TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES

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

As required by Texas Government Code, §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all of its functions were transferred to the Health and Human Services Commission (HHSC) in accordance with Texas Government Code, §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1 govern functions previously performed by DADS that have transferred to HHSC. Texas Government Code, §531.0055, requires the executive commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, including rules in Title 40, Part 1. Therefore, the executive commissioner of HHSC proposes amendments to §9.153, §9.177, §9.178, and §9.190; and new §9.175; in Subchapter D, Home and Community-based Services (HCS) Program and Community First Choice (CFC); and amendments to §9.553, §9.555, §9.579, §9.580, and §9.583; and new §9.585; in Subchapter N, Texas Home Living (TxHmL) Program and Community First Choice (CFC); in Title 40, Part 1, Chapter 9, Intellectual Disability Services--Medicaid State Operating Agency Responsibilities.

BACKGROUND AND PURPOSE

The HCS Program and the TxHmL Program are Medicaid waiver programs approved by the Centers for Medicare & Medicaid Services under §1915(c) of the Social Security Act. These programs provide community-based services and supports to an eligible individual as an alternative to services provided in an institutional setting.

One of the purposes of the proposed rules is to include in Chapter 9, Subchapters D and N, all of the requirements related to abuse, neglect, and exploitation of an individual in the HCS or TxHmL Program. Currently, Texas Administrative Code, Title 40, (40 TAC) §49.310, Abuse, Neglect, and Exploitation Allegations, applies to the HCS and TxHmL Programs and requires a program provider to take certain actions related to abuse, neglect, and exploitation. Rules in 40 TAC Chapter 49, Contracting for Community Services, are proposed for amendment in this issue of the Texas Register, to exclude the HCS and TxHmL Programs from §49.310. These rules are proposed in Chapter 9, Subchapters D and N, to use terminology specific to the HCS and TxHmL Programs, add specificity to the current requirements of §49.310, and add new requirements. For example, the proposed rules require a program provider to (1) conduct training related to abuse, neglect, and exploitation of staff members, service providers, and volunteers before assuming job duties and at least annually thereafter; (2) ensure that the persons who are trained are knowledgeable about signs and symptoms of abuse, neglect, and exploitation; and (3) educate an individual and legally authorized representative (LAR) about protecting the individual from abuse, neglect, and exploitation.

Another purpose of the proposed rules is to change current references to "Department of Family and Protective Services (DFPS) investigations" to "HHSC investigations." This change is necessary because effective September 1, 2017, in accordance with Texas Government Code, §531.02011 and §531.02013, the functions performed by the DFPS Adult Protective Services (APS) Provider Investigations (PI) Program were transferred to HHSC. The proposed rules also clarify that HHSC investigates allegations of abuse, neglect, or exploitation of an individual when the alleged perpetrator is a volunteer or controlling person, in addition to if the alleged perpetrator is a service provider or staff member.

Another purpose of the proposed rules is to include current requirements for Local Intellectual and Developmental Disability Authorities (LIDDAs) that address changes to the investigatory process for abuse, neglect, and exploitation as a result of amendments to Texas Human Resources Code, Chapter 48, effective September 1, 2015. The amendments gave the DFPS APS PI Program the authority to investigate an allegation of abuse, neglect, or exploitation of an individual receiving services through the consumer directed services (CDS) option. The proposed rules require a LIDDA to ensure its rights protection officer who receives a copy of an HHSC initial intake report or a final investigative report for individuals receiving services through the CDS option, gives a copy of each report to the individual's service coordinator so that the service coordinator can perform functions related to those reports. The requirements for service coordinators related to abuse, neglect, and exploitation in the CDS option are being proposed in 40 TAC Chapter 41, Consumer Directed Services Option, in this same issue of the Texas Register.

The proposed rules require a service provider of behavioral support who is a behavior analyst to be licensed in accordance with Texas Occupations Code, Chapter 506. This change is based on Senate Bill 589 (85th Legislature, Regular Session, 2017) which added Chapter 506 to the Texas Occupations Code to require a behavior analyst to be licensed by the Texas Department of Licensing and Regulation by September 1, 2018.

The proposed rules related to the TxHmL Program delete rules regarding social work services because social work services is not a TxHmL Program service.

The proposed rules also update agency names and replace specific website addresses.

SECTION-BY-SECTION SUMMARY

The proposed amendments change "DADS" to "HHSC" throughout Chapter 9 to reflect that DADS was abolished effective September 1, 2017, and functions have transferred to HHSC.

The proposed amendment to §9.153, Definitions, adds a definition for "abuse," "alleged perpetrator," "chemical restraint," "controlling person," "exploitation," "mechanical restraint," "neglect," "physical abuse," "physical restraint," "sexual abuse," "sexual activity," "sexual exploitation," "verbal or emotional abuse," and "volunteer," and changes the definition of "restraint," because those terms are related to abuse, neglect, and exploitation. The proposed amendment changes the definition of "DADS" and defines the "Department of Assistive and Rehabilitative Services" as "The Texas Workforce Commission" to reflect the consolidation of the health and human services agencies. The proposed amendment changes the definition of "GRO" to refer to the Texas Human Resources Code instead of including the definition from the Texas Human Resources Code in §9.153. The proposed amendment moves "military family member" and "RN" to its correct alphabetical position. The proposed amendment makes clarifying changes in the definition for "seclusion." The proposed amendment also updates agency names and references to websites and makes minor editorial changes.

Proposed new §9.175, Certification Principles: Requirements Related to the Abuse, Neglect, and Exploitation of an Individual, requires a program provider to inform an individual and LAR that an allegation of abuse, neglect or exploitation is reported to DFPS by calling the toll-free telephone number, 1 (800) 647-7418. The DFPS telephone number is included because DFPS is responsible for the intake of all reports alleging abuse, neglect, or exploitation of an individual. The proposed rule also requires that a program provider educate the individual and LAR about protecting the individual from abuse, neglect, and exploitation to help ensure the health and safety of the individual. The proposed rule requires a program provider to conduct training to ensure a staff member, service provider, and volunteer are knowledgeable of acts that constitute, signs and symptoms of, and methods to prevent abuse, neglect, and exploitation. The proposed rule requires a program provider to instruct a staff member, service provider, and volunteer to call the DFPS Abuse Hotline or use the DFPS Abuse Hotline website 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. The proposed rule requires a program provider to provide the instructions, in writing, to a staff member, service provider, and volunteer and to conduct the training before the staff member, service provider, or volunteer assumes job duties and at least annually thereafter to help ensure that staff members, service providers, and volunteers of a program provider are adequately and routinely informed of critical information regarding abuse, neglect, and exploitation. The proposed new rule requires a program provider, if the program provider, staff member, service provider, volunteer, or controlling person knows or suspects an individual is being or has been abused, neglected, or exploited, to 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 calling the DFPS Abuse Hotline or using the DFPS Abuse Hotline website. The proposed rule describes the actions that a program provider must take, if necessary, to support and protect an individual if a report required by subsection (b) of this section is made. The proposed rule requires the program provider, during an HHSC investigation of an alleged perpetrator who is a service provider, staff member, volunteer, or controlling person, to cooperate with the investigation; provide HHSC access to sites, individuals, service providers, staff members, volunteers, controlling persons, and pertinent records; and ensure that staff members, service providers, volunteers, and controlling persons comply with these requirements. The proposed rule also includes requirements regarding the program provider notifying the individual and LAR of the investigation finding and taking action in response to the HHSC investigation. The proposed rule describes the actions a program provider must take after the program provider receives a final investigative report from HHSC for an investigation in which the alleged perpetrator is a staff member, service provider, volunteer, or controlling person, including taking appropriate action within the program provider's authority to prevent the reoccurrence of abuse, neglect or exploitation; notifying the individual, the LAR, and the service coordinator of the investigation finding; and sending to HHSC the HHSC Notification to Waiver Survey and Certification (WSC) Regarding an Investigation of Abuse, Neglect or Exploitation form.

The proposed amendment to §9.177, Certification Principles: Staff Member and Service Provider Requirements, deletes the requirement for a program provider to train staff members, service providers, and volunteers on the information described in §49.310(3)(A) because this requirement is included in proposed new §9.175. The proposed amendment requires a program provider to ensure that a behavior analyst providing behavioral support services is licensed in accordance with Texas Occupations Code, Chapter 506, instead of certified by the Behavior Analyst Certification Board, Inc. The proposed amendment also updates a reference to a website.

The proposed amendment to §9.178, Certification Principles: Quality Assurance, deletes requirements related to abuse, neglect, and exploitation that have been included in proposed new §9.175. The proposed amendment replaces the requirement for a program provider to review incidents of abuse, neglect, or exploitation with the requirement to review all final investigative reports from HHSC and, based on the review, to identify program process improvements that help prevent the occurrence of abuse, neglect, and exploitation and improve the delivery of services. This requirement clarifies the type of information the program provider must review regarding incidents of abuse, neglect, and exploitation. The proposed amendment makes changes to require a program provider to report critical incident data no later than the last calendar day of the month, instead of 30 calendar days after the last day of the month that follows the month being reported. This change makes it easier for a program provider to keep track of the deadline to report critical incident data. The proposed amendment requires a program provider to report the death of an individual to an individual's LIDDA instead of to the individual's service coordinator in case the service coordinator is not readily available. The proposed amendment also makes editorial changes to clarify the time frames for a program provider to report the death of an individual to HHSC, the LIDDA, and if necessary, the LAR. The proposed amendment removes unnecessary language in the provision prohibiting retaliation by a program provider. Specifically, references to the misuse of restraint or use of seclusion were removed because those activities are encompassed in the definition of "abuse." In addition, a reference to discharge is removed because that action is encompassed in the meaning of "retaliate." The proposed amendment makes editorial changes to clarify the requirement for a program provider to ensure that the alternate to the Chief Executive Officer (CEO) 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. The proposed amendment makes minor editorial changes and updates rule references and agency websites.

The proposed amendment to §9.190, LIDDA Requirements for Providing Service Coordination in the HCS Program, requires a LIDDA to ensure compliance with 40 TAC Chapter 4, Subchapter L, Abuse, Neglect, and Exploitation in Local Authorities and Community Centers, because those rules apply to LIDDAs providing service coordination to individuals in the HCS Program. The proposed amendment requires a LIDDA to ensure its rights protection officer who receives a copy of an HHSC initial intake report or a final investigative report from a financial management services agency (FMSA) for an HHSC investigation of abuse, neglect, or exploitation of an individual receiving a service through the CDS option, gives a copy of the report to the individual's service coordinator. The proposed amendment includes the HHSC Complaint and Incident Intake toll-free telephone number at 1 (800) 458-9858 that a LIDDA may use to refer an unresolved concern about implementation of an individual's person-directed plan. The proposed amendment requires a LIDDA to provide information related to filing a complaint and reporting an allegation of abuse, neglect, or exploitation to an individual annually after enrollment, instead of only at enrollment, to help ensure that an individual and LAR are knowledgeable of these processes. In addition, the proposed amendment includes the HHSC Complaint and Incident Intake toll-free telephone number at 1 (800) 458-9858 as part of the information the service coordinator must provide to the individual or LAR regarding how to file a complaint. The proposed amendment makes minor editorial changes, updates rule references, agency websites, and the name of a booklet.

The proposed amendment to §9.553, Definitions, adds a definition for "abuse," "alleged perpetrator," "chemical restraint," "controlling person," "exploitation," "mechanical restraint," "neglect," "physical abuse," "physical restraint," "restraint," "sexual abuse," "sexual activity," "sexual exploitation," "verbal or emotional abuse," and "volunteer" because those terms are related to abuse, neglect, and exploitation. The proposed amendment changes the definition of "DADS," adds a definition for the "Department of Assistive and Rehabilitative Services" to define it as "The Texas Workforce Commission," and changes "Department of Assistive and Rehabilitative Services" to "Texas Workforce Commission" in the definition of "own home or family home" to reflect the consolidation of the health and human services agencies. The proposed amendment moves "ICAP--Inventory for Client and Agency Planning" and "military family member" to their correct alphabetical positions. The proposed amendment makes clarifying changes in the definition for "seclusion." The proposed amendment also updates agency websites and makes minor editorial changes.

The proposed amendment to §9.555, Description of TxHmL Program Services, corrects the list of professional therapies available in the TxHmL Program by deleting social work services because it is not a service available in the TxHmL Program. The proposed amendment also updates a rule reference.

The proposed amendment to §9.579, Certification Principles: Qualified Personnel, deletes the requirement for a TxHmL program provider to train staff members, service providers, and volunteers on the information described in §49.310(3)(A) because this requirement is included in proposed new §9.585. The proposed amendment requires a program provider to ensure that a behavior analyst providing behavioral support services is licensed in accordance with Texas Occupations Code, Chapter 506, instead of certified by the Behavior Analyst Certification Board, Inc. The proposed amendment deletes the requirement that a social worker licensed in accordance with the Occupations Code is the qualified service provider for social work services because social work services is not a service available in the TxHmL Program. The proposed amendment makes a minor editorial change, updates agency websites and changes the title of the section.

