's use;

(3) abuse, neglect, or exploitation of an individual;

(4) damage to, or prevention of an individual's access to, the individual's possessions; and

(5) threats of the actions described in paragraphs (2) - (4) of this subsection.

(h) A program provider must comply with 42 United States Code §1396a(w), regarding requirements about advance directives.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 1, 2023.

TRD-202302020

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: June 21, 2023

Proposal publication date: February 17, 2023

For further information, please call: (512) 438-3161

SUBCHAPTER E. CERTIFICATION STANDARDS: SERVICE DELIVERY

26 TAC §§565.11, 565.13, 565.15, 565.17, 565.19, 565.21

STATUTORY AUTHORITY

§565.11.Service Delivery.

(a) The program provider must:

(1) serve an eligible applicant who has selected the program provider unless the program provider's enrollment has reached its service capacity as identified in the Texas Health and Human Services Commission (HHSC) data system;

(2) serve an eligible applicant without regard to age, sex, race, or level of disability;

(3) provide or obtain as needed and without delay all Home and Community-based Services Program (HCS) Program and Community First Choice (CFC) services for an individual;

(4) maintain a system of delivering HCS Program and CFC services that is continuously responsive to changes in the individual's personal goals, condition, abilities, and needs as identified by the service planning team;

(5) ensure that each applicant or individual, or legally authorized representative (LAR), chooses where the individual or applicant will reside from available options consistent with the applicant's or individual's needs;

(6) ensure that an individual's rights as identified in §565.5 of this chapter (relating to Rights of Individuals) are not violated, unless contraindications are documented with justification in a Behavior Support Plan;

(7) notify the service coordinator if a change in an individual's condition necessitates a change in residential, educational, or work settings;

(8) inform appropriate staff members, service providers, and the service coordinator when a circumstance or event occurs in an individual's life or a change to an individual's condition affects the provision of services to the individual;

(9) notify the service coordinator if the program provider has reason to believe that an individual is no longer eligible for HCS Program services or CFC services or an individual or LAR has requested termination of all HCS Program services or all CFC services;

(10) ensure that the individual plan of care (IPC) for each individual:

(A) is renewed or revised in accordance with §263.302 of this title (relating to Renewal and Revision of an IPC); and

(B) is authorized by the Health and Human Services Commission in accordance with §263.303 of this title (relating to HHSC Review of an IPC);

(11) ensure that HCS Program and CFC services identified in the individual's implementation plan and transportation plan are provided in an individualized manner and are based on the results of assessments of the individual's and the family's strengths, the individual's personal goals, the family's goals for the individual, and the individual's needs rather than which services are available;

(12) ensure that each individual's progress or lack of progress toward desired outcomes is documented in observable, measurable, or outcome-oriented terms;

(13) ensure that individuals who perform work for the program provider are paid on the basis of their production or performance and at a wage level commensurate with that paid to persons who are without disabilities and who would otherwise perform that work, and that compensation is based on local, state, and federal regulations, including Department of Labor regulations, as applicable;

(14) ensure that individuals who produce marketable goods and services in habilitation training programs are paid at a wage level commensurate with that paid to persons who are without disabilities and who would otherwise perform that work. Compensation is based on requirements contained in the Fair Labor Standards Act, which include:

(A) accurate recordings of individual production or performance;

(B) valid and current time studies or monitoring as appropriate; and

(15) ensure that individuals provide no training, supervision, or care to other individuals unless they are qualified and compensated in accordance with local, state, and federal regulations, including Department of Labor regulations;

(16) ensure that adaptive aids are provided in accordance with the individual's person-directed plan (PDP), IPC, implementation plan, and Appendix C of the HCS Program waiver application, approved by the Centers for Medicare and Medicaid Services (CMS) and found on the HHSC website, and include the full range of lifts, mobility aids, control switches/pneumatic switches and devices, environmental control units, medically necessary supplies, and communication aids and repair and maintenance of the aids, as determined by the individual's needs;

(17) ensure the coordination and compatibility of HCS Program and CFC services with non-HCS Program services and non-CFC services together with an individual's service coordinator;

(18) ensure that an individual has a current implementation plan;

(19) ensure professional therapies:

(A) are provided in accordance with the individual's PDP, IPC, implementation plan, and Appendix C of the HCS Program waiver application approved by CMS and found on the HHSC website:

(i) audiology services;

(ii) speech/language pathology services;

(iii) occupational therapy services;

(iv) physical therapy services;

(v) dietary services;

(vi) social work services;

(vii) behavioral support; and

(viii) cognitive rehabilitation therapy; and

(B) if the service planning team determines that an individual may need cognitive rehabilitation therapy, the program provider:

(i) in coordination with the service coordinator, assists the individual in obtaining, in accordance with the Medicaid State Plan, a neurobehavioral or neuropsychological assessment and plan of care from a qualified professional as a non-HCS Program service; and

(ii) use a qualified professional as described in §565.7 of this chapter (relating to Staff Member and Service Provider Requirements) to provide and monitor the provision of cognitive rehabilitation therapy to the individual in accordance with the plan of care described in clause (i) of this subparagraph;

(20) ensure that individualized skills and socialization is provided in accordance with the individual's PDP, IPC, implementation plan, and Appendix C of the HCS Program waiver application approved by CMS and found on the HHSC website;

(21) ensure that dental treatment is provided in accordance with the individual's PDP, IPC, implementation plan, and Appendix C of the HCS Program waiver application approved by CMS and found on the HHSC website including:

(A) emergency dental treatment;

(B) preventive dental treatment;

(D) orthodontic dental treatment, excluding cosmetic orthodontia;

(22) ensure that minor home modifications are provided in accordance with the individual's PDP, IPC, implementation plan, and Appendix C of the HCS Program waiver application approved by CMS and found on the HHSC website but are limited to the following categories:

(A) purchase and repair of wheelchair ramps;

(B) modifications to bathroom facilities;

(D) specialized accessibility and safety adaptations or additions; and

(E) repair and maintenance of minor home modifications not covered by a warranty;

(23) ensure that supported home living:

(A) is available only to an individual who is not receiving:

(i) host home/companion care;

(ii) supervised living; or

(ii) residential support; and

(B) is available to an individual who is receiving foster care services from DFPS;

(24) ensure that supported home living is provided in accordance with the individual's PDP, IPC, implementation plan, transportation plan, and Appendix C of the HCS Program waiver application approved by CMS and found on the HHSC website and includes the following elements:

(A) direct personal assistance with activities of daily living (grooming, eating, bathing, dressing, and personal hygiene);

(B) assisting with meal planning and preparation;

(D) securing transportation;

(E) assisting with housekeeping;

(F) assisting with ambulation and mobility;

(G) reinforcing professional therapy activities;

(H) assisting with medications and the performing tasks delegated by a registered nurse (RN);

(I) supervising of individuals' safety and security;

(J) facilitating inclusion in community activities, use of natural supports, social interaction, participation in leisure activities, and development of socially valued behaviors; and

(K) habilitation, exclusive of individualized skills and socialization;

(25) ensure that HCS host home/companion care is provided:

(A) by a host home/companion care provider who lives in the residence in which no more than three individuals or other persons receiving similar services are living at any one time; and

(B) in a residence in which the program provider does not hold a property interest;

(26) ensure that host home/companion care is provided in accordance with the individual's PDP, IPC, implementation plan, and Appendix C of the HCS Program waiver application approved by CMS and found on the HHSC website and includes the following elements:

(A) direct personal assistance with activities of daily living (grooming, eating, bathing, dressing, and personal hygiene);

(B) assisting with meal planning and preparation;

(D) assisting with housekeeping;

(E) assisting with ambulation and mobility;

(F) reinforcing professional therapy activities;

(G) assisting with medications and the performance of tasks delegated by an RN;

(H) supervising of safety and security;

(I) facilitating inclusion in community activities, use of natural supports, social interaction, participation in leisure activities, and development of socially valued behaviors; and

(J) habilitation, exclusive of individualized skills and socialization;

(27) ensure that supervised living is provided:

(A) in a four-person residence that is approved in accordance with §565.23(i) of this chapter (relating to Residential Requirements) or a three-person residence;

(B) by a service provider who provides services and supports as needed by the individuals residing in the residence and is present in the residence and able to respond to the needs of the individuals during normal sleeping hours; and

(C) only with approval by the HHSC commissioner or designee for the initial six months and one six-month extension and only with approval by the HHSC Executive Commissioner after such 12-month period, if provided to an individual under 22 years of age;

(28) ensure that supervised living is provided in accordance with the individual's PDP, IPC, implementation plan, and Appendix C of the HCS Program waiver application approved by CMS and found on the HHSC website and includes the following elements:

(A) direct personal assistance with activities of daily living (grooming, eating, bathing, dressing, and personal hygiene);

(B) assisting with meal planning and preparation;

(D) assisting with housekeeping;

(E) assisting with ambulation and mobility;

(F) reinforcing professional therapy activities;

(G) assisting with medications and the performance of tasks delegated by an RN;

(H) supervising of individuals' safety and security;

(I) facilitating inclusion in community activities, use of natural supports, social interaction, participation in leisure activities, and development of socially valued behaviors; and

(J) habilitation, exclusive of individualized skills and socialization;

(29) ensure that residential support is provided:

(A) in a four-person residence that is approved in accordance with §565.23(i) of this chapter or in a three-person residence;

(B) by a service provider who is present in the residence and awake whenever an individual is present in the residence;

(C) by service providers assigned on a daily shift schedule that includes at least one complete change of service providers each day; and

(D) only with approval by the HHSC commissioner or designee for the initial six months and one six-month extension and only with approval by the HHSC Executive Commissioner after such 12-month period, if provided to an individual under 22 years of age;

(30) ensure that residential support is provided in accordance with the individual's PDP, IPC, implementation plan, and Appendix C of the HCS Program waiver application approved by CMS and found on the HHSC website, and includes the following elements:

(A) direct personal assistance with activities of daily living (grooming, eating, bathing, dressing, and personal hygiene);

(B) assisting with meal planning and preparation;

(D) assisting with housekeeping;

(E) assisting with ambulation and mobility;

(F) reinforcing professional therapy activities;

(G) assisting with medications and the performance of tasks delegated by an RN;

(H) supervising of individuals' safety and security;

(I) facilitating inclusion in community activities, use of natural supports, social interaction, participation in leisure activities, and development of socially valued behaviors; and

(J) habilitation, exclusive of individualized skills and socialization;

(31) if making a recommendation to the service planning team that the individual receive residential support, document the reasons for the recommendation, which may include:

(A) the individual's medical condition;

(B) a behavior displayed by the individual that poses a danger to the individual or to others; or

(32) ensure that respite is available on a 24-hour increment or any part of that increment to individuals living in their family homes;

(33) ensure that respite is provided in accordance with the individual's PDP, IPC, implementation plan, and Appendix C of the HCS Program waiver application approved by CMS and found on the HHSC website; and:

(A) includes:

(i) training in self-help and independent living skills;

(ii) providing room and board when respite is provided in a setting other than the individual's normal residence;

(iii) assisting with:

(I) ongoing provision of needed waiver services; and

(II) securing and providing transportation; and

(B) is only provided:

(i) to individuals who are not receiving residential support, supervised living, or host home/companion care; and

(ii) when the unpaid caregiver is temporarily unavailable to provide supports;

(34) provide respite in the residence of an individual or in other locations, including residences in which host home/companion care, supervised living, or residential support is provided or in a respite facility or camp, that:

(A) meets HCS Program requirements and is an environment that ensures the health and safety of the individual; and

(B) if respite is provided:

(i) in the residence of another individual, the program provider must obtain permission from that individual or LAR and ensure that the respite visit will cause no threat to the health, safety, or welfare of either individual;

(ii) in a respite facility, the program provider must obtain written approval from the local fire authority having jurisdiction stating that the facility and its operation meet the local fire ordinances before initiating services in the facility if more than three individuals receive services in the facility at any one time; or

(iii) in a camp setting, the program provider must ensure the camp is accredited by the American Camp Association;

(iv) in a home and community-based setting, the setting must comply with §263.501(b) of this title (relating to Requirements for Home and Community-Based Settings);

(35) ensure that employment assistance:

(A) is provided to an individual to help the individual locate competitive employment in the community;

(B) consists of a service provider:

(i) identifying an individual's employment preferences, job skills, and requirements for a work setting and work conditions;

(ii) locating prospective employers offering employment compatible with an individual's identified preferences, skills, and requirements;

(iii) contacting a prospective employer on behalf of an individual and negotiating the individual's employment;

(iv) transporting an individual to help the individual locate competitive employment in the community; and

(v) participating in service planning team meetings;

(C) is provided in accordance with an individual's PDP, IPC, implementation plan, and with Appendix C of the HCS Program waiver application approved by CMS and found on the HHSC website;

(D) is not provided to an individual with the individual present at the same time that respite, supported home living, individualized skills and socialization, supported employment, or CFC personal assistance services/habilitation (CFC PAS/HAB) is provided; and

(E) does not include using Medicaid funds paid by HHSC to the program provider for incentive payments, subsidies, or unrelated vocational training expenses, such as:

(i) paying an employer:

(I) to encourage the employer to hire an individual; or

(II) for supervision, training, support, or adaptations for an individual that the employer typically makes available to other workers without disabilities filling similar positions in the business; or

(ii) paying an individual:

(I) as an incentive to participate in employment assistance activities; or

(II) for expenses associated with the start-up costs or operating expenses of the individual's business;

(36) ensure that supported employment:

(A) is assistance provided to an individual:

(i) who, because of a disability, requires intensive, ongoing support to be self-employed, work from home, or perform in a work setting at which persons without disabilities are employed;

(ii) in order for the individual to sustain competitive employment; and

(iii) in accordance with the individual's PDP, IPC, implementation plan, and Appendix C of the HCS Program waiver application approved by CMS and found on the HHSC website;

(B) consists of a service provider:

(i) making employment adaptations, supervising, and providing training related to an individual's assessed needs;

(ii) transporting an individual to support the individual to be self-employed, work from home, or perform in a work setting; and

(iii) participating in service planning team meetings;

(C) is not provided to an individual with the individual present at the same time that respite, supported home living, individualized skills and socialization, employment assistance, or CFC PAS/HAB is provided; and

(D) does not include:

(i) sheltered work or other similar types of vocational services furnished in specialized facilities; or

(ii) using Medicaid funds paid by HHSC to the program provider for incentive payments, subsidies, or unrelated vocational training expenses such as:

(I) paying an employer:

(-a-) to encourage the employer to hire an individual; or

(-b-) to supervise, train, support, or make adaptations for an individual that the employer typically makes available to other workers without disabilities filling similar positions in the business; or

(II) paying an individual:

(-a-) as an incentive to participate in supported employment activities; or

(-b-) for expenses associated with the start-up costs or operating expenses of the individual's business;

(37) ensure that CFC PAS/HAB is provided in accordance with the individual's PDP, IPC, and implementation plan;

(38) ensure that CFC support management is provided to an individual or LAR if:

(A) the individual is receiving CFC PAS/HAB; and

(B) the individual or LAR requests to receive CFC support management;

(39) inform the service coordinator of changes related to an individual's residential setting that do not require a change to the individual's IPC;

(40) maintain current information in the HHSC data system about the individual and the individual's LAR, including:

(A) the individual's full name, address, location code, and phone number; and

(B) the LAR's full name, address, and phone number;

(41) maintain a single record related to HCS Program and CFC services provided to an individual for an IPC year that includes:

(A) the IPC;

(B) the PDP and, if CFC PAS/HAB is included on the PDP, the completed HHSC HCS/TxHmL CFC PAS/HAB Assessment form;

(D) a behavior support plan, if one has been developed;

(E) a transportation plan, if one is required;

(F) documentation that describes the individual's progress or lack of progress on the implementation plan;

(G) documentation that describes any changes to an individual's personal goals, condition, abilities, or needs;

(H) the Intellectual Disability/Related Conditions Assessment (ID/RC Assessment);

(I) documentation supporting the recommended level of need, including the Inventory for Client and Agency Planning booklet, assessments and interventions by qualified professionals, and time sheets of service providers;

(J) results and recommendations from individualized assessments that support the individual's current need for each service included in the IPC;

(K) documentation concerning any use of restraint as described in §565.33(a)(2) and (3) of this chapter (relating to Restraints);

(L) documentation related to the suspension of an individual's HCS Program services or CFC services;

(M) for an individual under 22 years of age, a copy of the permanency plan; and

(N) documentation required by subsection §565.17(a)(2) of this subchapter (relating to Pre-enrollment Minor Home Modification) and subsection §565.21(a)(2) of this subchapter (relating to Transitional Assistance Service (TAS));

(42) upon request by the service coordinator:

(A) permit the service coordinator access to the record that is required by paragraph (41) of this subsection; and

(B) provide the service coordinator a legible copy, including an electronic copy, of a document in the record at no charge to the service coordinator;

(43) provide a copy of the following documents to the service coordinator:

(A) an individual's IPC; and

(B) an individual's ID/RC Assessment;

(44) if a physician delegates a medical act to an unlicensed service provider in accordance with Texas Occupations Code Chapter 157, and the program provider has concerns about the health or safety of the individual in performance of the medical act, communicate the concern to the delegating physician and take additional steps as necessary to ensure the health and safety of the individual;

(45) for an individual receiving host home/companion care, residential support, or supervised living, ensure that the individual or LAR is involved in planning the individual's residential relocation, except in the case of an emergency;

(46) for an HCS Program or CFC service identified on the PDP as critical to meeting the individual's health and safety:

(A) develop a service backup plan that:

(i) contains the name of the critical service;

(ii) specifies the time period in which an interruption to the critical service would result in an adverse effect to the individual's health or safety; and

(iii) in the event of a service interruption resulting in an adverse effect, as described in clause (ii) of this subparagraph, describe the actions the program provider will take to ensure the individual's health and safety;

(B) ensure that:

(i) if the action in the service backup plan required by subparagraph (A) of this paragraph identifies a natural support, that the natural support receives pertinent information about the individual's needs and can protect the individual's health and safety; and

(ii) a person identified in the service backup plan, if paid to provide the service, meets the qualifications described in this subchapter; and

(i) discuss the implementation of the service backup plan with the individual and the service providers or natural supports identified in the service backup plan to determine whether the plan was effective;

(ii) document whether the plan was effective; and

(iii) revise the plan if the program provider determines the plan was ineffective;

(47) for an applicant 21 years of age or older who is residing in a nursing facility and enrolling in the HCS Program:

(A) participate as a member of the service planning team, which includes attending service planning team meetings scheduled by the service coordinator;

(B) assist in the implementation of the applicant's transition plan as described in the plan; and

(C) be physically present for the pre-move site review and assist the service coordinator during the review as requested; and

(48) for 365 calendar days after an individual 21 years of age or older has enrolled in the HCS Program from a nursing facility or has enrolled in the HCS Program as a diversion from admission to a nursing facility:

(A) be physically present for each post-move monitoring visit and assist the service coordinator during the visit as requested;

(B) assist in the implementation of the individual's transition plan as described in the plan;

(C) participate as a member of the service planning team, which includes attending service planning team meetings scheduled by the service coordinator; and

(D) within one calendar day after becoming aware of an event or condition that may put the individual at risk of admission or readmission to a nursing facility, notify the service planning team of the event or condition.

(b) A program provider may suspend HCS Program services or CFC services because an individual is temporarily admitted to a setting described in §263.705(a) of this title (relating to Suspension of HCS Program Services and CFC Services).

(1) If a program provider suspends HCS Program services or CFC services, the program provider must:

(A) notify HHSC of the suspension by entering data in the HHSC data system in accordance with HHSC instructions; and

(B) notify the service coordinator of the suspension within one business day after services are suspended.

(2) A program provider may not suspend HCS Program services or CFC services for more than 270 calendar days without approval from HHSC as described in §263.705(h) of this title.

§565.13.Nursing.

(a) A program provider must:

(1) ensure that nursing is provided in accordance with the individual's person-directed plan (PDP); individual plan of care (IPC); implementation plan; Texas Occupations Code Chapter 301 (Nursing Practice Act); 22 Texas Administrative Code (TAC) Chapter 217 (relating to Licensure, Peer Assistance and Practice); 22 TAC Chapter 224 (relating to Delegation of Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel for Clients with Acute Conditions or in Acute Care Environments); 22 TAC Chapter 225 (relating to RN Delegation to Unlicensed Personnel and Tasks Not Requiring Delegation in Independent Living Environments for Clients with Stable and Predictable Conditions); and Appendix C of the HCS Program waiver application approved by the Centers for Medicare and Medicaid Services (CMS) and found on the Texas Health and Human Services Commission (HHSC) website, and consists of performing health care activities and monitoring the individual's health conditions;

(2) this includes:

(A) administering medication;

(B) monitoring the individual's use of medications;

(C) monitoring health risks, data, and information, including ensuring that an unlicensed service provider is performing only those nursing tasks identified from a nursing assessment;

(D) assisting the individual to secure emergency medical services;

(E) making referrals for appropriate medical services;

(F) performing health care procedures ordered or prescribed by a physician or medical practitioner and required by standards of professional practice or law to be performed by a registered nurse (RN) or licensed vocational nurse (LVN);

(G) delegating nursing tasks to an unlicensed service provider and supervising the performance of those tasks in accordance with state law and rules;

(H) teaching an unlicensed service provider about the specific health needs of an individual;

(I) performing an assessment of an individual's health condition;

(J) ensuring a registered nurse (RN):

(i) performs a nursing assessment for each individual:

(I) before an unlicensed service provider performs a nursing task for the individual, unless a physician has delegated the task as a medical act under Texas Occupations Code Chapter 157, as documented by the physician; and

(II) as determined necessary by an RN, including if the individual's health needs change;

(ii) documents information from performance of a nursing assessment;

(iii) if an individual is receiving a service through the consumer directed services (CDS) option, provides a copy of the documentation described in clause (ii) of this subparagraph to the individual's service coordinator;

(iv) develops the nursing service portion of an individual's implementation plan, which includes developing a plan and schedule for monitoring and supervising delegated nursing tasks; and

(v) makes and documents decisions related to the delegation of a nursing task to an unlicensed service provider; and

(K) in accordance with Texas Human Resources Code Chapter 161:

(i) allowing an unlicensed service provider to provide administration of medication to an individual without the delegation or oversight of an RN if:

(I) an RN has performed a nursing assessment and based on the results of the assessment, determined that the individual's health permits the administration of medication by an unlicensed service provider;

(II) the medication is:

(-a-) an oral medication;

(-b-) a topical medication; or

(-c-) a metered dose inhaler;

(III) the medication is administered to the individual for a predictable or stable condition; and

(IV) the unlicensed service provider has been:

(-a-) trained by an RN or a licensed vocational nurse (LVN) under the direction of an RN regarding the proper administration of medication; or

(-b-) determined to be competent by an RN or LVN under the direction of an RN regarding proper administration of medication, including through a demonstration of proper technique by the unlicensed service provider; and

(ii) ensuring that an RN or LVN under the supervision of an RN reviews the administration of medication to an individual by an unlicensed service provider at least annually and after any significant change in the individual's condition.