The proposed amendment to §9.580, Certification Principles: Quality Assurance, deletes requirements related to abuse, neglect, and exploitation that have been included in proposed new §9.585. The proposed amendment replaces the requirement for a TxHmL program provider to review incidents of abuse, neglect, or exploitation with the requirement to review all final investigative reports from HHSC to clarify the type of information the program provider must review. The proposed amendment also requires the program provider to, based on the review of the reports, identify program process improvements that help prevent the occurrence of abuse, neglect, and exploitation, and improve the delivery of services. This new requirement is consistent with the requirement for HCS program providers. The proposed amendment requires a program provider to review complaints, as described in §49.309, and identify program process improvements to reduce the filing of complaints to be consistent with the requirement for an HCS program provider. The proposed amendment requires a program provider to review the reasons for suspensions, terminations, and transfers and identify any related need for program process improvements to be more consistent with the requirement for an HCS program provider. The proposed amendment clarifies that the program provider must review critical incident data in accordance with subsection (n) to clarify the type of information the program provider must review. The proposed amendment changes the frequency with which a program provider must review the investigative reports, complaints, reasons for suspension, termination, and transfers, and critical incident data from "at least quarterly" to "at least annually," to be consistent with the requirement in the HCS Program. The proposed amendment clarifies that a written behavior support plan is developed by a service provider of behavioral support because the persons listed in §9.579(o) as qualified service providers of behavioral support include more than a psychologist and behavior analyst. The proposed amendment deletes "family" from the requirement for a program provider to report an individual's death to be consistent with the requirement for an HCS program provider. The proposed amendment also makes editorial changes to clarify the time frames for a program provider to report the death of an individual to HHSC, the LIDDA, and if necessary, the LAR. The proposed amendment prohibits a program provider from retaliating against 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; or 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 the individual. The proposed amendment makes changes to require a program provider to report critical incident data no later than the last calendar day of the month, instead of 30 calendar days after the last day of the month that follows the month being reported. This change makes it easier for a program provider to keep track of the deadline to report critical incident data. The proposed amendment makes editorial changes to clarify the requirements for a program provider to ensure that the alternate to the CEO 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. The proposed amendment, makes minor editorial changes, and updates rule references.

The proposed amendment to §9.583, TxHmL Program Principles for LIDDAs, requires a LIDDA to provide information related to filing a complaint and reporting an allegation of abuse, neglect, or exploitation to an individual annually after enrollment in the TxHmL Program to help ensure that an individual and LAR are knowledgeable of these processes. In addition, the proposed amendment includes the HHSC Complaint and Incident Intake toll-free telephone number at 1 (800) 458-9858 as part of the information the service coordinator must provide to the individual or LAR regarding how to file a complaint. To be consistent with the requirement for the HCS Program, the proposed amendment requires a service coordinator to provide an individual, an LAR, or a family member with a written copy of the booklet "Your Rights In the Texas Home Living (TxHmL) Program" and an oral explanation of the rights described in the booklet. Currently, service coordinators are performing this activity for individuals in the TxHmL Program. The proposed amendment describes when the service coordinator must provide this information and the documentation requirements. The proposed amendment requires a LIDDA to ensure compliance with 40 TAC Chapter 4, Subchapter L, Abuse, Neglect and Exploitation in Local Authorities and Community Centers, because those rules apply to LIDDAs providing service coordination to individuals in the TxHmL Program. The proposed amendment requires a LIDDA to ensure that a rights protection officer who receives a copy of an HHSC initial intake report or a final investigative report from an FMSA for an HHSC investigation of abuse, neglect, or exploitation of an individual receiving a service through the CDS option, gives a copy of the report to the individual's service coordinator so that the service coordinator can perform functions related to those reports as required by 40 TAC Chapter 41, Consumer Directed Services Option. The proposed amendment requires a service coordinator to recommend that HHSC terminate the individual's participation in the CDS option if certain conditions occur instead of recommending that financial management services and support consultation be terminated to be consistent with the how the requirement is worded in the rules for the HCS Program. The proposed amendment also requires a service coordinator to submit certain documentation to HHSC to make a recommendation that an individual's participation in the CDS option be terminated, which is consistent with the requirement for an HCS program provider. The proposed amendment makes a minor editorial change and updates a rule reference.

Proposed new §9.585, Certification Principles: Requirements Related to the Abuse, Neglect, and Exploitation of an Individual, requires a TxHmL program provider to inform an individual and LAR that an allegation of abuse, neglect or exploitation is reported to DFPS by calling the toll-free telephone number, 1 (800) 647-7418. The DFPS telephone number is included because DFPS is responsible for the intake of all reports alleging abuse, neglect, or exploitation of an individual. The proposed rule also requires that a program provider educate the individual and LAR about protecting the individual from abuse, neglect, and exploitation to help ensure the health and safety of the individual. The proposed rule requires a program provider to conduct training to ensure a staff member, service provider, and volunteer are knowledgeable of acts that constitute, signs and symptoms of, and methods to prevent abuse, neglect, and exploitation. The proposed rule requires a program provider to instruct a staff member, service provider, and volunteer to call the DFPS Abuse Hotline or use the DFPS Abuse Hotline website 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. The proposed rule requires a program provider to provide the instructions, in writing, to the staff member, service provider, and volunteer and to conduct the training before the staff member, service provider, or volunteer assumes job duties and at least annually thereafter. The proposed new rule requires a program provider, if the program provider, staff member, service provider, volunteer, or controlling person knows or suspects an individual is being or has been abused, neglected, or exploited, to 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 calling the DFPS Abuse Hotline or using the DFPS Abuse Hotline website. The proposed rule describes the actions that a program provider must take, if necessary, to support and protect an individual if a report required by subsection (b) of this section is made. The proposed rule requires the program provider, during an HHSC investigation of an alleged perpetrator who is a service provider, staff member, volunteer, or controlling person, to cooperate with the investigation; provide HHSC access to sites, individuals, service providers, staff members, volunteers, controlling persons, and pertinent records; and ensure that staff members, service providers, volunteers, and controlling persons comply with these requirements. The proposed rule also includes requirements regarding the program provider notifying the individual and LAR of the investigation finding and taking action in response to the HHSC investigation. The proposed rule describes the actions a program provider must take after the program provider receives a final investigative report from HHSC for an investigation in which the alleged perpetrator is a staff member, service provider, volunteer, or controlling person, including taking appropriate action within the program provider's authority to prevent the reoccurrence of abuse, neglect or exploitation; notifying the individual, the LAR, and the service coordinator of the investigation finding; and sending to HHSC the HHSC Notification to Waiver Survey and Certification (WSC) Regarding an Investigation of Abuse, Neglect or Exploitation form.

FISCAL NOTE

Ms. Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that for each year of the first five years that the sections will be in effect, there will be no fiscal implications to state or local governments as a result of enforcing and administering the sections as proposed.

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

(3) implementation of the proposed rules will not require an increase or decrease in future legislative appropriations;

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

(5) the proposed rules will create a new rule;

(6) the proposed rules will expand an existing rule;

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

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

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

Ms. Greta Rymal, Deputy Executive Commissioner for Financial Services, has also determined that there will be an adverse economic effect on HCS and TxHmL program providers that are small businesses or micro-businesses. Program providers may incur a cost for revising their policies and procedures; providing training related to abuse, neglect, and exploitation; and revising written information that must be provided to a staff member, service provider, and volunteer. HHSC lacks sufficient data to estimate the number of program providers designated as a small business or micro-business that would be impacted by the proposed rules.

HHSC determined that alternative methods to achieve the purpose of the proposed rules for small businesses or micro-businesses would not be consistent with ensuring the health and safety of individuals receiving services in the HCS and TxHmL Programs.

Ms. Rymal has determined that there will not be an adverse economic effect on rural communities because there is no rural community that contracts with HHSC as an HCS or TxHmL program provider.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There is an anticipated economic cost to persons who are required to comply with the sections as proposed. HCS and TxHmL program providers may incur a cost for revising policies and procedures; providing training related to abuse, neglect, and exploitation; and revising written information that must be provided to staff members, service providers, and volunteers. HHSC lacks sufficient data to estimate these costs.

There is no anticipated negative impact on local employment.

COSTS TO REGULATED PERSONS

Texas Government Code, §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas and to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT

Stephanie Muth, State Medicaid Director, has determined that for each year of the first five years the sections are in effect, the public will benefit from an improved system that identifies, addresses, and seeks to prevent instances of abuse, neglect, and exploitation, and provide greater protections for individuals in the HCS and TxHmL Programs who are subjected to abuse, neglect, and exploitation.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 4900 North Lamar Boulevard, Austin, Texas 78751; or e-mailed to HHSRulesCoordinationOffice@hhsc.state.tx.us.

To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday. Therefore, comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) e-mailed by midnight on the last day of the comment period. When e-mailing comments, please indicate "Comments on Proposed Rule 40R014" in the subject line.

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

40 TAC §§9.153, 9.175, 9.177, 9.178, 9.190

STATUTORY AUTHORITY

The amendments and new section are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendments and new section implement Texas Government Code, §531.0055, §531.021, and Texas Human Resources Code, §32.021.

§9.153.Definitions.

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

(1) Abuse--

(A) physical abuse;

(B) sexual abuse; or

(C) verbal or emotional abuse.

(2) [(1)] 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) [(2)] ADLs--Activities of daily living. Basic personal everyday activities, including tasks such as eating, toileting, grooming, dressing, bathing, and transferring.

(4) [(3)] Alarm call--A signal transmitted from an individual's CFC ERS equipment to the CFC ERS response center indicating that the individual needs immediate assistance.

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

(6) [(4)] Applicant--A Texas resident seeking services in the HCS Program.

(7) [(5)] 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 attempted preventive de-escalatory or redirection techniques;

(C) is not addressed in a written behavior support plan; and

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

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

(9) [(7)] Calendar day--Any day, including weekends and holidays.

(10) [(8)] CDS option--Consumer directed services option. A service delivery option as defined in §41.103 of this title (relating to Definitions).

(11) [(9)] CFC--Community First Choice.

(12) [(10)] CFC ERS--CFC emergency response services. 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.

(13) [(11)] 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.

(14) [(12)] CFC FMS--The term used for FMS on the IPC of an applicant or individual if the applicant or individual receives only CFC PAS/HAB through the CDS option.

(15) [(13)] CFC PAS/HAB--CFC personal assistance services/habilitation. A service that:

(A) consists of:

(i) personal assistance services that provide assistance to an individual in performing ADLs and 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 in 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 provides assistance to 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.

(16) [(14)] 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.

(17) [(15)] 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.

(18) 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.

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

(20) [(17)] Cognitive rehabilitation therapy--A service that:

(A) assists an individual in learning or relearning cognitive skills that have been lost or altered as a result 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.

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

(22) [(19)] Condition of a serious nature--Except as provided in paragraph (40) [(35)] of this section, a condition in which a program provider's noncompliance with a certification principle caused or could cause physical, emotional, or financial harm to one or more of the individuals receiving services from the program provider.

(23) [(20)] Contract--A provisional contract or a standard contract.

(24) 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;

(C) is a partner in a partnership 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.

(25) [(21)] CRCG--Community resource coordination group. 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, available on the HHSC website [at www.hhsc.state.tx.us].

(26) [(22)] Critical incident--An event listed in the HCS Provider User Guide found on the HHSC website [at www.dads.state.tx.us].

(27) [(23)] DADS--HHSC [The Department of Aging and Disability Services].

(28) [(24)] DARS--The Texas Workforce Commission [Department of Assistive and Rehabilitative Services].

(29) [(25)] DFPS--The Department of Family and Protective Services.

(30) [(26)] 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.

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

(A) an individual needing emergency medical care;

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

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

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

(32) 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.

(33) [(28)] 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.

(34) [(29)] FMS--Financial management services. A service, as defined in §41.103 of this title, that is provided to an individual participating in the CDS option.

(35) [(30)] FMSA--Financial management services agency. As defined in §41.103 of this title, an entity that provides financial management services to an individual participating in the CDS option.

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

(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.

(37) [(32)] Four-person residence--Aresidence:

(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 similar to residential support or supervised living (for example, services funded by DFPS or by a person's own resources); or

(iv) respite;

(C) that, if it is the residence of four persons, at least one of those persons receives residential support;

(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 §9.155(a)(5)(H) of this subchapter (relating to Eligibility Criteria and Suspension of HCS Program Services and of CFC Services).

(38) [(33)] Good cause--As used in §9.174(j) of this subchapter (relating to Certification Principles: Service Delivery), a reason outside the control of the CFC ERS provider, as determined by HHSC [DADS].

(39) [(34)] GRO--General residential operation. The term has the meaning set forth [Residential Operation. As defined] in Texas Human Resources Code, §42.002[, a child-care facility that provides care for more than 12 children for 24 hours a day, including facilities known as children's homes, halfway houses, residential treatment centers, emergency shelters, and therapeutic camps].

(40) [(35)] Hazard to health or safety--A condition in which serious injury or death of an individual or other person is imminent because of a program provider's noncompliance with a certification principle.

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

(42) [(37)] 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 an 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.

(43) [(38)] HHSC--The Texas Health and Human Services Commission.

(44) [(39)] IADLs--Instrumental activities of daily living. 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.

(45) [(40)] ICAP--Inventory for Client and Agency Planning.

(46) [(41)] ICF/IID--Intermediate care facility for individuals with an intellectual disability or related conditions. An ICF/IID is a facility in which ICF/IID Program services are provided and that is:

(A) licensed in accordance with THSC, Chapter 252; or

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

(47) [(42)] 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.

(48) [(43)] ID/RC Assessment--Intellectual Disability/Related Conditions Assessment. A form used by HHSC [DADS] for LOC determination and LON assignment.

(49) [(44)] 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 PDP that will be addressed using HCS Program services 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;

(C) a target date for completion of each objective;

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

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

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

(50) [(45)] Individual--A person enrolled in the HCS Program.

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

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

(53) [(48)] IPC--Individual plan of care. 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 [DADS].

(54) [(49)] IPC cost--Estimated annual cost of HCS Program services included on an IPC.

(55) [(50)] IPC year--A 12-month period of time 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.

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

(57) [(52)] LIDDA--Local intellectual and developmental disability authority. An entity designated by the executive commissioner of HHSC, in accordance with THSC, §533A.035.

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

(59) [(54)] LON--Level of need. An assignment given by HHSC [DADS] to an individual upon which reimbursement for host home/companion care, supervised living, residential support, and day habilitation is based.

(60) [(55)] LVN--Licensed vocational nurse. A person licensed to practice vocational nursing in accordance with Texas Occupations Code, Chapter 301.

(61) [(56)] Managed care organization--This term has the meaning set forth in Texas Government Code, §536.001.

(62) [(57)] MAO Medicaid--Medical Assistance Only Medicaid. A type of Medicaid by which an applicant or individual qualifies financially for Medicaid assistance but does not receive SSI benefits.

(63) 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.

(64) [(58)] 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 [DADS] data system of no more than three individuals.

(65) 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.

(66) [(59)] Military member--A member of the United States military serving in the Army, Navy, Air Force, Marine Corps, or Coast Guard 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.

[(60) 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.]

(67) [(61)] Natural supports--Unpaid persons, including family members, volunteers, neighbors, and friends, who assist and sustain an individual.

(68) 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.

(69) [(62)] Nursing facility--A facility licensed in accordance with THSC, Chapter 242.

(70) [(63)] PDP [(person-directed plan)]--Person-directed plan. A written plan, based on person-directed planning and developed with an applicant or individual in accordance with the HHSC [DADS] Person-Directed Plan form and discovery tool found on the HHSC website [at www.dads.state.tx.us], 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.

(71) [(64)] Performance contract--A written agreement between HHSC [DADS] and a LIDDA for the performance of delegated functions, including those described in THSC, §533A.035.

(72) [(65)] 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.

(73) [(66)] Permanency Planning Review Screen--A screen in the HHSC [DADS] 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.

(74) [(67)] 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.

(75) 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 not in compliance with federal and state laws, rules, and regulations; or

(D) seclusion.

(76) 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.

(77) [(68)] Post-move monitoring visit--As described in §17.503 of this title [,] (relating to Transition Planning for a Designated Resident), a visit conducted by the service coordinator in the individual's residence and other locations, as determined by the service planning team, for an individual who enrolled in the HCS Program from a nursing facility or enrolled in the HCS Program as a diversion from admission to a nursing facility. The purpose of the visit is to review the individual's residence and other locations to:

(A) assess whether essential supports identified in the transition plan are in place;

(B) identify gaps in care; and

(C) address such gaps, if any, to reduce the risk of crisis, re-admission to a nursing facility, or other negative outcome.

(78) [(69)] Pre-enrollment minor home modifications--Minor home modifications, as described in the HCS Program Billing Guidelines, 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.

(79) [(70)] Pre-enrollment minor home modifications assessment--An assessment performed by a licensed professional as required by the HCS Program Billing Guidelines to determine the need for pre-enrollment minor home modifications.

(80) [(71)] Pre-move site review--As described in §17.503 of this title, a review conducted by the service coordinator in the planned residence and other locations, as determined by the service planning team, for an applicant transitioning from a nursing facility to the HCS Program. The purpose of the review is to ensure that essential services and supports described in the applicant's transition plan are in place before the applicant moves to the residence or receives services in the other locations.

(81) [(72)] Program provider--A person, as defined in §49.102 of this title (relating to Definitions), that has a contract with HHSC [DADS] to provide HCS Program services, excluding an FMSA.

(82) [(73)] Provisional contract--An initial contract that HHSC [DADS] enters into with a program provider in accordance with §49.208 of this title (relating to Provisional Contract Application Approval) that has a stated expiration date.

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

(84) [(75)] 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;

(C) is likely to continue indefinitely; and

(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.

(85) [(76)] 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 Guidelines.

(86) [(77)] Renewal IPC--An IPC developed for an individual in accordance with §9.166(a) of this subchapter (relating to Renewal and Revision of an IPC).

(87) [(78)] Responder--A person designated to respond to an alarm call activated by an individual.

(88) [(79)] Restraint--Any of the following:

(A) a physical restraint;

(B) a mechanical restraint; or

(C) a chemical restraint.

[(A) A manual method, except for physical guidance or prompting of brief duration, or a mechanical device to restrict:]

[(i) the free movement or normal functioning of all or a portion of an individual's body; or]

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

[(B) Physical guidance or prompting of brief duration becomes a restraint if the individual resists the physical guidance or prompting.]

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

(89) [(81)] Revised IPC--An initial IPC or a renewal IPC that is revised during an IPC year in accordance with §9.166(b) or (d) of this subchapter to add a new HCS Program service or CFC service or change the amount of an existing service.

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

(91) [(82)] Seclusion--The involuntary [separation of an individual away from other individuals and the] placement of an [the] individual alone in an area from which the individual is prevented from leaving.

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

(93) [(84)] Service coordination--A service as defined in Chapter 2, Subchapter L of this title (relating to Service Coordination for Individuals with an Intellectual Disability).

(94) [(85)] Service coordinator--An employee of a LIDDA who provides service coordination to an individual.

(95) [(86)] 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 or individual and LAR;

(ii) service coordinator; and

(iii) other persons chosen by the applicant or 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) 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, a friend, or a teacher; and

(vii) at the discretion of the LIDDA, 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) 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.

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

(97) 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.

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

(99) 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.

(100) [(88)] Specialized services--As [Services] defined in §17.102 of this title (relating to Definitions).

(101) [(89)] SSI--Supplemental Security Income.

(102) [(90)] Staff member--An employee or contractor of an HCS Program provider.

(103) [(91)] Standard contract--A contract that HHSC [DADS] enters into with a program provider in accordance with §49.209 of this title (relating to Standard Contract) that does not have a stated expiration date.

(104) [(92)] State Medicaid claims administrator--The entity contracting with the state as the Medicaid claims administrator and fiscal agent.

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

(106) [(94)] Support consultation--A service, as defined in §41.103 of this title, that is provided to an individual participating in the CDS option at the request of the individual or LAR.

(107) [(95)] 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.

(108) [(96)] TANF--Temporary Assistance for Needy Families.

(109) [(97)] TAS--Transition assistance services. 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.

(110) [(98)] 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 similar to 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 or 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 §9.155(a)(5)(H) of this subchapter.

(111) [(99)] THSC--Texas Health and Safety Code. Texas statutes relating to health and safety.

(112) [(100)] Transition plan--As described in §17.503 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 the essential and nonessential services and supports the applicant needs to transition from a nursing facility to a community setting.

(113) [(101)] Transportation plan--A written plan, based on person-directed planning and developed with an applicant or individual using the HHSC [DADS] Individual Transportation Plan form found on the HHSC website [at www.dads.state.tx.us]. 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.

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

(115) 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.

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

§9.175.Certification Principles: Requirements Related to the Abuse, Neglect, and Exploitation of an Individual.

(a) A program provider must:

(1) ensure that an individual and LAR are, before or at the time the individual begins receiving an HCS Program service or a CFC service and at least annually thereafter:

(A) informed of how to report allegations of abuse, neglect, or exploitation to DFPS and are provided with the toll-free telephone number, 1-800-647-7418, in writing; 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

(C) provided with the instructions described in subparagraph (B) of this paragraph in writing; and

(3) conduct the activities described in paragraph (2)(A) - (C) of this subsection before a staff member, service provider, or volunteer assumes job duties and at least annually thereafter.

(b) 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) as necessary:

(A) obtain immediate medical or psychological services for the individual; and

(B) assist in obtaining ongoing medical or psychological services for the individual; and

(2) discuss with the individual or LAR alternative residential settings and additional services that may help ensure the individual's safety.

(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) as necessary:

(A) obtain immediate 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) preserve and protect any evidence related to the allegation; and

(4) 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

(C) records pertinent to the investigation of the allegation; 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 appropriate action within the program provider's authority to prevent the reoccurrence of abuse, neglect or exploitation, including, when warranted, 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, 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 40 TAC Chapter 711, Subchapter J (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 HHSC Notification to Waiver Survey and Certification (WSC) Regarding an Investigation of Abuse, Neglect or Exploitation form; 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.

§9.177.Certification Principles: Staff Member and Service 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.

(b) The program provider must employ or contract with a person or entity of the individual's or LAR's choice in accordance with this subsection.

(1) Except as provided by paragraph (2) of this subsection, the program provider must employ or contract with a person or entity of the individual's or LAR's choice to provide an HCS Program service or CFC service to the individual if that person or entity:

(A) is qualified to provide the service;

(B) unless the program provider agrees to pay a higher amount, provides the service at or below:

(i) for any service except CFC ERS, the direct services portion of the applicable HCS Program rate; and

(ii) for CFC ERS, the reimbursement rate; and

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

(2) The program provider may choose not to employ or contract with a person or entity of the individual's or LAR's choice in accordance with paragraph (1) of this subsection for good cause. The program provider must document the good cause.

(3) If a program provider contracts with a person or entity to provide TAS, the person or entity must have a contract to provide TAS in accordance with Chapter 49 of this title (relating to Contracting for Community Services).

(c) A program provider must comply with each applicable regulation required by the State of Texas in ensuring that its operations and staff members and service providers meet state certification, licensure, or regulation for any tasks performed or services delivered in part or in entirety for the HCS Program.

(d) A program provider must:

(1) conduct initial and periodic training that ensures [:]

[(A)] staff members and service providers are qualified to deliver services as required by the current needs and characteristics of the individuals to whom they deliver services, including the use of restraint in accordance with §9.179 of this subchapter (relating to Certification Principles: Restraint); and

[(B) staff members, service providers, and volunteers are knowledgeable about the information described in §49.310(3)(A) of this title (relating to Abuse, Neglect, and Exploitation Allegations); and]

(2) ensure that a staff member who participates in developing an implementation plan for CFC PAS/HAB completes person-centered service planning training approved by HHSC:

(A) by June 1, 2017, if the staff member was hired on or before June 1, 2015; or

(B) within two years after hire, if the staff member was hired after June 1, 2015.

(e) The program provider must implement and maintain personnel practices that safeguard individuals against infectious and communicable diseases.

(f) The program provider's operations must prevent:

(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 from which the program provider, staff member, or service provider could financially benefit, except payment for room and board;

(2) financial impropriety toward an individual including:

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

(B) the purchase of goods that an individual cannot use with the individual's funds;

(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.

(g) The program provider must employ or contract with a person who oversees the provision of HCS Program services and CFC services to an individual. The person must:

(1) have at least three years paid work experience in planning and providing HCS Program services or CFC services to an individual with an intellectual disability or related condition as verified by written statements from the person's employer; or

(2) have both of the following:

(A) at least three years of experience planning and providing services similar to HCS Program services or CFC services to a person with an intellectual disability or related condition as verified by written statements from organizations or agencies that provided services to the person; and

(B) participation as a member of a microboard as verified, in writing, by:

(i) the certificate of formation of the non-profit corporation under which the microboard operates filed with the Texas Secretary of State;

(ii) the bylaws of the non-profit corporation; and

(iii) a statement by the board of directors of the non-profit corporation that the person is a member of the microboard.