(b) A program provider may determine that an individual does not require a nursing assessment if:

(1) nursing services are not on the individual's IPC and the program provider has determined that no nursing task will be performed by an unlicensed service provider as documented on HHSC form "Nursing Task Screening Tool"; or

(2) a nursing task will be performed by an unlicensed service provider and a physician has delegated the task as a medical act under Texas Occupations Code Chapter 157, as documented by the physician.

(c) If an individual or LAR refuses a nursing assessment described in subsection (a)(1)(J)(i) of this section, the program provider must not:

(1) provide nursing services to the individual; or

(2) provide host home/companion care, residential support, supervised living, supported home living, respite, employment assistance, supported employment, individualized skills and socialization, or CFC PAS/HAB to the individual unless:

(A) an unlicensed service provider does not perform nursing tasks in the provision of the service; and

(B) the program provider determines that it can ensure the individual's health, safety, and welfare in the provision of the service.

(d) If an individual or LAR refuses a nursing assessment and the program provider determines that the program provider cannot ensure the individual's health, safety, and welfare in the provision of a service as described in subsection (c) of this section, the program provider must:

(1) immediately notify the individual or LAR and the individual's service coordinator, in writing, of the determination; and

(2) include in the notification required by paragraph (1) of this subsection the reasons for the determination and the services affected by the determination.

(e) If notified by the service coordinator that the individual or LAR refuses the nursing assessment after the discussion with the service coordinator as described in §263.901(e)(22) of this title (relating to LIDDA Requirements for Providing Service Coordination in the HCS Program), the program provider must immediately send the written notification described in subsection (d) of this section to HHSC.

§565.15.Individuals under the Age of 22.

The program provider must:

(1) request from and encourage the parent or legally authorized representative (LAR) of an individual under 22 years of age receiving supervised living or residential support to provide the program provider with the following information:

(A) the parent's or LAR's:

(i) name;

(ii) address;

(iii) telephone number;

(iv) driver license number and state of issuance or personal identification card number issued by the Department of Public Safety; and

(v) place of employment and the employer's address and telephone number;

(B) name, address, and telephone number of a relative of the individual or other person whom the Texas Health and Human Services Commission (HHSC) or the program provider may contact in an emergency situation, a statement indicating the relationship between that person and the individual, and at the parent's or LAR's option:

(i) that person's driver license number and state of issuance or personal identification card number issued by the Department of Public Safety; and

(ii) the name, address, and telephone number of that person's employer; and

(i) notify the program provider of any changes to the contact information submitted; and

(ii) make reasonable efforts to participate in the individual's life and in planning activities for the individual;

(2) inform the parent or LAR that if the information described in paragraph (1) of this subsection is not provided or is not accurate and the service coordinator and HHSC are unable to locate the parent or LAR as described in §263.902(e)(33) of this title (relating to Permanency Planning) and §263.903 of this title (relating to Referral from HHSC to DFPS), HHSC refers the case to DFPS;

(3) for an individual under 22 years of age receiving supervised living or residential support:

(A) make reasonable accommodations to promote the participation of the LAR in all planning and decision-making regarding the individual's care, including participating in meetings conducted by the program provider;

(B) take the following actions to assist a local intellectual and developmental disability authority (LIDDA) in conducting permanency planning:

(i) cooperate with the LIDDA responsible for conducting permanency planning by:

(I) allowing access to an individual's records or providing other information in a timely manner, as requested by the local authority or HHSC;

(II) participating in meetings to review the individual's permanency plan; and

(III) identifying, in coordination with the individual's LIDDA, activities, supports, and services that can be provided by the family, LAR, program provider, or the LIDDA to prepare the individual for an alternative living arrangement;

(ii) encourage regular contact between the individual and the LAR and, if desired by the individual and LAR, between the individual and advocates and friends in the community to continue supportive and nurturing relationships;

(iii) keep a copy of the individual's current permanency plan in the individual's record; and

(iv) refrain from providing the LAR with inaccurate or misleading information regarding the risks of moving the individual to another institutional setting or to a community setting;

(C) if an emergency situation occurs, attempt to notify the parent or LAR and service coordinator as soon as the emergency situation allows and request a response from the parent or LAR; and

(D) if the program provider determines it is unable to locate the parent or LAR, notify the service coordinator of such determination.

§565.17.Pre-enrollment Minor Home Modification.

The program provider must provide pre-enrollment minor home modifications and a pre-enrollment minor home modifications assessment in accordance with this subsection.

(1) The program provider must:

(A) complete a pre-enrollment minor home modifications assessment in accordance with the Home and Community-based Services (HCS) Program Billing Requirements;

(B) provide pre-enrollment minor home modifications to an applicant for whom the program provider receives from the service coordinator a completed Pre-enrollment Minor Home Modifications/Assessments Authorization form authorized by the Texas Health and Human Services Commission (HHSC), as described in §263.104(k)(8)(C) of this title (relating to Process for Enrollment of Applicants);

(D) provide the pre-enrollment minor home modifications for the applicant within the monetary amount identified on the form;

(E) ensure pre-enrollment minor home modifications and pre-enrollment minor home modifications assessments are provided in accordance with Appendix C of the HCS Program waiver application approved by the Centers for Medicare and Medicaid Services (CMS) and found on the HHSC website; and

(F) complete the pre-enrollment minor home modifications at least two days before the date of the applicant's discharge from the nursing facility, intermediate care facility for individuals with an intellectual disability or related conditions (ICF/IID), or general residential operation (GRO) unless the delay in completion is beyond the control of the program provider.

(2) If the program provider does not complete pre-enrollment minor home modifications in accordance with paragraph (1) of this subsection, the program provider must:

(A) document:

(i) a description of the pending modifications;

(ii) the reason for the delay;

(iii) the date the program provider anticipates it will complete the pending modifications or specific reasons why the program provider cannot anticipate a completion date; and

(iv) a description of the program provider's ongoing efforts to complete the modifications; and

(B) at least two days before the date of the applicant's discharge from the nursing facility, ICF/IID, or GRO, provide the information described in subparagraph (A) of this paragraph to:

(i) the applicant or legally authorized representative (LAR); and

(ii) the service coordinator.

(3) Within one business day after completion of the pre-enrollment minor home modifications, the program provider must notify the service coordinator and the applicant or LAR that the modifications have been completed.

§565.19.Community First Choice (CFC) Emergency Response Systems (ERS) Services.

CFC ERS must be provided in accordance with this section.

(1) A program provider must ensure that CFC ERS is provided only to an individual who:

(A) is not receiving host home/companion care, supervised living, or residential support;

(B) lives alone, who is alone for significant parts of the day, or has no regular caregiver for extended periods of time; and

(2) A program provider must ensure that CFC ERS is provided in accordance with the individual's person-directed plan, individual plan of care (IPC), and implementation plan.

(3) A program provider must ensure that CFC ERS equipment is installed within 14 business days after one of the following dates, whichever is later:

(A) the date the Texas Health and Human Services Commission authorizes the proposed IPC that includes CFC ERS; or

(B) the effective date of the individual's IPC as determined by the service planning team.

(4) At the time CFC ERS equipment is installed, a program provider must ensure that:

(A) the equipment is installed in accordance with the manufacturer's installation instructions;

(B) an initial test of the equipment is made;

(D) the individual is trained on the use of the equipment, including:

(i) demonstrating how the equipment works; and

(ii) having the individual activate an alarm call;

(E) an explanation is given to the individual that the individual must:

(i) participate in a system check each month; and

(ii) contact the CFC ERS provider if:

(I) the individual's telephone number or address changes; or

(II) one or more of the individual's responders change; and

(F) the individual is informed that a responder, in response to an alarm call, may forcibly enter the individual's home if necessary.

(5) A program provider must ensure that the date and time of the CFC ERS equipment installation and compliance with the requirements in paragraphs (3) and (4) of this section are documented in the individual's record.

(6) A program provider must ensure that, on or before the date CFC ERS equipment is installed:

(A) an attempt is made to obtain from an individual, the names and telephone numbers of at least two responders, such as a relative or neighbor;

(B) public emergency personnel:

(i) are designated as a second responder if the individual provides the name of only one responder; or

(ii) are designated as the sole responder if the individual does not provide the names of any responders; and

(7) At least once during each calendar month a program provider must ensure that a system check is conducted on a date and time agreed to by the individual.

(8) A program provider must ensure that the date, time, and result of the system check is documented in the individual's record.

(9) If, because of the system check:

(A) the equipment is working properly but the individual is unable to successfully activate an alarm call, the program provider must ensure that a request is made of the service coordinator to hold a service planning team meeting to determine if CFC ERS meets the individual's needs; or

(B) the equipment is not working properly, the program provider must ensure that, within three calendar days of the system check, the equipment is repaired or replaced.

(10) If a system check is not conducted in accordance with paragraph (7) of this section, the program provider must ensure that:

(A) the failure to comply is because of good cause; and

(B) the good cause is documented in the individual's record.

(11) A program provider must ensure that an alarm call is responded to 24 hours a day, seven days a week.

(12) A program provider must ensure that, if an alarm call is made, the CFC ERS provider:

(A) within 60 seconds of the alarm call, attempts to contact the individual to determine if an emergency exists;

(B) immediately contacts a responder after attempting to contact the individual, if:

(i) the CFC ERS provider confirms there is an emergency; or

(ii) the CFC ERS provider is unable to communicate with the individual; and

(i) the name of the individual;

(ii) the date and time of the alarm call, recorded in hours, minutes, and seconds;

(iii) the response time, recorded in seconds;

(iv) the time the individual was called in response to the alarm call, recorded in hours, minutes, and seconds;

(v) the name of the contacted responder, if applicable;

(vi) a brief description of the reason for the alarm call; and

(vii) if the reason for the alarm call is an emergency, a statement of how the emergency was resolved.