(h) The program provider must ensure that a service provider of day habilitation, supported home living, host home/companion care, supervised living, residential support, and respite is at least 18 years of age and:

(1) has a high school diploma or a certificate recognized by a state as the equivalent of a high school diploma; or

(2) has documentation of a proficiency evaluation of experience and competence to perform the job tasks that includes:

(A) a written competency-based assessment of the ability to document service delivery and observations of the individuals to be served; and

(B) at least three written personal references from persons not related by blood that indicate the ability to provide a safe, healthy environment for the individuals being served.

(i) The program provider must ensure that each service provider of professional therapies is currently qualified by being licensed by the State of Texas or certified in the specific area for which services are delivered or be providing services in accordance with state law.

(j) The program provider must ensure that a service provider of behavioral support services:

(1) meets one of the following:

(A) is licensed as a psychologist in accordance with Texas Occupations Code, Chapter 501;

(B) is licensed as a psychological associate in accordance with Texas Occupations Code, Chapter 501;

(C) has been issued a provisional license to practice psychology in accordance with Texas Occupations Code, Chapter 501;

(D) is certified by HHSC [DADS] as described in §5.161 of this title (relating to Certified Authorized Provider);

(E) is licensed as a licensed clinical social worker in accordance with Texas Occupations Code, Chapter 505;

(F) is licensed as a licensed professional counselor in accordance with Texas Occupations Code, Chapter 503; or

(G) is licensed as a licensed behavior analyst in accordance with Texas Occupations Code, Chapter 506 [is certified as a behavior analyst by the Behavior Analyst Certification Board, Inc.]; and

(2) completes the web-based HHSC [DADS] HCS and TxHmL Behavioral Support Services Provider Policy Training available on the HHSC website [at www.dads.state.tx.us]:

(A) before providing behavioral support services;

(B) within 90 calendar days after the date HHSC [DADS] issues notice to program providers that HHSC [DADS] revised the web-based training; and

(C) within three years after the most recent date of completion.

(k) The program provider must ensure that a service provider who provides transportation:

(1) has a valid driver's license; and

(2) transports individuals in a vehicle insured in accordance with state law.

(l) The program provider must ensure that dental treatment is provided by a dentist licensed by the Texas State Board of Dental Examiners in accordance with Texas Occupations Code, Chapter 256.

(m) The program provider must ensure that nursing services are provided by a nurse who is currently qualified by being licensed by the Texas Board of Nursing as an RN or LVN.

(n) The program provider must comply with §49.304 of this title (relating to Background Checks).

(o) A program provider must comply with §49.312(a) of this title (relating to Personal Attendants).

(p) 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 (o) of this section as if the contractor were the program provider.

(q) The program provider must ensure that a service provider of cognitive rehabilitation therapy is:

(1) a psychologist licensed in accordance with Texas Occupations Code, Chapter 501;

(2) a speech-language pathologist licensed in accordance with Texas Occupations Code, Chapter 401; or

(3) an occupational therapist licensed in accordance with Texas Occupations Code, Chapter 454.

(r) The program provider must ensure that a service provider of employment assistance or a service provider of supported employment:

(1) is at least 18 years of age;

(2) is not:

(A) the spouse of the individual; or

(B) a parent of the individual if the individual is a minor; and

(3) has:

(A) a bachelor's degree in rehabilitation, business, marketing, or a related human services field, and at least six months of paid or unpaid experience providing services to people with disabilities;

(B) an associate's degree in rehabilitation, business, marketing, or a related human services field, and at least one year of paid or unpaid experience providing services to people with disabilities; or

(C) a high school diploma or a certificate recognized by a state as the equivalent of a high school diploma, and at least two years of paid or unpaid experience providing services to people with disabilities.

(s) A program provider must ensure that the experience required by subsection (r) of this section is evidenced by:

(1) for paid experience, a written statement from a person who paid for the service or supervised the provision of the service; and

(2) for unpaid experience, a written statement from a person who has personal knowledge of the experience.

(t) A program provider must ensure that a service provider of TAS:

(1) is at least 18 years of age;

(2) has a high school diploma or a certificate recognized by a state as the equivalent of a high school diploma;

(3) is not a relative of the applicant;

(4) is not the LAR of the applicant;

(5) does not live with the applicant; and

(6) is capable of providing TAS and complying with the documentation requirements described in §9.174(g)(2)(A) of this subchapter (relating to Certification Principles: Service Delivery).

(u) A program provider must:

(1) ensure that a service provider of CFC PAS/HAB:

(A) is at least 18 years of age;

(B) has:

(i) a high school diploma or a certificate recognized by a state as the equivalent of a high school diploma; or

(ii) documentation of a proficiency evaluation of experience and competence to perform the job tasks that includes:

(I) a written competency-based assessment of the ability to document service delivery and observations of the individuals to be served; and

(II) at least three written personal references from persons not related by blood that indicate the ability to provide a safe, healthy environment for the individuals being served;

(C) is not:

(i) the spouse of the individual; or

(ii) a parent of the individual if the individual is a minor; and

(D) meets any other qualifications requested by the individual or LAR based on the individual's needs and preferences; and

(2) if requested by an individual or LAR:

(A) allow the individual or LAR to:

(i) train a CFC PAS/HAB service provider in the specific assistance needed by the individual; and

(ii) have the service provider perform CFC PAS/HAB in a manner that comports with the individual's personal, cultural, or religious preferences; and

(B) ensure that a CFC PAS/HAB service provider attends training by HHSC [or DADS] so the service provider meets any additional qualifications desired by the individual or LAR.

§9.178.Certification Principles: Quality Assurance.

(a) In the provision of HCS Program services and CFC services to an individual, the program provider must promote the active and maximum cooperation with:

(1) providers of services other than HCS Program services or CFC services; and

(2) advocates or other actively involved persons.

(b) The program provider must ensure personalized service delivery based upon the choices made by each individual or LAR and those choices that are available to persons without an intellectual disability or other disability.

(c) Before providing services to an individual in a residence in which host home/companion care, 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 healthy, comfortable, safe, appropriate, and typical of other residences in the community, suited for the individual's abilities, and is in compliance with applicable federal, state, and local regulations for the community in which the individual lives;

(2) ensure that the service coordinator is provided with a copy of the results of the on-site inspection within five calendar days after completing the inspection;

(3) complete any action identified in the on-site inspection for a residence in which supervised living or residential support will be provided to ensure that the residence meets the needs of the individual; and

(4) ensure 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.

(d) The program provider must ensure that:

(1) emergency plans are maintained in each residence in which host home/companion care, supervised living or residential support is provided;

(2) the emergency plans address relevant emergencies appropriate for the type of service, geographic location, and the individuals living in the residence;

(3) the individuals and service providers follow the plans during drills and actual emergencies; and

(4) documentation of drills and responses to actual emergencies are maintained in each residence.

(e) 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) ensure that the four-person residence meets one of the following:

(i) is certified by:

(I) the local fire safety authority having jurisdiction in the location of the residence as being in compliance with the applicable portions of the National Fire Protection Association 101: Life Safety Code (Life Safety Code) as determined by the local fire safety authority;

(II) the local fire safety authority having jurisdiction in the location of the residence as being in compliance with the applicable portions of the International Fire Code (IFC) as determined by the local fire safety authority; or

(III) the Texas State Fire Marshal's Office as being in compliance with the applicable portions of the Life Safety Code as determined by the Texas State Fire Marshal's Office; or

(ii) as described in paragraph (2) of this subsection, is certified by HHSC [DADS] as being in compliance with the portions of the Life Safety Code applicable to small residential board and care facilities and most recently adopted by the Texas State Fire Marshal's Office; and

(B) obtain HHSC [DADS] approval of the residence in accordance with §9.188 of this subchapter (relating to DADS Approval of Residences).

(2) HHSC [DADS] inspects for certification as described in paragraph (1)(A)(ii) of this subsection only if the program provider submits to the HHSC [DADS] 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 [DADS] Form 5606 available on the HHSC website [at www.dads.state.tx.us ] documenting that the local fire safety authority having jurisdiction refused to inspect for certification using the code (i.e. the Life Safety Code or IFC) 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 [DADS] form "Request for Life Safety Inspection-HCS Four-Person Home" available on the HHSC website [at www.dads.state.tx.us].

(3) The program provider must:

(A) obtain the certification required by paragraph (1)(A) of 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 [DADS]; and

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

(f) The program provider must establish an ongoing consumer/advocate advisory committee composed of individuals, 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 (k)(6) [(p)(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.

(g) The program provider must make available all records, reports, and other information related to the delivery of HCS Program services and CFC services as requested by HHSC [DADS], other authorized agencies, or CMS and deliver such items, as requested, to a specified location.

(h) The program provider must conduct, at least annually, a satisfaction survey of individuals and LARs and take action regarding any areas of dissatisfaction.

(i) The program provider must comply with §49.309 of this title (relating to Complaint Process).

[(j) The program provider must:]

[(1) ensure that the individual and LAR are informed of how to report allegations of abuse, neglect, or exploitation to DFPS and are provided with the DFPS toll-free telephone number (1-800-647-7418) in writing;]

[(2) comply with §49.310(4) of this title (relating to Abuse, Neglect, and Exploitation Allegations); and]

[(3) ensure that all staff members, service providers, and volunteers:]

[(A) are 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;]

[(B) are provided with the DFPS toll-free telephone number (1-800-647-7418) in writing; and]

[(C) comply with §49.310(3)(B) of this title.]

[(k) If the program provider suspects an individual has been or is being abused, neglected, or exploited or is notified of an allegation of abuse, neglect, or exploitation, the program provider must take necessary actions to secure the safety of the individual, including:]

[(1) obtaining immediate and ongoing medical or psychological services for the individual as necessary;]

[(2) if necessary, restricting access by the alleged perpetrator of the abuse, neglect, or exploitation to the individual or other individuals pending investigation of the allegation; and]

[(3) notifying, as soon as possible but no later than 24 hours after the program provider reports or is notified of an allegation, the individual, the individual's LAR, and the service coordinator of the allegation report and the actions that have been or will be taken.]

[(l) Staff members, service providers, and volunteers must cooperate with the DFPS investigation of an allegation of abuse, neglect, or exploitation, including:]

[(1) providing complete access to all HCS Program service sites owned, operated, or controlled by the program provider;]

[(2) providing complete access to individuals and program provider personnel;]

[(3) providing access to all records pertinent to the investigation of the allegation; and]

[(4) preserving and protecting any evidence related to the allegation in accordance with DFPS instructions.]

[(m) The program provider must:]

[(1) promptly, but not later than five calendar days after the program provider's receipt of a DFPS investigation report:]

[(A) notify the individual, the LAR, and the service coordinator of:]

[(i) the investigation finding; and]

[(ii) the corrective action taken by the program provider in response to the DFPS investigation; and]

[(B) notify the individual or LAR of:]

[(i) the process to appeal the investigation finding as described in Chapter 711, Subchapter M of this title (relating to Requesting an Appeal if You are the Reporter, Alleged Victim, Legal Guardian, or with Disability Rights Texas); and]

[(ii) the process for requesting a copy of the investigative report from the program provider;]

[(2) report to DADS in accordance with DADS instructions the program provider's response to the DFPS investigation that involves a staff member or service provider within 14 calendar days after the program provider's receipt of the investigation report; and]

[(3) upon request of the individual or LAR, provide to the individual or LAR a copy of the DFPS investigative report after concealing any information that would reveal the identity of the reporter or of any individual who is not the alleged victim.]

[(n) If abuse, neglect, or exploitation is confirmed by the DFPS investigation, the program provider must take appropriate action to prevent the reoccurrence of abuse, neglect or exploitation, including, when warranted, disciplinary action against or termination of the employment of a staff member confirmed by the DFPS investigation to have committed abuse, neglect, and exploitation.]

(j) [(o)] 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.

(k) [(p)] 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 §49.309 of this title, and identify program process improvements to reduce the filing of complaints;

(3) review all final investigative reports from HHSC and, based on the review, [incidents of abuse, neglect, or exploitation and] identify program process improvements that help [will] prevent the occurrence [reoccurrence ] of abuse, neglect, and exploitation [such incidents] and improve the [service] delivery of services;

(4) review the reasons for terminating HCS Program services or CFC services and identify any related need for program process improvements;

(5) evaluate critical incident data described in subsection (t) [(y)] of this section and compare the program provider's [its] use of restraint to aggregate data provided by HHSC on the HHSC website [DADS at www.dads.state.tx.us ] and identify program process improvements that help [will] 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 (f) 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 (f)(2) of this section and implement the recommendations approved by the program provider.

(l) [(q)] The program provider must ensure that all personal information concerning an individual, such as lists of names, addresses, and records obtained by the program provider is kept confidential, 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 his or her LAR is obtained beforehand.