(13) If an alarm call results in a responder being dispatched to the individual's home for an emergency, the program provider must ensure that:

(A) the service coordinator receives written notice of the alarm call within one business day after the alarm call;

(B) if the CFC ERS provider is a contracted provider, the program provider receives written notice from the contracted provider within one business day after the alarm call; and

(C) the written notices required by subparagraphs (A) and (B) of this paragraph are maintained in the individual's record.

(14) A program provider must ensure that, if an equipment failure occurs, other than during a system check required by paragraph (7) of this section:

(A) the individual is informed of the equipment failure; and

(B) the equipment is replaced within one business day after the failure becomes known by the CFC ERS provider.

(15) If an individual is not informed of the equipment failure and the equipment is not replaced in compliance with paragraph (14) of this section, the program provider must ensure that:

(A) the failure to comply is because of good cause; and

(B) as soon as possible, the individual is informed of the equipment failure and the equipment is replaced.

(16) A program provider must ensure that, if the CFC ERS equipment registers five or more "low battery" signals in a 72-hour period:

(A) a visit to an individual's home is made to conduct a system check within five business days after the low battery signals occur; and

(B) if the battery is defective, the battery is replaced during the visit.

(17) A program provider must ensure that, if a system check or battery replacement is not made in accordance with paragraph (16) of this section:

(A) the failure to comply is because of good cause; and

(B) as soon as possible, the program provide makes a system check or battery replacement.

(18) A program provider must document in an individual's record:

(A) the date the equipment failure or low battery signal became known by the CFC ERS provider;

(B) the equipment or subscriber number;

(D) the date the equipment or battery was repaired or replaced; and

(E) the good cause for failure to comply as described in paragraphs (15)(A) and (17)(A) of this section.

§565.21.Transitional Assistance Service (TAS).

The program provider must provide TAS in accordance with this section.

(1) The program provider must:

(A) provide TAS to an applicant for whom the program provider receives from the service coordinator a completed Form 8604, Transition Assistance Services (TAS) Assessment and Authorization authorized by HHSC, as described in §263.104(k)(6)(C) of this title (relating to Process for Enrollment of Applicants);

(B) purchase TAS for the applicant within the monetary amount identified on the form;

(D) ensure TAS is provided in accordance with the individual's person-directed plan and Appendix C of the HCS Program waiver application approved by the Centers for Medicare and Medicaid and found on the HHSC website; and

(E) complete the delivery of TAS at least two days before the date of the applicant's discharge from the nursing facility, ICF/IID, or GRO unless the delay in completion is beyond the control of the program provider.

(2) If the program provider does not deliver TAS in accordance with paragraph (1) of this section, the program provider must:

(A) document the following:

(i) a description of the pending TAS;

(ii) the reason for the delay;

(iii) the date the program provider anticipates it will deliver the pending TAS or specific reasons why the program provider cannot anticipate a delivery date; and

(iv) a description of the program provider's ongoing efforts to deliver the TAS; and

(B) at least two days before the date of the applicant's discharge from the nursing facility, ICF/IID, or GRO, provide the information described in subparagraph (A) of this paragraph to:

(i) the applicant or LAR; and

(ii) the service coordinator.

(3) Within one business day after the TAS has been delivered, the program provider must notify the service coordinator and the applicant or LAR that the TAS has been delivered.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 1, 2023.

TRD-202302021

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: June 21, 2023

Proposal publication date: February 17, 2023

For further information, please call: (512) 438-3161

SUBCHAPTER F. CERTIFICATION STANDARDS: QUALITY ASSURANCE

26 TAC §§565.23, 565.25, 565.27, 565.29, 565.31, 565.33, 565.35, 565.37, 565.39

STATUTORY AUTHORITY

§565.23.Residential Requirements.

(a) This applies to all three-person and four-person residences and host home/companion care settings, unless otherwise specified.

(b) A program provider must ensure that:

(1) the residence, neighborhood, and community meet the needs of the individual and provide an environment that ensures the health, safety, and welfare of the individual;

(2) the home is modified to meet the specific adaptive needs of the individual;

(3) adaptive equipment is functional for the individual or, if the equipment is not functional, the provider has documented:

(A) the broken equipment;

(B) the order date of new or replacement equipment;

(D) alternative strategies used during the interim;

(4) mattresses are off the floor and a mattress cover is utilized unless contraindicated and documented by the service planning team;

(5) home furnishings are safe and fit for use;

(6) the home is clean and sanitary;

(7) the home is free of infestations including bugs, rodents, and other pests;

(8) the walls, ceilings, floors, and windows are in good condition and not hazardous to the individual;

(9) the bathrooms are functional and safe to use;

(10) there is hot water available at sinks and in bathing facilities;

(11) the temperature of the hot water at sinks and bathing facilities does not exceed 120 degrees Fahrenheit unless the program provider, in accordance with subsection (c) of this section, conducts a competency-based skills assessment showing that all individuals in the residence can independently regulate the temperature of the hot water from the sinks and bathing facilities;

(12) the major home appliances are in working order, including kitchen appliances and heating and cooling systems;

(13) the individual's bedroom door has a lock that:

(A) is operable by the individual;

(B) only the individual, a roommate of the individual if applicable, and staff designated by the program provider have keys to the individual's bedroom door; and

(14) the individual does not require a lock if:

(A) the individual lives in a host home/companion care setting and the service provider is the LAR; or

(B) there is a documented modification in the individual's person-directed plan;

(15) household cleaners and chemicals are stored securely;

(16) perishable foods are refrigerated or stored safely;

(17) animals and pets are kept free of disease and vaccinated as required by Texas Health and Safety Code, Chapter 826; and

(18) the interior and exterior of the home:

(A) is free of accumulation of waste and trash;

(B) is accessible and free of hazards to an individual; and

(c) If the program provider conducts the competency-based skills assessment described in subsection (b)(11) of this section:

(1) the assessment must:

(A) be conducted by a staff member who is not a service provider of residential support, supervised living, or host home/companion care who works or lives in the residence;

(B) be conducted for each individual;

(C) evaluate the individual's cognitive and physical ability to independently mix or regulate the hot water temperature without assistance or guidance from each sink and bathing facility in the residence; and

(D) be based on a face-to-face demonstration by the individual; and

(2) the program provider must:

(A) complete the assessment at least annually;

(B) document the results of the assessment; and

(d) The program provider must ensure that each residence has:

(1) exterior doors that are unobstructed and accessible to all individuals living in the residence;

(2) two means of escape from the residence;

(3) two means of escape from an individual's bedroom, unless the program provider has a fire sprinkler system that is checked and maintained according to Texas Insurance Code, Chapter 6003, at which point there can be one means of escape from an individual's bedroom;

(4) working smoke alarms in each bedroom and immediately outside the bedrooms; and

(5) fire extinguishers that are:

(A) accessible and unobstructed to the service provider;

(B) on each level of the home;

(D) if unused, serviced according to the manufacturer's instructions, or as required by the state or local fire marshal.

(e) The program provider, as it relates to fire drills, must:

(1) conduct at each residence at least:

(A) one fire drill every 90 days;

(B) four fire drills every 365 days; and

(2) ensure that each staff member participates in a fire drill within 90 days of hire and at least annually thereafter;

(3) ensure that the staff member can explain the emergency plans for the residence;

(4) provide training for a staff member who does not follow the emergency plan during the fire drill; and

(5) revise the emergency plan to ensure the individual can exit the residence safely if the individual is unable to exit the home according to the emergency plan.

(f) The program provider, as it relates to emergency plans, must:

(1) ensure that a staff member reviews the emergency plans for each individual at a residence before providing services;

(2) instruct staff members on where to locate the emergency plans at the residence; and

(3) maintain documentation related to emergency preparedness accessible to staff members at the residence, including:

(A) emergency plans that address:

(i) the relevant emergencies given the geographic location;

(ii) the needs of the individuals living in the residence; and

(iii) fire drill responses; and

(B) emergency numbers publicly posted in an area of the residence that is easily accessible to staff members.

(g) A program provider must implement and maintain personnel practices that safeguard individuals against infectious and communicable diseases, which includes:

(1) using standard precautions in the care of all individuals, including hand hygiene and maintaining a sanitary environment to avoid sources and transmission of infections;

(2) creating written policies for the prevention and control of communicable diseases among employees and individuals, including the appropriate use of transmission-based precautions and protective measures the program provider must take if an employee contracts a communicable disease; and

(3) revising a policy or practice if a shortcoming is identified.

(h) A program provider must implement and maintain medication administration and storage practices that safeguard an individual's medication, which includes:

(1) creating written policies for preventing unauthorized access to medications;

(2) using a procedure that ensures safe medication administration to the individual;

(3) ensuring staff are trained and knowledgeable about the individuals' medications;

(4) ensuring staff who are administering medications have been trained and delegated by a registered nurse (RN);

(5) maintaining accurate, current, and accessible documentation of medication administration; and

(6) revising a policy or practice if a shortcoming is identified.

(i) A program provider must comply with the requirements in this subsection regarding a four-person residence.

(1) Before providing residential support in a four-person residence, the program provider must:

(A) obtain an inspection by the local fire marshal, or the Texas State Fire Marshal's office in locations where there is no local fire marshal, and correct any items cited by the local fire marshal or Texas State Fire Marshal's Office to the satisfaction of those authorities; and

(B) obtain Texas Health and Human Services Commission (HHSC)approval of the residence in accordance with §565.43 of this chapter(relating to HHSC Approval of Four Person Residences).

(2) HHSC inspects for certification, as described in paragraph(1)(A) of this subsection, only if the program provider submits to the HHSC Architectural Unit:

(A) one of the following:

(i) if the four-person residence is located in a jurisdiction with a local fire safety authority:

(I) a completed HHSC Form 5606, Life Safety Code Certification, available on the HHSC website, documenting that the local fire safety authority having jurisdiction refused to inspect for certification using the code (i.e., the Life Safety Code or International Fire Code) for that jurisdiction; and

(II) written documentation from the Texas State Fire Marshal's Office that it refused to inspect for certification using the Life Safety Code; or

(ii) if the four-person residence is located in a jurisdiction without a local fire safety authority, written documentation from the Texas State Fire Marshal's Office that it refused to inspect for certification using the Life Safety Code; and

(B) a completed HHSC Form 5604, HCS Program Provider Request for Life Safety Inspection, available on the HHSC website.

(3) The program provider must:

(A) obtain the certification required by this subsection annually; and

(B) ensure that a four-person residence:

(i) contains a copy of the most recent inspection of the residence by the local fire safety authority, Texas State Fire Marshal's Office, or HHSC; and

(ii) is in continuous compliance with all applicable local building codes and ordinances and state and federal laws, rules, and regulations.

§565.25.Programmatic Requirements.

(a) Before providing services to an individual in a residence in which supervised living or residential support is provided, and annually thereafter, the program provider must:

(1) conduct an on-site inspection to ensure that, based on the individual's needs, the environment is safe, accessible and suited for the individual's abilities, and complies with applicable federal, state, and local regulations for the community in which the individual lives;

(2) complete any action identified in the on-site inspection for a residence in which supervised living or residential support will be provided:

(A) before an individual moves in; or

(B) within 30 days if an individual is already in the residence; and

(C) document justification for any actions that cannot be completed before the individual moving in or within 30 days with a plan for completion.