(m) [(r)] 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 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) divide the room cost described in paragraph (1) of this subsection by 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;

(B) divide the board cost described in paragraph (2) of this subsection by the number of persons consuming the food; and

(C) add the amounts calculated in accordance with subparagraphs (A) and (B) of this paragraph.

(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 LAR selects a residence, a program provider must provide the room and board charge, in writing, to the individual or LAR.

(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) A program provider who manages personal funds of an individual who receives host home/companion care:

(A) may pay a room and board charge for the individual that is less than the foster/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;

(B) must pay the host home/companion care provider directly from the individual's account; and

(C) 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.

(n) [(s)] 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.

(o) [(t)] 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.

(p) [(u)] 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 that includes:

(i) the amount of the expenditure;

(ii) the date of the expenditure;

(iii) the person to whom the expenditure was made;

(iv) except as described in clause (vi) of this subparagraph, a written statement issued by the person to whom the expenditure was made that includes the date the statement was created and the cost of the item or service paid for;

(v) if the statement described in clause (iv) of this subparagraph documents an expenditure for more than one individual, the amount allocated to each individual identified on the statement; and

(vi) if the expenditure is made to the individual for personal spending money, an acknowledgement signed by the individual indicating that the funds were received.

(3) 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.

(4) If an expense is accrued as described in paragraph (3) of this subsection, the program provider must enter into a written payment plan with the individual or LAR for reimbursement of the funds.

(q) [(v)] If the program provider determines that an individual's behavior may require the implementation of behavior management techniques involving intrusive interventions or restriction of the individual's rights, the program provider must comply with this subsection.

(1) The program provider must:

(A) obtain an assessment of the individual's needs and current level and severity of the behavior; and

(B) ensure that a service provider of behavioral support services:

(i) develops, with input from the individual, LAR, program provider, and actively involved persons, a behavior support plan that includes the use of techniques appropriate to the level and severity of the behavior; and

(ii) considers the effects of the techniques on the individual's physical and psychological well-being in developing the plan.

(2) The behavior support plan must:

(A) describe how the behavioral data concerning the behavior is collected and monitored;

(B) allow for the decrease in the use of the techniques based on the behavioral data; and

(C) allow for revision of the plan when desired behavior is not displayed or the techniques are not effective.

(3) Before implementation of the behavior support plan, the program provider must:

(A) obtain written consent from the individual or LAR to implement the plan;

(B) provide written notification to the individual or LAR of the right to discontinue implementation of the plan at any time; and

(C) notify the individual's service coordinator of the plan.

(4) The program provider must, at least annually:

(A) review the effectiveness of the techniques and determine whether the behavior support plan needs to be continued; and

(B) notify the service coordinator if the plan needs to be continued.

(r) [(w)] A [The] program provider must report the death of an individual:

(1) to HHSC [DADS] and the LIDDA [service coordinator] by the end of the next business day after the program provider becomes aware of [following] the death; and [or the program provider's learning 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 [learns] of the [individual's] death.

(s) [(x)] A program provider must not [discharge or otherwise] 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 [:]

[(A) misuse of restraint by the program provider;]

[(B) use of seclusion by the program provider; or]

[(C)] possible abuse, neglect, or exploitation of an individual; or

(2) an individual because a person [someone ] on behalf of the individual files a complaint, presents a grievance, or otherwise provides good faith information relating to the [:]

[(A) misuse of restraint by the program provider;]

[(B) use of seclusion by the program provider; or]

[(C)] possible abuse, neglect, or exploitation of an individual.

(t) [(y)] A program provider must enter critical incident data in the HHSC [DADS] data system no later than the last [30] calendar [days after the last] day of the month that follows the month being reported in accordance with the HCS Provider User Guide.

(u) [(z)] A [The] program provider must ensure that:

(1) the name and phone number of an alternate to the Chief Executive Officer (CEO) [CEO] of the program provider is entered in the HHSC [DADS] data system; and

(2) the alternate to the CEO:

(A) performs the duties of the CEO during the CEO's absence; and

(B) if the CEO is named as an alleged perpetrator of abuse, neglect, or exploitation of an individual, acts as the contact person in an HHSC [a DFPS] investigation [if the CEO is named as an alleged perpetrator of abuse, neglect, or exploitation of an individual] and complies with §9.175(d) - (f) of this subchapter (relating to Requirements Related to the Abuse, Neglect, and Exploitation of an Individual) [subsections (k) - (n) of this section].

§9.190.LIDDA Requirements for Providing Service Coordination in the HCS Program.

(a) In addition to the requirements described in Chapter 2, Subchapter L of this title (relating to Service Coordination for Individuals with an Intellectual Disability), a LIDDA must [, in the provision of service coordination in the HCS Program,] ensure:

(1) compliance with:

(A) [the requirements in] this subchapter; [and]

(B) Chapter 41 of this title (relating to Consumer Directed Services Option); and .

(C) Chapter 4, Subchapter L, of this title (relating to Abuse, Neglect, and Exploitation in Local Authorities and Community Centers); and

(2) a rights protection officer, as required by §4.113 of this title (relating to Rights Protection Officer at a State MR Facility or MRA), who receives a copy of an HHSC initial intake report or a final investigative report from an FMSA, in accordance with §41.702 of this title (relating to Requirements Related to HHSC Investigations When an Alleged Perpetrator is a Service Provider) or §41.703 of this title (relating to Requirements Related to HHSC Investigations When an Alleged Perpetrator is a Staff Person or a Controlling Person of an FMSA), gives a copy of the report to the individual's service coordinator.

(b) A LIDDA must employ service coordinators who:

(1) meet the minimum qualifications and LIDDA staff training requirements specified in Chapter 2, Subchapter L of this title; and

(2) have received training about:

(A) the HCS Program and CFC, including the requirements of this subchapter and the HCS Program services and CFC services described in §9.154 of this subchapter (relating to Description of the HCS Program and CFC); and

(B) Chapter 41 of this title.

(c) A LIDDA must have a process for receiving and resolving complaints from a program provider related to the LIDDA's provision of service coordination or the LIDDA's process to enroll an applicant in the HCS Program.

(d) If, as a result of monitoring, the service coordinator identifies a concern with the implementation of the PDP, the LIDDA must ensure that the concern is communicated to the program provider and attempts are made to resolve the concern. The LIDDA may refer an unresolved concern to HHSC by calling the HHSC Complaint and Incident Intake toll-free telephone number at 1-800-458-9858 [DADS Consumer Rights and Services].

(e) A service coordinator must:

(1) assist an individual or LAR in exercising the legal rights of the individual as a citizen and as a person with a disability;

(2) provide an [applicant or] individual, LAR, or family member with a written copy of the rights of the individual as described in §9.173(b) of this subchapter (relating to Certification Principles: Rights of Individuals) and the booklet [titled] Your Rights In the Home and Community-based Services (HCS)[a Home and Community-Based Services] Program, available on the HHSC website, [(which is found at www.dads.state.tx.us]) and an oral explanation of such rights:

(A) upon the individual's enrollment in the HCS Program;

(B) upon revision of the booklet;

(C) upon request; and

(D) upon change in the [an] individual's legal status (that is when the individual turns 18 years of age, is appointed a guardian, or loses a guardian);

(3) document the provision of the rights described in §9.173(b) of this subchapter, and the booklet and oral explanation required by paragraph (2) of this subsection, and ensure that the documentation is signed by:

(A) the individual or LAR; and

(B) the service coordinator;

(4) ensure that, upon enrollment of an individual and annually thereafter [at the time an applicant is enrolled], the individual [applicant] or LAR is informed orally and in writing of the following [processes for filing complaints as follows]:

(A) the telephone number of the LIDDA to file a complaint;

(B) the toll-free telephone number of the HHSC Complaint and Incident Intake, 1-800-458-9858, [DADS] to file a complaint; and

(C) the toll-free telephone number of DFPS, 1-800-647-7418, [(1-800-647-7418)] to report an allegation of abuse, neglect, or exploitation;

(5) maintain for an individual for an IPC year:

(A) a copy of the IPC;

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

(C) a copy of the ID/RC Assessment;

(D) documentation of the activities performed by the service coordinator in providing service coordination; and

(E) any other pertinent information related to the individual;

(6) initiate, coordinate, and facilitate person-directed planning, including scheduling service planning team meetings;

(7) to meet the needs of an individual as those needs are identified, develop for the individual a full range of services and resources using:

(A) providers for services other than HCS Program services and CFC services; and

(B) advocates or other actively involved persons;

(8) ensure that the PDP for an applicant or individual:

(A) is developed, reviewed, and updated in accordance with:

(i) §9.158(j)(4)(A) of this subchapter (relating to Process for Enrollment of Applicants);

(ii) §9.166 of this subchapter (relating to Renewal and Revision of an IPC); and

(iii) §2.556 of this title (relating to LIDDA's Responsibilities);

(B) states, for each HCS Program service, other than supervised living and residential support, and for each CFC service, whether the service is critical to the individual's health and safety as determined by the service planning team;

(9) participate in the development, renewal, and revision of an individual's IPC in accordance with §9.158 and §9.166 of this subchapter;

(10) ensure that the service planning team participates in the renewal and revision of the IPC for an individual in accordance with §9.166 of this subchapter and ensure that the service planning team completes other responsibilities and activities as described in this subchapter;

(11) notify the service planning team of the information conveyed to the service coordinator pursuant to §9.178(q)(3)(C) [§9.178(v)(3)(C)] and (4)(B) of this subchapter (relating to Certification Principle: Quality Assurance);

(12) if a change to an individual's PDP is needed, other than as required by §9.166 of this subchapter:

(A) communicate the need for the change to the individual or LAR, the program provider, and other appropriate persons; and

(B) revise the PDP as necessary;

(13) provide an individual's program provider a copy of the individual's current PDP;

(14) monitor the delivery of HCS Program services, CFC services, and non-HCS Program and non-CFC services to an individual;

(15) document whether an individual progresses toward desired outcomes identified on the individual's PDP;

(16) together with the program provider, ensure the coordination and compatibility of HCS Program services and CFC services with non-HCS Program and non-CFC services, including, in coordination with the program provider, assisting an individual in obtaining a neurobehavioral or neuropsychological assessment and plan of care from a qualified professional as described in §9.174(a)(27)(B) of this subchapter (relating to Certification Principles: Service Delivery);

(17) for an individual who has had a guardian appointed, determine, at least annually, if the letters of guardianship are current;

(18) for an individual who has not had a guardian appointed, make a referral of guardianship to a court, if appropriate;

(19) immediately notify the program provider if the service coordinator becomes aware that an emergency necessitates the provision of an HCS Program service or a CFC service to ensure the individual's health or safety and the service is not on the IPC or exceeds the amount on the IPC;

(20) if informed by the program provider that an individual's HCS Program services or CFC services have been suspended:

(A) request the program provider enter necessary information in the HHSC [DADS] data system to inform HHSC [DADS] of the suspension;

(B) review the individual's status and document in the individual's record the reasons for continuing the suspension, at least every 90 calendar days after the effective date of the suspension; and

(C) to continue suspension of the services for more than 270 calendar days, submit to HHSC [DADS] written documentation of each review made in accordance with subparagraph (B) of this paragraph and a request for approval by HHSC [DADS] to continue the suspension;

(21) if notified by the program provider that an individual or LAR has refused a nursing assessment and that the program provider has determined it cannot ensure the individual's health, safety, and welfare in the provision of a service as described in §9.174(e) of this of this subchapter [title (relating to Certification Principles: Service Delivery)]:

(A) inform the individual or LAR of the consequences and risks of refusing the assessment, including that the refusal will result in the individual not receiving:

(i) nursing services; or

(ii) host home/companion care, residential support, supervised living, supported home living, respite, employment assistance, supported employment, day habilitation, or CFC PAS/HAB, if the individual needs one of those services and the program provider has determined that it cannot ensure the health and safety of the individual in the provision of the service; and

(B) notify the program provider if the individual or LAR continues to refuse the assessment after the discussion with the service coordinator;

(22) notify the program provider if the service coordinator becomes aware that an individual has been admitted to a setting described in §9.155(e) of this subchapter (relating to Eligibility Criteria and Suspension of HCS Program Services and of CFC Services);

(23) if the service coordinator determines that HCS Program services or CFC services provided to an individual should be terminated, including for a reason described in §9.158(k)(15)(A) or (B) of this subchapter:

(A) document a description of:

(i) the situation that resulted in the service coordinator's determination that services should be terminated;

(ii) the attempts by the service coordinator to resolve the situation; and

(B) send a written recommendation to terminate the individual's HCS Program services or CFC services to HHSC [DADS] and include the documentation required by subparagraph (A) of this paragraph;

(C) provide a copy of the written recommendation and the documentation required by subparagraph (A) of this paragraph to the program provider;

(24) if an individual requests termination of all HCS Program services or all CFC services, the service coordinator must, within ten calendar days after the individual's request:

(A) inform the individual or LAR of:

(i) the individual's option to transfer to another program provider;

(ii) the consequences of terminating HCS Program services and CFC services; and

(iii) possible service resources upon termination, including CFC services through a managed care organization; and

(B) submit documentation to HHSC [DADS] that:

(i) states the reason the individual is making the request; and

(ii) demonstrates that the individual or LAR was provided the information required by subparagraph (A)(ii) and (iii) of this paragraph;

(25) in accordance with HHSC's [DADS] instructions, manage the process to transfer an individual's HCS Program services and CFC services from one program provider to another or transfer from one FMSA to another, including:

(A) informing the individual or LAR who requests a transfer to another program provider or FMSA that the service coordinator will manage the transfer process;

(B) informing the individual or LAR that the individual or LAR may choose:

(i) to receive HCS Program services and CFC services from any program provider that is in the geographic location preferred by the individual or LAR and whose enrollment has not reached its service capacity in the HHSC [DADS] data system; or

(ii) to transfer to any FMSA in the geographic location preferred by the individual or LAR; and

(C) if the individual or LAR has not selected another program provider or FMSA, providing the individual or LAR with a list of and contact information for HCS Program providers and FMSAs in the geographic location preferred by the individual or LAR;

(26) be objective in assisting an individual or LAR in selecting a program provider or FMSA;

(27) at the time of assignment and as changes occur, ensure that an individual and LAR and program provider are informed of the name of the individual's service coordinator and how to contact the service coordinator;

(28) unless contraindications are documented with justification by the service planning team, ensure that a school-age individual receives educational services in a six-hour-per-day program, five days per week, provided by the local school district and that no individual receives educational services at a state supported living center or at a state center;

(29) unless contraindications are documented with justification by the service planning team, ensure that an adult individual under retirement age is participating in a day activity of the individual's choice that promotes achievement of PDP outcomes for at least six hours per day, five days per week;

(30) unless contraindications are documented with justification by the service planning team, ensure that a pre-school-age individual receives an early childhood education with appropriate activities and services, including small group and individual play with peers without disabilities;

(31) unless contraindications are documented with justification by the service planning team, ensure that an individual of retirement age has opportunities to participate in day activities appropriate to individuals of the same age and consistent with the individual's or LAR's choice;

(32) 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;

(33) assist an 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;

(34) 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 a case of an emergency;

(35) if the program provider notifies the service coordinator that the program provider is unable to locate the parent or LAR in accordance with §9.174(a)(8)(D) of this subchapter [(relating to Certification Principles: Service Delivery)] or the LIDDA notifies the service coordinator that the LIDDA is unable to locate the parent or LAR in accordance with §9.167(b)(9) of this subchapter (relating to Permanency Planning):

(A) make reasonable attempts to locate the parent or LAR by contacting a person identified by the parent or LAR in the contact information described in paragraph (37)(A) - (B) of this subsection; and

(B) notify HHSC [DADS], no later than 30 calendar days after the date the service coordinator determines the service coordinator is unable to locate the parent or LAR, of the determination and request that HHSC [DADS] initiate a search for the parent or LAR;

(36) if the service coordinator determines that a parent's or LAR's contact information described in paragraph (37)(A) of this subsection is no longer current:

(A) make reasonable attempts to locate the parent or LAR by contacting a person identified by the parent or LAR in the contact information described in paragraph (37)(B) of this subsection; and

(B) notify HHSC [DADS], no later than 30 calendar days after the date the service coordinator determines the service coordinator is unable to locate the parent or LAR, of the determination and request that HHSC [DADS] initiate a search for the parent or LAR;

(37) request from and encourage the parent or LAR of an individual under 22 years of age requesting or receiving supervised living or residential support to provide the service coordinator 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 HHSC [DADS] or the service coordinator 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

(C) a signed acknowledgement of responsibility stating that the parent or LAR agrees to:

(i) notify the service coordinator 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;

(38) within three business days after initiating supervised living or residential support to an individual under 22 years of age:

(A) provide the information listed in subparagraph (B) of this paragraph to the following:

(i) the CRCG for the county in which the individual's LAR lives (see the HHSC website [www.hhsc.state.tx.us] for a listing of CRCG chairpersons by county); and

(ii) the local school district for the area in which the three- or four-person residence is located, if the individual is at least three years of age, or the early childhood intervention (ECI) program for the county in which the residence is located, if the individual is less than three years of age (see the HHSC website [http://www.dars.state.tx.us/ecis/searchprogram.asp] to search for an ECI program by zip code or by county); and

(B) as required by subparagraph (A) of this paragraph, provide the following information to the entities described in subparagraph (A) of this paragraph:

(i) the individual's full name;

(ii) the individual's gender;

(iii) the individual's ethnicity;

(iv) the individual's birth date;

(v) the individual's social security number;

(vi) the LAR's name, address, and county of residence;

(vii) the date of initiation of supervised living or residential support;

(viii) the address where supervised living or residential support is provided; and

(ix) the name and phone number of the person providing the information;

(39) for an applicant or individual under 22 years of age seeking or 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:

(i) the initial development and annual review of the individual's PDP;

(ii) decision making regarding the individual's medical care;

(iii) routine service planning team meetings; and

(iv) decision making and other activities involving the individual's health and safety;

(B) ensure that reasonable accommodations include:

(i) conducting a meeting in person or by telephone, as mutually agreed upon by the program provider and the LAR;

(ii) conducting a meeting at a time and location, if the meeting is in person, that is mutually agreed upon by the program provider and the LAR;

(iii) if the LAR has a disability, providing reasonable accommodations in accordance with the Americans with Disabilities Act, including providing an accessible meeting location or a sign language interpreter, if appropriate; and

(iv) providing a language interpreter, if appropriate;

(C) provide written notice to the LAR of a meeting to conduct an annual review of the individual's PDP at least 21 calendar days before the meeting date and request a response from the LAR regarding whether the LAR intends to participate in the annual review;

(D) before an individual who is under 18 years of age, or who is 18-21 years of age and has an LAR, moves to another residence operated by the program provider, attempt to obtain consent for the move from the LAR unless the move is made because of a serious risk to the health or safety of the individual or another person; and

(E) document compliance with subparagraphs (A) - (D) of this paragraph in the individual's record;

(40) conduct:

(A) a pre-move site review for an applicant 21 years of age or older who is enrolling in the HCS Program from a nursing facility; and

(B) post-move monitoring visits for an individual 21 years of age or older who 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;

(41) have a face-to-face contact with an individual to provide service coordination during a month in which it is anticipated that the individual will not receive an HCS Program service unless:

(A) the individual's HCS Program services have been suspended; or

(B) the service coordinator had a face-to-face contact with the individual that month to comply with §2.556(d) of this title (relating to LIDDA's [MRA's] Responsibilities); and

(42) at least annually:

(A) using an HHSC [a DADS] form, provide an oral and written explanation to the individual or LAR of:

(i) the eligibility requirements for HCS Program services as described in §9.155(a) of this subchapter; and

(ii) if the individual's PDP includes CFC services:

(I) the eligibility requirements for CFC services as described in §9.155(c) of this subchapter; and

(II) the eligibility requirements for CFC services as described in §9.155(d) of this subchapter to individuals who receive MAO Medicaid; and

(B) using an HHSC [a DADS] form, provide an oral and written explanation to the individual or LAR of all HCS Program services and CFC services.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900476

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-4639


SUBCHAPTER N. TEXAS HOME LIVING (TXHML) PROGRAM AND COMMUNITY FIRST CHOICE (CFC)

40 TAC §§9.553, 9.555, 9.579, 9.580, 9.583, 9.585

STATUTORY AUTHORITY

The amendments and new section are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendments and new section implement Texas Government Code, §531.0055, §531.021, and Texas Human Resources Code, §32.021.

§9.553.Definitions.

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

(1) Abuse--

(A) physical abuse;

(B) sexual abuse; or

(C) verbal or emotional abuse.

(2) [(1)] ADLs--Activities of daily living. Basic personal everyday activities including tasks such as eating, toileting, grooming, dressing, bathing, and transferring.

(3) [(2)] Alarm call--A signal transmitted from an individual's CFC ERS equipment to the CFC ERS response center indicating that the individual needs immediate assistance.

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

(5) [(3)] Applicant--A Texas resident seeking services in the TxHmL Program.

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

(7) [(5)] Calendar day--Any day, including weekends and holidays.

(8) [(6)] CDS option--Consumer directed services option. A service delivery option as defined in §41.103 of this title (relating to Definitions).

(9) [(7)] CFC--Community First Choice.

(10) [(8)] CFC ERS--CFC emergency response services. 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.

(11) [(9)] 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

(12) [(10)] CFC FMS--The term used for FMS on the IPC of an applicant or individual if the applicant or individual receives only CFC PAS/HAB through the CDS option.

(13) [(11)] CFC PAS/HAB--CFC personal assistance services/habilitation. A service:

(A) that consists of:

(i) personal assistance services that provide assistance to an individual in performing ADLs and 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 in 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 provides assistance to 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.

(14) [(12)] 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.

(15) [(13)] 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.

(16) 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.

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

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

(19) [(16)] Condition of a serious nature--Except as provided in paragraph (30) [(24)] of this section, a condition in which a program provider's noncompliance with a certification principle caused or could cause physical, emotional, or financial harm to one or more of the individuals receiving services from the program provider.

(20) [(17)] Contract--A provisional contract or a standard contract.

(21) 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;

(C) is a partner in a partnership 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.

(22) [(18)] Critical incident--An event listed in the TxHmL Provider User Guide found at http://www2.mhmr.state.tx.us/655/cis/training/txhmlGuide.html.

(23) [(19)] DADS--HHSC [The Department of Aging and Disability Services].

(24) Department of Assistive and Rehabilitative Services--The Texas Workforce Commission.

(25) [(20)] DFPS--The Department of Family and Protective Services.

(26) 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.

(27) [(21)] FMS--Financial management services. A service, as defined in §41.103 of this title, that is provided to an individual participating in the CDS option.

(28) [(22)] FMSA--Financial management services agency. As defined in §41.103 of this title, an entity that provides financial management services to an individual participating in the CDS option.

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

(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.

(30) [(24)] Good cause--As used in §9.578 of this subchapter (relating to Program Provider Certification Principles: Service Delivery), a reason outside the control of the CFC ERS provider, as determined by HHSC [DADS].

(31) [(25)] Hazard to health or safety--A condition in which serious injury or death of an individual or other person is imminent because of a program provider's noncompliance with a certification principle.

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

(33) [(27)] 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 an 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.

(34) [(28)] HHSC--The Texas Health and Human Services Commission.

[(29) ICAP--Inventory for Client and Agency Planning.]

(35) [(30)] IADLs--Instrumental activities of daily living. 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.

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

(37) [(31)] ICF/IID--Intermediate care facility for individuals with an intellectual disability or related conditions. An ICF/IID is a facility in which ICF/IID Program services are provided and that is:

(A) licensed in accordance with THSC, Chapter 252; or

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

(38) [(32)] 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.

(39) [(33)] ID/RC Assessment--A form used by HHSC [DADS] for LOC determination and LON assignment.

(40) [(34)] Implementation plan--A written document developed by a program provider for an individual that, for each TxHmL Program service, except for transportation provided as a community support 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 PDP that will be addressed using TxHmL Program services 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;

(C) a target date for completion of each objective;

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

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

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

(41) [(35)] Individual--A person enrolled in the TxHmL Program.

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

(43) [(37)] IPC--Individual plan of care. A written plan that:

(A) states:

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

(ii) the services and supports to be provided to the individual through resources other than TxHmL 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 [DADS].

(44) [(38)] IPC cost--Estimated annual cost of program services included on an IPC.

(45) [(39)] IPC year--A 12-month period of time starting on the date an authorized initial or renewal IPC begins.

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

(47) [(41)] LIDDA--Local intellectual and developmental disability authority. An entity designated by the executive commissioner of HHSC, in accordance with THSC §533A.035.

(48) [(42)] LOC--Level of care. A determination made by HHSC [DADS] about an applicant or individual as part of the TxHmL Program eligibility determination process based on data electronically transmitted on the ID/RC Assessment.

(49) [(43)] LON--Level of need. An assignment given by HHSC [DADS] for an applicant or individual that is derived from the service level score obtained from the administration of the ICAP [Inventory for Client and Agency Planning (ICAP)] to the individual and from selected items on the ID/RC Assessment.

(50) [(44)] LVN--Licensed vocational nurse. A person licensed to practice vocational nursing in accordance with Texas Occupations Code, Chapter 301.

(51) [(45)] Managed care organization--This term has the meaning set forth in Texas Government Code, §536.001.

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

(53) 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.

(54) [(47)] 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 the TxHmL 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 TxHmL Program services or CFC services; and

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

(55) 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.

(56) [(48)] Military member--A member of the United States military serving in the Army, Navy, Air Force, Marine Corps, or Coast Guard 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.

[(49) 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.]

(57) [(50)] Natural supports--Unpaid persons, including family members, volunteers, neighbors, and friends, who assist and sustain an individual.

(58) 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.

(59) [(51)] Nursing facility--A facility licensed in accordance with THSC, Chapter 242.

(60) [(52)] Own home or family home--A residence that is not:

(A) an ICF/IID;

(B) a nursing facility;

(C) an assisted living facility licensed or subject to being licensed in accordance with THSC, Chapter 247;

(D) a residential child-care operation licensed or subject to being licensed by DFPS unless it is a foster family home or a foster group home;

(E) a facility licensed or subject to being licensed by the Department of State Health Services;

(F) a residential facility operated by the Texas Workforce Commission [Department of Assistive and Rehabilitative Services];

(G) a residential facility operated by the Texas Juvenile Justice Department, a jail, or a prison; or

(H) a setting in which two or more dwellings, including units in a duplex or apartment complex, single family homes, or facilities listed in subparagraphs (A) - (G) of this paragraph, but excluding supportive housing under Section 811 of the National Affordable Housing Act of 1990, meet all of the following criteria:

(i) the dwellings create a residential area distinguishable from other areas primarily occupied by persons who do not require routine support services because of a disability;

(ii) most of the residents of the dwellings are persons with an intellectual disability; and

(iii) the residents of the dwellings are provided routine support services through personnel, equipment, or service facilities shared with the residents of the other dwellings.

(61) [(53)] PDP--Person-directed plan. A written plan, based on person-directed planning and developed with an applicant or individual in accordance with the HHSC [DADS] Person-Directed Plan form and discovery tool found on the HHSC website [at www.dads.state.tx.us], that describes the supports and services necessary to achieve the desired outcomes identified by the applicant, individual, or LAR and ensure the applicant's or individual's health and safety.

(62) [(54)] Performance contract--A written agreement between HHSC [DADS] and a LIDDA for the performance of delegated functions, including those described in THSC, §533A.035.

(63) 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 not in compliance with federal and state laws, rules, and regulations; or

(D) seclusion.

(64) 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.

(65) [(55)] Post-move monitoring visit--As described in §17.503 of this title, (relating to Transition Planning for a Designated Resident), a visit conducted by the service coordinator in the individual's residence and other locations, as determined by the service planning team, for an individual who enrolled in the TxHmL Program from a nursing facility or enrolled in the TxHmL Program as a diversion from admission to a nursing facility. The purpose of the visit is to review the individual's residence and other locations to:

(A) assess whether essential supports identified in the transition plan are in place;

(B) identify gaps in care; and

(C) address such gaps, if any, to reduce the risk of crisis, re-admission to a nursing facility, or other negative outcome.

(66) [(56)] Pre-move site review--As described in §17.503 of this title, [(relating to Transition Planning for a Designated Resident),] a review conducted by the service coordinator in the planned residence and other locations, as determined by the service planning team, for an applicant transitioning from a nursing facility to the TxHmL Program. The purpose of the review is to ensure that essential services and supports described in the applicant's transition plan are in place before the applicant moves to the residence or receives services in the other locations.

(67) [(57)] Program provider--A person, as defined in §49.102 of this title (relating to Definitions), that has a contract with HHSC [DADS] to provide TxHmL Program services, excluding an FMSA.

(68) [(58)] Provisional contract--An initial contract that HHSC [DADS] enters into with a program provider in accordance with §49.208 of this title (relating to Provisional Contract Application Approval) that has a stated expiration date.

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

(70) [(60)] 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;

(C) is likely to continue indefinitely; and

(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.

(71) [(61)] Respite facility--A site that is not a residence and that is owned or leased by a program provider for the purpose of providing out-of-home respite to not more than six individuals receiving TxHmL Program services or other persons receiving similar services at any one time.

(72) [(62)] Responder--A person designated to respond to an alarm call activated by an individual.

(73) Restraint--Any of the following:

(A) a physical restraint;

(B) a mechanical restraint; or

(C) a chemical restraint.

(74) [(63)] RN--Registered nurse. A person licensed to practice professional nursing in accordance with Texas Occupations Code, Chapter 301.

(75) [(64)] Seclusion--The involuntary [separation of an individual away from other individuals and the] placement of an [the] individual alone in an area from which the individual is prevented from leaving.

(76) [(65)] Service backup plan--A plan that ensures continuity of a service that is critical to an individual's health and safety if service delivery is interrupted.

(77) [(66)] Service coordination--A service as defined in Chapter 2, Subchapter L of this title (relating to Service Coordination for Individuals with an Intellectual Disability).

(78) [(67)] Service coordinator--An employee of a LIDDA who provides service coordination to an individual.

(79) [(68)] 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 or 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 TxHmL Program, a planning team consisting of:

(i) the applicant and LAR;

(ii) 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, a friend, or a teacher; and

(vii) at the discretion of the LIDDA, 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 TxHmL program from a nursing facility or has enrolled in the TxHmL Program as a diversion from admission to a nursing facility, for 180 days after enrollment, a planning team consisting of:

(i) the individual and LAR;

(ii) 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) at the discretion of the LIDDA, other persons who are directly involved in the delivery of services to persons with an intellectual or developmental disability.

(80) [(69)] Service provider--A person, who may be a staff member, who directly provides a TxHmL Program service or CFC service to an individual.

(81) 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.

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

(83) 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.

(84) [(70)] Specialized services--Services defined in §17.102 of this title (relating to Definitions).

(85) [(71)] Staff member--An employee or contractor of a TxHmL Program provider.

(86) [(72)] Standard contract--A contract that HHSC [DADS] enters into with a program provider in accordance with §49.209 of this title (relating to Standard Contract) that does not have a stated expiration date.

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

(88) [(74)] 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.

(89) [(75)] Support consultation--A service, as defined in §41.103 of this title, that is provided to an individual participating in the CDS option at the request of the individual or LAR.

(90) [(76)] TAC--Texas Administrative Code. A compilation of state agency rules published by the Texas Secretary of State in accordance with Texas Government Code, Chapter 2002, Subchapter C.

(91) [(77)] THSC--Texas Health and Safety Code. Texas statutes relating to health and safety.

(92) [(78)] Transition plan--As described in §17.503 of this title, a written plan developed by the service planning team for an applicant residing in a nursing facility who is enrolling in the TxHmL Program. A transition plan includes the essential and nonessential services and supports the applicant needs to transition from a nursing facility to a community setting.

(93) [(79)] Transportation plan--A written plan, based on person-directed planning and developed with an applicant or individual using the HHSC [DADS] Individual Transportation Plan form found on the HHSC website [at www.dads.state.tx.us]. A transportation plan is used to document how transportation as a community support activity will be delivered to support an individual's desired outcomes and purposes for transportation as identified in the PDP.

(94) [(80)] TxHmL Program--The Texas Home Living Program, operated by HHSC [DADS] and approved by CMS in accordance with §1915(c) of the Social Security Act, that provides community-based services and supports to eligible individuals who live in their own homes or in their family homes.

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

(96) 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.

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

§9.555.Description of TxHmL Program Services.

(a) Community support provides services and supports in an individual's home and at other community locations that are necessary to achieve outcomes identified in an individual's PDP.

(1) Community support provides:

(A) habilitative or support activities that:

(i) provide or foster improvement of or facilitate an individual's ability to perform functional living skills and other activities of daily living;

(ii) assist an individual to develop competencies in maintaining the individual's home life;

(iii) foster improvement of or facilitate an individual's ability and opportunity to:

(I) participate in typical community activities including activities that lead to successful employment;

(II) access and use of services and resources available to all citizens in the individual's community;

(III) interact with members of the community;

(IV) access and use available non-TxHmL Program services or supports for which the individual may be eligible; and

(V) establish or maintain relationships with people who are not paid service providers that expand or sustain the individual's natural support network;

(B) transportation; and or

(C) assistance in obtaining transportation.

(2) Community support, as determined by an assessment conducted by an RN, provides assistance with medications and the performance of tasks delegated by an RN in accordance with state law and rules, unless a physician has delegated the task as a medical act under Texas Occupations Code, Chapter 157, as documented by the physician.

(3) Community support does not include payment for room or board.

(4) Community support may not be provided to the individual at the same time that any of the following services are provided:

(A) respite;

(B) day habilitation;

(C) employment assistance with the individual present; or

(D) supported employment with the individual present.

(b) Day habilitation assists an individual to acquire, retain, or improve self-help, socialization, and adaptive skills necessary to live successfully in the community and participate in home and community life.

(1) Day habilitation provides:

(A) individualized activities consistent with achieving the outcomes identified in the individual's PDP;

(B) activities necessary to reinforce therapeutic outcomes targeted by other waiver services, school, or other support providers;

(C) services in a group setting other than the individual's home for normally up to five days a week, six hours per day;

(D) personal assistance for an individual who cannot manage personal care needs during the day habilitation activity;

(E) as determined by an assessment conducted by an RN, assistance with medications and the performance of tasks delegated by an RN in accordance with state law and rules, unless a physician has delegated the task as a medical act under Texas Occupations Code, Chapter 157, as documented by the physician; and

(F) transportation during the day habilitation activity necessary for the individual's participation in day habilitation activities.

(2) Day habilitation may not be provided at the same time that any of the following services are provided:

(A) respite;

(B) community support;

(C) employment assistance with the individual present;

(D) supported employment with the individual present; or

(E) CFC PAS/HAB.

(c) Nursing provides treatment and monitoring of health care procedures ordered or prescribed by a practitioner and as required by standards of professional practice or state law to be performed by an RN or LVN. Nursing includes:

(1) administering medication;

(2) monitoring an individual's use of medications;

(3) monitoring an individual's health risks, data, and information, including ensuring that an unlicensed service provider is performing only those nursing tasks identified in a nursing assessment;

(4) assisting an individual or LAR to secure emergency medical services for the individual;

(5) making referrals for appropriate medical services;

(6) performing health care procedures as ordered or prescribed by a practitioner and required by standards of professional practice or law to be performed by an RN or LVN;

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

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

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

(10) an RN doing the following:

(A) performing 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;

(B) documenting information from performance of a nursing assessment;

(C) if an individual is receiving a service through CDS, providing a copy of the documentation described in described in subparagraph (B) of this paragraph to the individual's service coordinator;

(D) developing the nursing service portion of an individual's implementation plan required by §9.578(c)(2) of this subchapter (relating to Program Provider Certification Principles: Service Delivery), which includes developing a plan and schedule for monitoring and supervising delegated nursing tasks; and

(E) making and documenting decisions related to the delegation of a nursing task to an unlicensed service provider;

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

(A) 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:

(I) an oral medication;

(II) a topical medication; or

(III) 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:

(I) trained by an RN or an LVN under the direction of an RN regarding the proper administration of medication; or

(II) determined to be competent by an RN or an 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

(B) ensuring that an RN or an 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.

(d) Employment assistance:

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

(2) consists of a service provider performing the following activities:

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

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

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

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

(E) participating in service planning team meetings;

(3) is not provided to an individual with the individual present at the same time that respite, community support, day habilitation, or supported employment, or CFC PAS/HAB is provided;

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

(A) 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

(B) paying the 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 an individual's business; and

(5) as determined by an assessment conducted by an RN, provides assistance with medications and the performance of tasks delegated by an RN in accordance with state law and rules, unless a physician has delegated the task as a medical act under Texas Occupations Code, Chapter 157, as documented by the physician.

(e) Supported employment:

(1) is assistance provided to an individual:

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

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

(2) consists of a service provider performing the following activities:

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

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

(C) participating in service planning team meetings;

(3) is not provided to an individual with the individual present at the same time that respite, community support, day habilitation, employment assistance, or CFC PAS/HAB is provided;

(4) does not include sheltered work or other similar types of vocational services furnished in specialized facilities, or using Medicaid funds paid by HHSC [DADS] to the program provider for incentive payments, subsidies, or unrelated vocational training expenses, such as:

(A) paying an employer:

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

(ii) 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

(B) paying the individual:

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

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

(5) as determined by an assessment conducted by an RN, provides assistance with medications and the performance of tasks delegated by an RN in accordance with state law and rules, unless a physician has delegated the task as a medical act under Texas Occupations Code, Chapter 157, as documented by the physician.

(f) Behavioral support provides specialized interventions that assist an individual to increase adaptive behaviors to replace or modify challenging or socially unacceptable behaviors that prevent or interfere with the individual's inclusion in home and family life or community life. Behavioral support includes:

(1) assessment and analysis of assessment findings of the behavior(s) to be targeted necessary to design an appropriate behavioral support plan;

(2) development of an individualized behavioral support plan consistent with the outcomes identified in the individual's PDP;

(3) training of and consultation with the LAR, family members, or other support providers and, as appropriate, with the individual in the purpose/objectives, methods and documentation of the implementation of the behavioral support plan or revisions of the plan;

(4) monitoring and evaluation of the success of the behavioral support plan implementation; and

(5) modification, as necessary, of the behavioral support plan based on documented outcomes of the plan's implementation.