(b) Before providing services to an individual in a residence in which host home/companion care is provided and quarterly thereafter, the program provider must:

(1) conduct an on-site inspection to ensure that, based on the individual's needs, the environment is safe, accessible, and suited for the individual's abilities and needs, and complies with applicable federal, state, and local regulations for the community in which the individual lives; and

(2) require proof of completion of any action identified in the on-site inspection for a residence in which host home/companion care will be provided to ensure that the residence meets the needs of the individual:

(A) before an individual moves in; or

(B) within 30 days if an individual is already in the residence; and

(C) document justification for any actions that cannot be completed before the individual moving in or within 30 days and include a plan for completion.

(c) The program provider must establish an ongoing consumer/advocate advisory committee composed of individuals, legally authorized representatives (LARs), community representatives, and family members that meets at least quarterly. The committee:

(1) at least annually, reviews the information provided to the committee by the program provider in accordance with subsection(l)(6) of this section; and

(2) based on the information reviewed, makes recommendations to the program provider for improvements to the processes and operations of the program provider.

(d) The program provider must make available all records, reports, and other information related to the delivery of HCS Program and CFC services as requested by the Texas Health and Human Services Commission (HHSC), other authorized agencies, or the Centers for Medicare and Medicaid and deliver such items, as requested, to a specified location or delivered electronically if available.

(e) The program provider must establish a procedure to assess at least annually the satisfaction of all individuals and LARs in the program provider's services and act within 60 days regarding any areas of dissatisfaction.

(f) The program provider must comply with 40 Texas Administrative Code (TAC) §49.309 (relating to Complaint Process).

(g) In all respite facilities and all residences in which a service provider of residential assistance or the program provider hold a property interest, the program provider must post in a conspicuous location:

(1) the name, address, and telephone number of the program provider;

(2) the effective date of the contract; and

(3) the name of the legal entity named on the contract.

(h) A program provider must report the death of an individual:

(1) to HHSC and the local intellectual and developmental disability authority by the end of the next business day after the program provider becomes aware of the death; and

(2) if the program provider reasonably believes that the LAR does not know of the individual's death, to the LAR as soon as possible, but not later than 24 hours after the program provider becomes aware of the death.

(i) A program provider must not retaliate against:

(1) a staff member, service provider, individual, or other person who files a complaint, presents a grievance, or otherwise provides good faith information relating to the possible abuse, neglect, or exploitation of an individual, including:

(A) use of seclusion; and

(B) use of a restraint not in compliance with federal and state laws, rules, and regulations; and

(2) an individual because a person on behalf of the individual files a complaint, presents a grievance, or otherwise provides good faith information relating to the possible abuse, neglect, or exploitation of an individual, including:

(A) use of seclusion; and

(B) use of a restraint not in compliance with federal and state laws, rules, and regulations.

(j) A program provider must enter critical incident data in the HHSC data system no later than the last calendar day of the month that follows the month being reported in accordance with HHSC guidance found on the HHSC website.

(k) A program provider must ensure that:

(1) the name and phone number of an alternate to the Chief Executive Officer (CEO) of the program provider is entered in the HHSC data system; and

(2) the alternate to the CEO:

(A) performs the duties of the CEO during the CEO's absence; and

(B) acts as the contact person in an HHSC investigation if the CEO is named as an alleged perpetrator of abuse, neglect, or exploitation of an individual, and complies with§565.31(d) - (f) of this subchapter (relating to Requirements Related to the Abuse, Neglect, and Exploitation).

(l) At least annually, the program provider must:

(1) evaluate information about the satisfaction of individuals and LARs with the program provider's services and identify program process improvements to increase the satisfaction;

(2) review complaints, as described in 40 TAC §49.309, and identify program process improvements to reduce the need for filing complaints;

(3) review all final investigative reports from HHSC and, based on the review, identify program process improvements that help prevent the occurrence of abuse, neglect, and exploitation and improve the delivery of services;

(4) review the reasons for terminating HCS Program or CFC services and identify any related need for program process improvements;

(5) evaluate critical incident data described in subsection (j) of this section, compare the program provider's use of restraint to aggregate data provided by HHSC on the HHSC website, and identify program process improvements that help prevent the reoccurrence of restraints and improve service delivery;

(6) provide all information the program provider reviewed, evaluated, and created as described in paragraphs (1) - (5) of this subsection to the consumer/advocate advisory committee required by subsection (c) of this section;

(7) implement any program process improvements identified by the program provider in accordance with this subsection; and

(8) review recommendations made by the consumer/advocate advisory committee as described in subsection (c)(2) of this section and implement the recommendations approved by the program provider.

(m) The program provider must ensure that all personal information concerning an individual is kept confidential, such as lists of names, addresses, and records obtained by the program provider, and that the use or disclosure of such information and records is limited to purposes directly connected with the administration of the program provider's HCS Program or provision of CFC services and is otherwise neither directly nor indirectly used or disclosed unless the consent of the individual to whom the information applies or the individual's LAR is obtained beforehand.

(n) The program provider must include the individual or LAR in planning the individual's residential relocation, except in cases of emergency.

§565.27.Finances and Rent.

(a) The program provider must comply with this subsection regarding charges against an individual's personal funds.

(1) The program provider must, in accordance with this paragraph, collect a monthly amount for room from an individual who lives in a three-person or four-person residence. The cost for room must consist only of:

(A) an amount equal to:

(i) rent of a comparable dwelling in the same geographical area that is unfurnished; or

(ii) the program provider's ownership expenses, limited to the interest portion of a mortgage payment, depreciation expense, property taxes, neighborhood association fees, and property insurance; and

(B) the cost of:

(i) shared appliances, electronics, and housewares;

(ii) shared furniture;

(iii) monitoring for a security system;

(iv) monitoring for a fire alarm system;

(v) property maintenance, including personnel costs, supplies, lawn maintenance, pest control services, carpet cleaning, septic tank services, and painting;

(vi) utilities, limited to electricity, gas, water, garbage collection, and a landline telephone; and

(vii) shared television and Internet service used by the individuals who live in the residence.

(2) Except as provided in subparagraphs (B) and (C) of this paragraph, a program provider must collect a monthly amount for board from an individual who lives in a three-person or four-person residence.

(A) The cost for board must consist only of the cost of food, including food purchased for an individual to consume while away from the residence as a replacement for food and snacks normally prepared in the residence, and of supplies used for cooking and serving, such as utensils and paper products.

(B) A program provider is not required to collect a monthly amount for board from an individual if collecting such an amount may make the individual ineligible for the Supplemental Nutrition Assistance Program operated by the Texas health and Human Services Commission(HHSC).

(C) A program provider must not collect a monthly amount for board from an individual if the individual chooses to purchase the individual's own food, as documented in the individual's implementation plan.

(3) To determine the maximum room and board charge for each individual, a program provider must:

(A) develop a process or formula that divides the rent equitably and considers:

(i) the number of residents receiving HCS Program services or similar services that the residence has been developed to support plus the number of service providers and other persons who live in the residence; and

(ii) the features or space to which an individual has exclusive or shared access, unless the additional space is requested and needed for accessibility purposes;

(B) divide the board cost described in paragraph (2) of this subsection by the number of persons consuming the food; and

(4) A program provider must not increase the charge for room and board because a resident moves from the residence.

(5) A program provider:

(A) must not charge an individual a room and board amount that exceeds an amount determined in accordance with paragraphs (1) - (3)of this subsection; and

(B) must maintain documentation demonstrating that the room and board charge was determined in accordance with paragraphs (1) - (3)of this subsection.

(6) Before an individual or legally authorized representative (LAR)selects a residence, the program provider must ensure the individual or LAR has a written residential agreement with:

(A) the program provider if the individual lives in a three-person residence or four-person residence; or

(B) the service provider of host home/companion care if the individual does not own the residence or lease the residence from another person.

(7) Except as provided in paragraph (8) of this subsection, a program provider may not charge or collect payment from any person for room and board provided to an individual receiving host home/companion care.

(8) If a program provider makes a payment to an individual's host home/companion care provider while waiting for the individual's federal or state benefits to be approved, the program provider may seek reimbursement from the individual for such payments.

(9) For a program provider who manages personal funds of an individual who receives host home/companion care, the program provider:

(A) must pay the agreed upon amount for the host home/companion care services;

(B) must pay the host home/companion care provider directly from the individual's account;

(C) may pay a room and board charge for the individual that is less than the host home/companion care provider's cost of room and board, as determined using the calculations described in paragraphs (1) and(2) of this subsection, for a three-person or four-person residence, divided by the number of persons living in the host home/companion care provider's home; and

(D) must not pay a host home/companion care provider a room and board charge that exceeds the host home/companion care provider's cost of room and board, as determined using the calculations described in paragraphs (1) and (2) of this subsection for a three-person or four-person residence, divided by the number of persons living in the host home/companion care provider's home.

(10) For an item or service other than room and board, the program provider must apply a consistent method in assessing a charge against the individual's personal funds that ensures that the charge for the item or service is reasonable and comparable to the cost of a similar item or service generally available in the community.

(b) The program provider must inform the individual and LAR orally or in writing of any charges assessed by the program provider against the individual's personal funds, the purpose of those charges, and effects of the charges in relation to the individual's financial status.

(c) The program provider must ensure that the individual or LAR has agreed in writing to all charges assessed by the program provider against the individual's personal funds before the charges are assessed.

(d) The program provider must not assess charges against the individual's personal funds for costs for items or services reimbursed through the HCS Program or through CFC.

(e) At the written request of an individual or LAR, the program provider must manage the individual's personal funds entrusted to the program provider, without charge to the individual or LAR in accordance with this subsection.

(1) The program provider must not commingle the individual's personal funds with the program provider's funds.

(2) The program provider must maintain a separate, detailed record of:

(A) all deposits into the individual's account; and

(B) all expenditures from the individual's account.

(3) If an expenditure is for the individual to use as personal spending money, the program provider must have a process to show the individual acknowledged receiving the funds.

(4) The program provider may accrue an expense for necessary items and services for which the individual's personal funds are not available for payment, such as room and board, medical and dental services, legal fees or fines, and essential clothing.

(5) If an expense is accrued as described in paragraph (4) of this subsection, the program provider must enter a written payment plan with the individual or LAR for reimbursement of the funds.

§565.31.Requirements Related to Abuse, Neglect, and Exploitation.

(a) A program provider must:

(1) ensure that an individual and legally authorized representative(LAR), at the time the individual begins receiving a Home and Community-based Services (HCS) Program or Community First Choice(CFC) service and at least annually thereafter, are:

(A) informed of how to report allegations of abuse, neglect, or exploitation to:

(i) the Texas Department of Family and Protective Services (DFPS)and given the toll-free telephone number, 1-800-647-7418, in writing; and

(ii) HHSC Complaint and Incident Intake (CII) by calling the toll-free telephone number, 1-800-458-9858; and

(B) educated about protecting the individual from abuse, neglect, and exploitation;

(2) ensure that each staff member, service provider, and volunteer are:

(A) trained and knowledgeable of:

(i) acts that constitute abuse, neglect, and exploitation;

(ii) signs and symptoms of abuse, neglect, and exploitation; and

(iii) methods to prevent abuse, neglect, and exploitation;

(B) instructed to report to DFPS immediately, but not later than one hour after having knowledge or suspicion, that an individual has been or is being abused, neglected, or exploited, by:

(i) calling the DFPS Abuse Hotline toll-free telephone number, 1-800-647-7418; or

(ii) using the DFPS Abuse Hotline website; and

(3) ensure that each staff member, service provider, and volunteer sign an acknowledgement that they understand all individuals must live free of abuse, neglect, and exploitation; and

(4) conduct the activities described in paragraph (2) and (3) of this subsection before a staff member, service provider, or volunteer assumes job duties and at least annually thereafter.

(b) Except as provided by §559.241(a) of this title (relating to Reporting Abuse, Neglect, Exploitation, or Incidents to HHSC), if a program provider, staff member, service provider, volunteer, or controlling person knows or suspects an individual is being or has been abused, neglected, or exploited, the program provider must report or ensure that the person with knowledge or suspicion reports the allegation of abuse, neglect, or exploitation to DFPS immediately, but not later than one hour after having knowledge or suspicion, by:

(1) calling the DFPS Abuse Hotline toll-free telephone number, 1-800-647-7418; or

(2) using the DFPS Abuse Hotline website.

(c) If a report required by subsection (b) of this section alleges abuse, neglect, or exploitation by a person who is not a service provider, staff member, volunteer, or controlling person, a program provider must:

(1) assess the individual and allegation and as necessary:

(A) obtain appropriate medical or psychological services for the individual; and

(B) assist in obtaining ongoing medical or psychological services for the individual;

(2) discuss with the individual or LAR safety measures, including alternative residential settings or individualized skills and socialization providers that may help ensure the individual's safety;

(3) when taking the actions described in paragraphs (1) and (2) of this subsection, avoid compromising the investigation or further traumatizing the individual; and

(4) preserve and protect evidence related to the allegation.

(d) If a report required by subsection (b) of this section alleges abuse, neglect, or exploitation by a service provider, staff member, volunteer, or controlling person; or if a program provider is notified by HHSC of an allegation of abuse, neglect, or exploitation by a service provider, staff member, volunteer, or controlling person, the program provider must:

(1) assess the individual and allegation as necessary:

(A) obtain appropriate medical or psychological services for the individual; and

(B) assist in obtaining ongoing medical or psychological services for the individual;

(2) take actions to secure the safety of the individual, including if necessary, ensuring that the alleged perpetrator does not have contact with the individual or any other individual until HHSC completes the investigation;

(3) when taking the actions described in paragraphs (1) and (2) of this subsection, avoid compromising the investigation or further traumatizing the individual;

(4) preserve and protect evidence related to the allegation; and

(5) notify, as soon as possible, but no later than 24 hours after the program provider reports or is notified of the allegation, the individual, the LAR, and the service coordinator of:

(A) the allegation report; and

(B) the actions the program provider has taken or will take based on the allegation, the condition of the individual, and the nature and severity of any harm to the individual, including the actions required by paragraph (2) of this subsection.

(e) During an HHSC investigation of an alleged perpetrator who is a service provider, staff member, volunteer, or controlling person, a program provider must:

(1) cooperate with the investigation as requested by HHSC, including providing documentation and participating in an interview;

(2) provide HHSC access to:

(A) sites owned, operated, or controlled by the program provider;

(B) individuals, service providers, staff members, volunteers, and controlling persons; and

(3) ensure that staff members, service providers, volunteers, and controlling persons comply with paragraphs (1) and (2) of this subsection.

(f) After a program provider receives a final investigative report from HHSC for an investigation described in subsection (e) of this section, the program provider must:

(1) if the allegation of abuse, neglect, or exploitation is confirmed by HHSC:

(A) review the report, including any concerns and recommendations by HHSC; and

(B) take action within the program provider's authority to prevent the reoccurrence of abuse, neglect or exploitation, including disciplinary action against the service provider, staff member, or volunteer confirmed to have committed abuse, neglect, or exploitation;

(2) if the allegation of abuse, neglect, or exploitation is unconfirmed, inconclusive, or unfounded:

(A) review the report, including any concerns and recommendations by HHSC; and

(B) take appropriate action within the program provider's authority, to ensure the individual's safety, as necessary;

(3) immediately, but not later than five calendar days after the date the program provider receives the HHSC final investigative report:

(A) notify the individual, the LAR, and the service coordinator of:

(i) the investigation finding; and

(ii) the action taken by the program provider in response to the HHSC investigation as required by paragraphs (1) and (2) of this subsection; and

(B) notify the individual or LAR of:

(i) the process to appeal the investigation finding as described in Chapter 711, Subchapter J of this title (relating to Appealing the Investigation Finding); and

(ii) the process for requesting a copy of the investigative report from the program provider;

(4) within 14 calendar days after the date the program provider receives the final investigative report, complete and send to HHSC the Form 8494, Notification Regarding an Investigation of Abuse, Neglect or Exploitation, located on the HHSC website; and

(5) upon request of the individual or LAR, provide to the individual or LAR a copy of the HHSC final investigative report after removing any information that would reveal the identity of the reporter or of any individual who is not the alleged victim.

(g) The program provider must ensure the coordination of services with the licensed individualized skills and socialization provider, including information regarding abuse, neglect, and exploitation.

§565.35.Enclosed Beds.

(a) The program provider may allow the use of an enclosed bed in a residence if the enclosed bed is purchased, obtained, and complies with the requirements in subsection (c) of this section prior to June 19, 2023.

(b) An enclosed bed is prohibited in a residence if it is purchased or obtained on or after June 19, 2023, even if it complies with subsection (c) of this section.

(1) visually inspect the enclosed bed to ensure it meets the criteria of an enclosed bed as defined in §565.3 of this chapter(related to Definitions);

(2) ensure that a physician, occupational therapist, or physical therapist:

(A) conducts an annual assessment to determine:

(i) if the individual has a medical need for the enclosed bed;

(ii) the circumstances under which the enclosed bed may be used;

(iii) that less restrictive methods would be ineffective in protecting the individual and the reasons for that determination;

(iv) how to use the enclosed bed and any contraindications specific to the individual;

(v) how and when to document the use of the enclosed bed; and

(vi) how to monitor the use of the enclosed bed to ensure it is being used in accordance with the assessment; and

(B) follows up after any significant change to determine if the individual still has a medical need for the enclosed bed;

(3) obtain and retain the following documentation:

(A) a letter of medical necessity from the prescribing physician or professional therapist; and

(B) a receipt from a durable medical equipment company for the enclosed bed;

(4) develop and implement policies and procedures that require:

(A) routine checks of the enclosure bed to ensure it is in good repair and safe for the individual;

(B) a documented quarterly review by a registered nurse (RN) or professional therapist to ensure the enclosed bed is still safe and necessary given the individual's current needs and other less restrictive options available; and

(C) an order for the enclosed bed updated annually, or sooner if the RN has determined there is a significant change to the individual's condition.

(d) To prevent misuse or overuse of the enclosed bed, the program provider must:

(1) develop and implement a usage plan that details when the enclosed bed will be used that is consistent with the assessment and order;

(2) require any staff member who provides services to an individual with an enclosed bed to read and document understanding of the usage plan before providing services; and

(3) make the usage plan readily available to staff members providing services.

(e) All enclosed beds are prohibited after June 19, 2028.

§565.37.Protective Devices.

(a) Except as provided in §565.35 of this subchapter (relating to Enclosed Beds), if a protective device is used, the program provider must ensure that it is used in accordance with this section.

(b) A program provider must not use a protective device:

(1) to modify or control an individual's behavior;

(2) for disciplinary purposes;

(3) for staff convenience; or

(4) as a substitute for an effective, less restrictive method.

(c) If a need for a protective device is identified, the program provider must ensure that a physician, occupational therapist, physical therapist, or registered nurse (RN):

(1) conducts an initial assessment to determine:

(A) if the individual has a medical need for a protective device;

(B) that less restrictive methods would be ineffective in protecting the individual, and the reasons for that determination;

(C) the type of protective device to be used, which must be the least restrictive protective device that will protect the individual;

(D) the circumstances under which the protective device may be used;

(E) how to use the protective device and any contraindications specific to the individual;

(F) how and when to document the use of the protective device; and

(G) how to monitor the use of the protective device to ensure it is being used in accordance with the assessment; and

(2) then annually and after any significant change to determine:

(A) if the individual has a medical need for a protective device;

(B) that less restrictive methods would be ineffective in protecting the individual, and the reasons for that determination; and

(C) the type of protective device to be used, which must be the least restrictive protective device that will protect the individual.

(d) Before a program provider uses a protective device, the program provider must:

(1) obtain and retain in the individual's record:

(A) an order for the use of the protective device identified in the initial assessment;

(B) complete initial and subsequent assessments from subsection (c)of this section; and

(2) provide oral and written notification to the individual or LAR of the right at any time to withdraw consent for the use of the protective device; and

(3) develop a policy and procedure to ensure that each service provider who will use the protective device has been trained in the proper use of the protective device, in accordance with the initial assessment.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 1, 2023.

TRD-202302022

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: June 21, 2023

Proposal publication date: February 17, 2023

For further information, please call: (512) 438-3161

SUBCHAPTER G. HHSC ACTIONS

26 TAC §§565.41, 565.43, 565.47, 565.49

STATUTORY AUTHORITY

§565.49.Program Provider Compliance and Corrective Action.

(a) If the Texas Health and Human Services Commission (HHSC) determines from a survey that a program provider complies with the certification standards, HHSC:

(1) sends the program provider a final survey report stating that the program provider complies with the certification standards;

(2) does not require any action by the program provider; and

(3) if the survey is an initial or a recertification survey, certifies the program provider as described in §565.41(f) of this subchapter (relating to HHSC Surveys of a Program Provider).

(b) If HHSC determines from a survey that a program provider is not in compliance with a certification standard and the violation is an immediate threat, HHSC notifies the program provider of the determination. The program provider must immediately provide HHSC with a plan of removal.

(c) In a plan of removal provided in accordance with subsection (b) of this section, a program provider must specify the time by which the program provider will remove the immediate threat. HHSC approves or disapproves the plan of removal and monitors to ensure the immediate threat is removed.

(d) If a program provider that is required to provide a plan of removal does not provide a plan of removal, HHSC does not approve the program provider's plan of removal, or the program provider does not implement the plan of removal approved by HHSC, HHSC:

(1) denies or terminates certification of the program provider; and

(2) coordinates with the local intellectual and developmental disability authorities (LIDDAs) the immediate provision of alternative services for the individuals.

(e) If HHSC determines from a survey that a program provider is not in compliance with a certification standard, HHSC sends to the program provider, within 10 business days after the date of the exit conference:

(1) a final survey report with a list of violations;

(2) a letter notifying the program provider that the program provider may request an informal dispute resolution to dispute a violation in the final survey report; and

(3) if HHSC imposes an administrative penalty in accordance with §565.45 of this subchapter (relating to Administrative Penalties), a written notice of the administrative penalty as described in 40 TAC §49.535(b) (relating to Administrative Penalties in the HCS and TxHmL Programs).

(f) If HHSC determines from an initial certification survey, recertification survey, or intermittent survey that a program provider is not in compliance with a certification standard, the program provider must submit to HHSC, within 14 calendar days after the date the program provider receives the final survey report, a plan of correction for each violation identified by HHSC in the final survey report. The program provider must submit a plan of correction in accordance with this subsection even if the program provider disagrees with the violation or requests an informal dispute resolution.

(g) In a plan of correction submitted in accordance with subsection (f) of this section, a program provider must specify a date by which the program provider will complete corrective action for each violation and such date must:

(1) for a critical violation, be no later than 30 calendar days after the date of the survey exit conference; and

(2) for a violation that is not a critical violation, be no later than 45 calendar days after the date of the survey exit conference.

(h) After HHSC receives the plan of correction required by subsection (f) of this section, HHSC notifies the program provider whether the plan is approved or not approved.

(i) If HHSC does not approve a plan of correction required by subsection (f) of this section, the program provider must submit a revised plan of correction within five business days after the date of HHSC's notice that the plan of correction was not approved. After HHSC receives the revised plan of correction, HHSC notifies the program provider whether the revised plan is approved or not approved.

(j) If the program provider does not submit a plan of correction required by subsection (f) of this section or a revised plan of correction required by subsection (i) of this section, or if HHSC notifies the program provider that a revised plan of correction is not approved, HHSC:

(1) imposes a vendor hold against the program provider until HHSC approves a plan of correction submitted by the program provider; or

(2) denies or terminates certification of the program provider.

(k) If HHSC approves a plan of correction, HHSC takes the following actions to determine if a program provider has completed its corrective action:

(1) requests that the program provider submit evidence of correction to HHSC; and

(2) conducts:

(A) for a critical violation, a follow-up survey after the date specified in the plan of correction for correcting the violation but within 45 calendar days after the survey exit conference, unless HHSC conducts an earlier follow-up survey as described in subsection (l) of this section; or

(B) for a violation that is not critical, a post 45-day follow-up survey, unless HHSC conducts an earlier follow-up survey as described in subsection (l) of this section.

(l) At the request of a program provider, HHSC may conduct a follow-up survey earlier than the timeframes described in subsection (k)(2) of this section.

(1) If HHSC determines from the earlier follow-up survey that corrective action has been completed and the program provider has not yet submitted a plan of correction to HHSC in accordance with subsection (f) of this section, the program provider must include the corrective action taken on the plan of correction that is submitted.

(2) If HHSC determines from the earlier follow-up survey that corrective action has not been completed for a violation that is not critical, HHSC conducts the post 45-day follow-up survey.

(m) If HHSC determines from a follow-up survey described in subsections (k)(2)(A) or (l) of this section that the program provider has completed corrective action for a critical violation, the administrative penalty stops accruing on the date corrective action was completed, as determined by HHSC. HHSC sends the program provider a written notice as described in 40 TAC §49.535(c).

(n) If HHSC determines from a follow-up survey described in subsections (k)(2)(A) or (l) of this section that the program provider has not completed the corrective action for a critical violation, HHSC:

(1) continues the administrative penalty and conducts another follow-up survey to determine if the program provider completed the corrective action;

(2) imposes a vendor hold against the program provider; or

(3) denies or terminates certification of the program provider.

(o) HHSC takes the actions described in this subsection regarding a follow-up survey described in subsection (n)(1) of this section.

(1) If HHSC determines from the survey that the program provider has completed the corrective action, the administrative penalty stops accruing on the date corrective action was completed, as determined by HHSC. HHSC sends the program provider a written notice as described in 40 TAC §49.535(c).

(2) If HHSC determines from the survey that the program provider has not completed the corrective action, the administrative penalty stops accruing and HHSC:

(A) imposes a vendor hold against the program provider; or

(B) denies or terminates certification of the program provider.

(p) If HHSC determines from a post 45-day follow-up survey or an earlier survey described in subsection (l) of this section that a program provider has completed corrective action for a violation that is not critical, HHSC does not impose an administrative penalty for the non-critical violation.

(q) If HHSC determines from a post 45-day follow-up survey that a program provider has not completed corrective action for a violation that is not critical, HHSC:

(1) imposes an administrative penalty for the non-critical violation in accordance with §565.45 of this subchapter;

(2) notifies the program provider of the administrative penalty, as described in 40 TAC §49.535(b); and

(3) conducts a survey:

(A) at least 31 calendar days after the date of the post 45-day exit conference of the follow-up survey; or

(B) earlier than 31 calendar days after the date of the exit conference of the post 45-day follow-up survey if the program provider has submitted evidence of corrective action to HHSC during the 30-day period.

(r) HHSC takes the actions described in this subsection regarding a survey described in subsection (q)(3) of this section.

(1) If HHSC determines from the survey that the program provider has completed corrective action, the administrative penalty stops accruing on the date corrective action was completed, as determined by HHSC. HHSC sends the program provider a written notice as described in 40 TAC §49.535(c).

(2) If HHSC determines from the survey that the program provider has not completed the corrective action, the administrative penalty stops accruing and HHSC:

(A) imposes a vendor hold against the program provider; or

(B) denies or terminates certification of the program provider.

(s) If HHSC determines that a program provider committed any of the actions described in §565.45(a)(2) of this subchapter, HHSC takes one of the following actions:

(1) imposes an administrative penalty against the program provider as described in §565.45 of this subchapter;

(2) imposes a vendor hold against the program provider; or

(3) denies or terminates certification of the program provider.

(t) If HHSC imposes a vendor hold in accordance with this section:

(1) for a program provider with a provisional contract, HHSC initiates termination of the program provider's contract in accordance with 40 TAC §49.534 (relating to Termination of Contract by HHSC); or

(2) for a program provider with a standard contract, HHSC conducts a survey at least 31 calendar days after the effective date of the vendor hold to determine if the program provider completed the corrective action required to release the vendor hold and:

(A) if the program provider completed the corrective action, HHSC releases the vendor hold; or

(B) if the program provider has not completed the corrective action, HHSC denies or terminates certification.

(u) If HHSC determines that a program provider is out of compliance with §565.9(b)(2) of this chapter (relating to Program Provider Requirements), corrective action required by HHSC may include the program provider paying or ensuring payment to a service provider of supported home living or CFC PAS/HAB who was not paid the wages required by §565.9(b)(2) of this chapter, the difference between the amount required and the amount paid to the service provider.

(v) HHSC does not cite a program provider for violation of a certification standard based solely on the action or inaction of a person who is not a service provider or a staff member. HHSC may cite a program provider for violation of a certification standard based on the program provider's response to the action or inaction of such a person.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 1, 2023.

TRD-202302023

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: June 21, 2023

Proposal publication date: February 17, 2023

For further information, please call: (512) 438-3161

CHAPTER 748. MINIMUM STANDARDS FOR GENERAL RESIDENTIAL OPERATIONS

The Texas Health and Human Services Commission (HHSC) adopts amendments to §748.105, concerning What are the requirements for my personnel policies and procedures, §748.363, concerning What information must the personnel record of an employee include, and §748.505, concerning What minimum qualifications must all employees meet; and new §748.751, concerning What are the requirements for obtaining and verifying an applicant's employment history, and §748.753, concerning What are the requirements for completing an applicant's reference checks, in Texas Administrative Code, Title 26, Chapter 748, Minimum Standards for General Residential Operations.

New §748.751 and §748.753 are adopted with changes to the proposed text as published in the March 17, 2023, issue of the Texas Register (48 TexReg 1531). These rules will be republished.

Amended §§748.105, 748.363, and 748.505 are adopted without changes to the proposed text as published in the March 17, 2023, issue of the Texas Register (48 TexReg 1531). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The amended and new sections are necessary to support the June 9, 2022, court filing regarding the June 6, 2022, status hearing in the MD v. Abbott litigation. The filing, signed by the court, refers to an agreement by HHSC to initiate rulemaking to require operations to contact all an applicant's job references prior to commencement of employment. In addition to this court filing, CCR has determined that the rules will improve the safety of children in care in general residential operations by requiring a more thorough vetting of prospective employees.

Accordingly, HHSC Child Care Regulation (CCR) is adopting new and amended rules to establish (1) employment history verification standards that require a General Residential Operation (GRO) to obtain and verify the most recent five years of an applicant's employment history; and (2) applicant reference check requirements that require a GRO to complete reference checks for each applicant by obtaining at least two references and contacting each of those references as part of an operation's pre-employment screening process.

COMMENTS

The 31-day comment period ended April 17, 2023. During this period, HHSC received 22 comments regarding the rules from the Texas Alliance of Child and Family Services (TACFS). HHSC also received one additional comment from Amarillo Children's Home, a GRO that is a member of TACFS and provided input into TACFS' comments, stating their support for TACFS' comments. A summary of the comments relating to the rules and HHSC's responses follows.

Comment: Regarding §748.363, one commenter recommended that HHSC ensure there is only one citable subsection for each requirement related to employment verification and employee reference checks. The commenter also recommended that documentation requirements be weighted medium-low or lower.

Response: HHSC agrees that only one subsection for each requirement should be citable but declines to revise the rule because the comment is not related to the rule content or language. With respect to the comment, CCR will not assign a weight to this rule because CCR will cite the specific rules referenced in this rule in the event CCR determines an operation violated these requirements.

Comment: Regarding §748.505(b)(5) and the rules in general, one commenter recommended HHSC clearly communicate that citations should not be "stacked" so that CCR staff do not cite an operation for this rule while also citing identical, referenced requirements in §748.751, What are the requirements for obtaining and verifying an applicant's employment history, or §748.753, What are the requirements for completing an applicant's reference checks.

Response: HHSC agrees that training CCR staff on regulatory expectations is important but declines to revise the rules, as this issue relates to training and not rule content or language. Accordingly, CCR will continue its current practice of including this message in the training CCR provides to staff on an ongoing basis and when new rules are adopted. In the event an operation disagrees with a citation or wishes to contest a citation as evidence of "stacking," the operation retains the right to request an administrative review, as outlined in Texas Administrative Code, Title 26, Chapter 745, Licensing, Subchapter M, Administrative Reviews and Due Process Hearings.

Comment: Regarding §§748.505(b)(5), 748.751, and 748.753, one commenter recommended each rule be amended to remove the requirement that all applicants clear a pre-employment screening that includes employment history verification and applicant reference checks. The commenter stated that the requirements should be applicable only to employees who are counted in ratio or have unsupervised contact with children.

Response: HHSC disagrees with the comment and declines to revise the rules. Employees may pose a risk to children in care even if they do not provide care directly to children or have unsupervised access to children in care. Therefore, any employee in an operation that serves children, whether in a direct care role or an ancillary role, should be thoroughly vetted to ensure the safety of children.

Comment: Regarding §748.751, one commenter requested HHSC maintain the technical assistance (TA) information included in the informal proposal that specified that organizations may use existing forms and applications to meet and document the requirements in the new rules.

Response: HHSC agrees with the comment and intends to publish the TA as indicated by the commenter in the TA box that follows the rule in the minimum standards courtesy publication.

Comment: Regarding §748.751, one commenter recommended HHSC include an optional employment history verification form that meets the documentation requirements outlined in the rule.

Response: HHSC agrees with the comment and will publish a TA document that contains the employment verification requirements for use as an optional reference for operations. The document will be maintained in CCR's TA library.

Comment: Regarding §748.751, one commenter recommended HHSC explicitly clarify that the rule applies to paid employees in accordance with the other definitions in Chapter 748 and does not apply to interns or volunteers.

Response: HHSC disagrees with the comment and declines to revise the rule. The rule contains language that clarifies it applies only to applicants under consideration for employment. Moreover, Chapter 748 includes a definition for employee that specifies that an employee is a person an operation employs full-time or part-time to work for wages, salary, or other compensation.

Comment: Regarding §748.751(a)(1), one commenter recommended HHSC explicitly clarify in rule that an applicant must provide five years of employment history only when an applicant has five years of employment history.

Response: HHSC agrees with the comment and updated the rule to address situations when a person has not continuously been employed for the last five years or has never been employed.

Comment: Regarding §748.751 and §748.753, one commenter recommended HHSC clarify that an applicant who is a survivor of commercial exploitation is not required to include employment history or list employment references from their recovery or trauma history that would violate the survivor's privacy and recovery. The commenter recommended that HHSC include suggestions for other reference options in such situations.

Response: HHSC agrees that maintaining the safety of survivors of commercial exploitation is important but declines to revise the rule because an operation may request a variance to the rules in such circumstances. HHSC added language to this effect in the TA box that follows the rule in the minimum standards courtesy publication.

Comment: Regarding §748.751(c) and §748.753(e), one commenter issued a statement of support regarding the applicability of the rules to applicants on or after August 9, 2023.

Response: HHSC appreciates support of the rules.

Comment: Regarding §748.753, one commenter recommended that the language for when an employer is unable to obtain information from a reference should mirror that for §748.751(b)(2).

Response: HHSC agrees with the comment and updated the rule to address situations when the reference is permanently unreachable.

Comment: Regarding §748.753, one commenter recommended HHSC clarify that a professional reference may be the same as someone who provides information regarding an applicant's employment history.

Response: HHSC agrees with the comment but declines to revise the rule. HHSC does not believe this recommendation warrants a rule change because the rules do not prohibit the person verifying employment from providing a reference. However, to help ensure consistent interpretation of the rules, HHSC added this clarification to the TA box that follows the rule in the minimum standards courtesy publication.

Comment: Regarding the rules in general, one commenter issued a statement of support for changes that HHSC made from the informal draft rules to the proposed rules. In particular, the commenter recognized the following changes: moving away from asking references to opine on an applicant's mental and emotional fitness; being less prescriptive in the number and manner of attempts a prospective employer must make to contact a former employer or reference; and moving away from requiring contact to every employer in preceding five years and focusing on the recent (but still significant) history.

Response: HHSC appreciates support of the rules.

Comment: Regarding the rules in general, one commenter stated the proposal will layer on administrative and compliance burdens and impede provider capacity to serve children in need without a commensurate improvement to safety, as employers are almost universally disinclined to provide the type of meaningful reference information the rule presumes that operations can obtain. The commenter stated that the rules will cause delays in hiring staff and make it even more challenging to find qualified employees.

Comment: Regarding the rules in general, one commenter stated that it would have been far more impactful for HHSC to have offered meaningful technical assistance (rather than mandatory and prescriptive rules) around risk mitigation through the hiring and interview process, and ways to support new employees to minimize risk.

Response: HHSC disagrees with the comment and declines to revise the rules. The rules are necessary to support the June 9, 2022, court filing regarding the June 6, 2022, status hearing in the MD v. Abbott litigation. The filing, signed by the court, refers to an agreement by HHSC to initiate rulemaking to require operations to contact all an applicant's job references prior to commencement of employment. In addition to this court filing, CCR has determined that the rules will improve the safety of children in care in general residential operations by requiring a more thorough vetting of prospective employees. HHSC also believes that the rules and CCR's provision of meaningful technical assistance will further reduce risk to children in care.

Comment: Regarding the rules in general, one commenter recommended HHSC implement the proposed employment history verification and reference check requirements for CCR staff.

Response: HHSC disagrees with the comment. HHSC has polices that require all CCR employees to undergo both background checks and reference checks prior to employment.

Comment: Regarding the rules in general, one commenter stated that employers would need additional staff resources to meet pre-employment screening requirements, without additional funding to conduct the required activities, maintain documentation, implement quality assurance practices to assure that the activities and documentation are occurring, and for increasingly many of them, pay a third-party to carry out these functions because the administrative lift cannot be borne in-house without detriment to current programming. The commenter also asserted that regardless of whether a provider handles the activities themselves or somehow comes up with resources to pay a third-party, they will periodically be required to pay private services such as The Work Number to conduct employment verification.

Response: HHSC disagrees with the comment and declines to revise the rules. The rules are necessary to support the June 9, 2022, court filing regarding the June 6, 2022, status hearing in the MD v. Abbott litigation. The filing, signed by the court, refers to an agreement by HHSC to initiate rulemaking to require operations to contact all an applicant's job references prior to commencement of employment. In addition to this court filing, CCR has determined that the rules will improve the safety of children in care in general residential operations by requiring a more thorough vetting of prospective employees. HHSC noted that some operations may incur increased costs to implement the pre-employment screening requirements and some may not. HHSC is unable to determine the extent of the impact to individual operations due to the variability in existing screening processes across GROs.

Comment: Regarding the rules in general, one commenter recommended HHSC withdraw the proposal and allow for continued discretion in hiring by private sector employees who are already regulated.

Response: HHSC disagrees with the comment and declines to withdraw the proposal. The rules are necessary to support the June 9, 2022, court filing regarding the June 6, 2022, status hearing in the MD v. Abbott litigation. The filing, signed by the court, refers to an agreement by HHSC to initiate rulemaking to require operations to contact all an applicant's job references prior to commencement of employment. In addition to this court filing, CCR has determined that the rules will improve the safety of children in care in general residential operations by requiring a more thorough vetting of prospective employees.

SUBCHAPTER C. ORGANIZATION AND ADMINISTRATION

DIVISION 1. REQUIRED PLANS AND POLICIES, INCLUDING DURING THE APPLICATION PROCESS

26 TAC §748.105

STATUTORY AUTHORITY

The amendment is adopted under 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 Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, Texas Human Resources Code §42.042(a) requires HHSC to adopt rules to carry out the requirements of Chapter 42 of the Texas Human Resources Code.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 2, 2023.

TRD-202302042

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: August 9, 2023

Proposal publication date: March 17, 2023

For further information, please call: (512) 438-3269

SUBCHAPTER D. REPORTS AND RECORD KEEPING

DIVISION 3. PERSONNEL RECORDS

26 TAC §748.363

STATUTORY AUTHORITY

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 2, 2023.

TRD-202302044

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: August 9, 2023

Proposal publication date: March 17, 2023

For further information, please call: (512) 438-3269

SUBCHAPTER E. PERSONNEL

DIVISION 1. GENERAL REQUIREMENTS

26 TAC §748.505

STATUTORY AUTHORITY

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 2, 2023.

TRD-202302043

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: August 9, 2023

Proposal publication date: March 17, 2023

For further information, please call: (512) 438-3269

DIVISION 8. PRE-EMPLOYMENT SCREENING

26 TAC §748.751, §748.753

STATUTORY AUTHORITY

The new sections are adopted under 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 Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, Texas Human Resources Code §42.042(a) requires HHSC to adopt rules to carry out the requirements of Chapter 42 of the Texas Human Resources Code.

§748.751.What are the requirements for obtaining and verifying an applicant's employment history?

(a) Before hiring an applicant for a position, you must:

(1) Obtain in writing the applicant's employment history for the last five years, which may include:

(A) Any history for an applicant who has not continuously been employed during the last five years; or

(B) A statement that the applicant has no employment history during the last five years; and

(2) When the applicant's employment history indicates the applicant has been employed within the last five years, verify whether the applicant was employed as described in the applicant's employment history by contacting:

(A) Each employer included in the five-year employment history; or

(B) The applicant's three most recent employers, at a minimum, if the five-year employment history includes more than three employers; and

(b) If you hire the applicant, you must maintain documentation of the following in the applicant's personnel file:

(1) The applicant's employment history required by subsection (a)(1) of this section; and

(2) If the applicant has been employed in the last five years, the results of any contact with an applicant's previous employers related to employment verification. If you are unable to contact an employer or obtain the information described in subsection (a)(2) of this section from an employer:

(A) Any refusal by the employer to provide the information; or

(B) Your diligent efforts to contact the employer, which must include more than one attempt to contact an employer who is not permanently unreachable. If the employer is permanently unreachable, your documentation must include the reason why you made that determination. Examples of an employer being unreachable include:

(i) The employer is out of business and there is no alternative contact information to obtain information from the employer; or

(ii) The employer is deceased.

§748.753.What are the requirements for completing an applicant's reference checks?

(a) Before hiring an applicant for a position, you must complete the applicant's reference checks by:

(1) Obtaining from the applicant the name and contact information of at least two individuals unrelated to the applicant who can serve as references by answering questions related to the applicant's suitability to work with or around children; and

(2) Contacting each of the two required references to verify that the applicant is suitable to work with or around children. You may contact the reference through an interview or in writing.

(b) For an applicant who is currently or was previously employed in a position responsible for providing care or services to children within the past five years, at least one of the reference checks required in subsection (a) of this section must be a current or prior employer who has supervised or is otherwise familiar with the history and performance of the applicant in that capacity.

(c) For any reference check you are unsuccessful in completing as required by subsection (a) or (b) of this section, you must document:

(1) Any refusal by the reference to provide the information; or

(2) Your diligent efforts to contact the reference, which must include more than one attempt to contact a reference who is not permanently unreachable. If the reference is permanently unreachable, your documentation must include the reason why you made that determination. Examples of a reference being unreachable include:

(A) The reference is out of business and there is no alternative contact information to obtain information from the employer; or

(B) The reference is deceased; and

(3) Your assessment of the applicant's suitability to work with or around children.

(d) For each person you hire, you must maintain in the employee's personnel file:

(1) Documentation of each reference check that includes:

(A) The reference's name;

(B) The relation of the reference to the applicant;

(D) The date you completed the check;

(E) Information you obtained from the check, documented as:

(i) A summary of the interview; or

(ii) A copy of the written information provided by the reference; and

(F) If you conducted the check through an interview, the name of the person who interviewed the reference; and

(2) If you were unsuccessful in completing a reference check, documentation required by subsection (c) of this section.

(e) This rule applies only to applicants who seek employment with your operation on or after August 9, 2023.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 2, 2023.

TRD-202302045

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: August 9, 2023

Proposal publication date: March 17, 2023

For further information, please call: (512) 438-3269