(g) Adaptive aids enable an individual to increase mobility, the ability to perform activities of daily living, or the ability to perceive, control, or communicate with the environment in which the individual lives. Adaptive aids include devices, controls, appliances, or supplies and the repair or maintenance of such aids, if not covered by warranty, as specified in the TxHmL Program Billing Guidelines.

(1) Adaptive aids are provided to address specific needs identified in an individual's PDP and are limited to:

(A) lifts;

(B) mobility aids;

(C) positioning devices;

(D) control switches/pneumatic switches and devices;

(E) environmental control units;

(F) medically necessary supplies;

(G) communication aids;

(H) adapted/modified equipment for activities of daily living; and

(I) safety restraints and safety devices.

(2) Adaptive aids may be provided up to a maximum of $10,000 per individual per IPC year.

(3) Adaptive aids do not include items or supplies that are not of direct medical or remedial benefit to the individual or that are available to the individual through the Medicaid State Plan, through other governmental programs, or through private insurance.

(h) Minor home modifications are physical adaptations to the individual's home that are necessary to ensure the health, welfare, and safety of the individual or to enable the individual to function with greater independence in the home and the repair or maintenance of such adaptations, if not covered by warranty.

(1) Minor home modifications may be provided up to a lifetime limit of $7,500 per individual. After the $7,500 lifetime limit has been reached, an individual is eligible for an additional $300 per IPC year for additional modifications or maintenance of home modifications.

(2) Minor home modifications do not include adaptations or improvements to the home that are of general utility, are not of direct medical or remedial benefit to the individual, or add to the total square footage of the home.

(3) Minor home modifications are limited to:

(A) purchase and repair of mobility/wheelchair ramps;

(B) modifications to bathroom facilities;

(C) modifications to kitchen facilities; and

(D) specialized accessibility and safety adaptations.

(i) Dental treatment may be provided up to a maximum of $1,000 per individual per IPC year for the following treatments:

(1) emergency dental treatment;

(2) preventive dental treatment;

(3) therapeutic dental treatment; and

(4) orthodontic dental treatment, excluding cosmetic orthodontia.

(j) Respite is provided for the relief of an unpaid caregiver of an individual when the caregiver is temporarily unavailable to provide supports.

(1) Respite includes:

(A) assistance with activities of daily living and functional living tasks;

(B) assistance with planning and preparing meals;

(C) transportation or assistance in securing transportation;

(D) assistance with ambulation and mobility;

(E) as determined by an assessment conducted by an RN, assistance with medications and the performance of tasks delegated by an RN in accordance with state law and rules, unless a physician has delegated the task as a medical act under Texas Occupations Code, Chapter 157, as documented by the physician;

(F) habilitation and support that facilitate:

(i) an individual's inclusion in community activities, use of natural supports and typical community services available to all people;

(ii) an individual's social interaction and participation in leisure activities; and

(iii) development of socially valued behaviors and daily living and independent living skills.

(2) Reimbursement for respite provided in a setting other than the individual's residence includes payment for room and board.

(3) Respite may be provided in the individual's residence or, if certification principles stated in §9.578(o) of this subchapter are met, in other locations.

(k) Professional therapies provide assessment and treatment by a licensed professional who meets the qualifications specified in §9.579 of this subchapter (relating to Certification Principles: Staff Member and Service Provider Requirements [Qualified Personnel]) and include training and consultation with an individual's LAR, family members or other support providers. Professional therapies available under the TxHmL Program are:

(1) audiology services;

(2) speech/language pathology services;

(3) occupational therapy services;

(4) physical therapy services;

(5) dietary services; and

[(6) social work services; and]

(6) [(7)] behavioral support.

(l) FMS are provided if the individual's IPC includes at least one TxHmL Program service to be delivered through the CDS option.

(m) Support consultation is provided at the request of the individual or LAR if the individual's IPC includes at least one TxHmL Program service to be delivered through the CDS option.

§9.579.Certification Principles: Staff Member and Service Provider Requirements [Qualified Personnel].

(a) The program provider must ensure the continuous availability of trained and qualified employees and contractors to provide the services in an individual's IPC.

(b) The program provider must comply with applicable laws and regulations to ensure that:

(1) its operations meet necessary requirements; and

(2) its employees or contractors possess legally necessary licenses, certifications, registrations, or other credentials and are in good standing with the appropriate professional agency before performing any function or delivering services.

(c) The program provider must employ or contract with a service provider of the individual's or LAR's choice to provide a TxHmL Program service or a CFC service if that service provider:

(1) is qualified to provide the service;

(2) unless the program provider agrees to pay a higher amount, provides the service at or below:

(A) for any service except CFC ERS, the direct services portion of the applicable TxHmL Program rate; and

(B) for CFC ERS, the reimbursement rate; and

(3) contracts with or is employed by the program provider.

(d) The program provider must:

(1) conduct initial and periodic training that ensures [:]

[(A)] staff members and service providers are trained and qualified to deliver services as required by the current needs and characteristics of the individual to whom they deliver services; and

[(B) staff members, service providers, and volunteers are knowledgeable about the information described in §49.310(3)(A) of this title (relating to Abuse, Neglect, and Exploitation Allegations); and]

(2) ensure that a staff member who participates in developing an implementation plan for CFC PAS/HAB completes person-centered service planning training approved by HHSC:

(A) by June 1, 2017, if the staff member was hired on or before June 1, 2015; or

(B) within two years after hire, if the staff member was hired after June 1, 2015.

(e) The program provider must implement and maintain personnel practices that safeguard an individual against infectious and communicable diseases.

(f) The program provider must prevent:

(1) conflicts of interest between program provider personnel and an individual;

(2) financial impropriety toward an individual;

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

(4) threats of harm or danger toward an individual's possessions.

(g) The program provider must employ or contract with a person who oversees the provision of TxHmL Program services and CFC services to an individual. The person must:

(1) have at least three years paid work experience in planning and providing TxHmL Program services or CFC services to an individual with an intellectual disability or related condition as verified by written statements from the person's employer; or

(2) have both of the following:

(A) at least three years of experience planning and providing services similar to TxHmL Program services or CFC services to a person with an intellectual disability or related condition as verified by written statements from organizations or agencies that provided services to the person; and

(B) participation as a member of a microboard, as verified in writing by:

(i) the certificate of formation of the non-profit corporation under which the microboard operates filed with the Texas Secretary of State;

(ii) the bylaws of the non-profit corporation; and

(iii) a statement by the board of directors of the non-profit corporation that the person is a member of the microboard.

(h) The program provider must ensure that a service provider of community support, day habilitation, or respite is at least 18 years of age and:

(1) has a high school diploma or a certificate recognized by a state as the equivalent of a high school diploma; or

(2) has documentation of a proficiency evaluation of experience and competence to perform the job tasks that includes:

(A) written competency-based assessment of the ability to document service delivery and observations of an individual to be served; and

(B) at least three written personal references from persons not related by blood that indicate the ability to provide a safe, healthy environment for an individual being served.

(i) The program provider must ensure that a service provider of employment assistance or a service provider of supported employment:

(1) is at least 18 years of age;

(2) is not:

(A) the spouse of the individual; or

(B) a parent of the individual if the individual is a minor; and

(3) has:

(A) a bachelor's degree in rehabilitation, business, marketing, or a related human services field, and at least six months of paid or unpaid experience providing services to people with disabilities;

(B) an associate's degree in rehabilitation, business, marketing, or a related human services field, and at least one year of paid or unpaid experience providing services to people with disabilities; or

(C) a high school diploma or a certificate recognized by a state as the equivalent of a high school diploma, and at least two years of paid or unpaid experience providing services to people with disabilities.

(j) A program provider must ensure that the experience required by subsection (i) of this section is evidenced by:

(1) for paid experience, a written statement from a person who paid for the service or supervised the provision of the service; and

(2) for unpaid experience, a written statement from a person who has personal knowledge of the experience.

(k) The program provider must ensure that a service provider who provides transportation:

(1) has a valid driver's license; and

(2) transports individuals in a vehicle insured in accordance with state law.

(l) The program provider must ensure that dental treatment is provided by a dentist licensed in accordance with Texas Occupations Code, Chapter 256.

(m) The program provider must ensure that nursing is provided by an RN or an LVN.

(n) The program provider must ensure that adaptive aids meet applicable standards of manufacture, design, and installation.

(o) The program provider must ensure that a service provider of behavioral support:

(1) meets one of the following:

(A) is licensed as a psychologist in accordance with Texas Occupations Code, Chapter 501;

(B) is licensed as a psychological associate in accordance with Texas Occupations Code, Chapter 501;

(C) is certified by HHSC [DADS] as described in §5.161 of this title (relating to Certified Authorized Provider);

(D) is licensed as a licensed behavior analyst in accordance with Texas Occupations Code, Chapter 506 [is certified as a behavior analyst by the Behavior Analyst Certification Board, Inc.];

(E) has been issued a provisional license to practice psychology in accordance with Texas Occupations Code, Chapter 501;

(F) is licensed as a licensed clinical social worker in accordance with Texas Occupations Code, Chapter 505; or

(G) is licensed as a licensed professional counselor in accordance with Texas Occupations Code, Chapter 503; and

(2) completes the web-based HHSC [DADS] HCS and TxHmL Behavioral Support Services Provider Policy Training available on the HHSC website [at www.dads.state.tx.us]:

(A) before providing behavioral support services;

(B) within 90 calendar days after the date HHSC [DADS] issues notice to program providers that HHSC [DADS] revised the web-based training; and

(C) within three years after the most recent date of completion.

(p) The program provider must ensure that minor home modifications are delivered by contractors who provide the service in accordance with state and local building codes and other applicable regulations.

(q) The program provider must ensure that a service provider of professional therapies is licensed for the specific therapeutic service provided as follows:

(1) for audiology services, an audiologist licensed in accordance with Texas Occupations Code, Chapter 401;

(2) for speech and language pathology services, a speech-language pathologist or licensed assistant in speech-language pathology licensed in accordance with Texas Occupations Code, Chapter 401;

(3) for occupational therapy services, an occupational therapist or occupational therapy assistant licensed in accordance with Texas Occupations Code, Chapter 454;

(4) for physical therapy services, a physical therapist or physical therapist assistant licensed in accordance with Texas Occupations Code, Chapter 453; and

(5) for dietary services, a licensed dietitian licensed in accordance with Texas Occupations Code, Chapter 701. [; and]

[(6) for social work services, a social worker licensed in accordance with Texas Occupations Code, Chapter 505.]

(r) The program provider must comply with §49.304 of this title (relating to Background Checks).

(s) A program provider must comply with §49.312(a) of this title (relating to Personal Attendants).

(t) If the service provider of community support 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 (s) of this section as if the contractor were the program provider.

(u) A program provider must:

(1) ensure that a service provider of CFC PAS/HAB:

(A) is at least 18 years of age;

(B) has:

(i) a high school diploma or a certificate recognized by a state as the equivalent of a high school diploma; or

(ii) documentation of a proficiency evaluation of experience and competence to perform the job tasks that includes:

(I) a written competency-based assessment of the ability to document service delivery and observations of the individuals to be served; and

(II) at least three written personal references from persons not related by blood that indicate the ability to provide a safe, healthy environment for the individuals being served;

(C) is not:

(i) the spouse of the individual; or

(ii) a parent of the individual if the individual is a minor; and

(D) meets any other qualifications requested by the individual or LAR based on the individual's needs and preferences; and

(2) if requested by an individual or LAR:

(A) allow the individual or LAR to train a CFC PAS/HAB service provider in the specific assistance needed by the individual and to have the service provider perform CFC PAS/HAB in a manner that comports with the individual's personal, cultural, or religious preferences; and

(B) ensure that a CFC PAS/HAB service provider attends training by HHSC [or DADS] so the service provider meets any additional qualifications desired by the individual or LAR.

§9.580.Certification Principles: Quality Assurance.

(a) The program provider must:

(1) assist the individual or LAR in understanding the requirements for participation in the TxHmL Program and include the individual or LAR in planning service provision and any changes to the plan for service provision if changes become necessary;

(2) assist and cooperate with the individual's or LAR's request to transfer to another program provider;

(3) assist the individual to access public accommodations or services available to all citizens;

(4) assist the individual to manage the individual's financial affairs upon documentation of the individual's or LAR's written request for such assistance;

(5) ensure that any restriction affecting the individual is approved by the individual's service planning team before the imposition of the restriction;

(6) inform the individual or LAR about the individual's health, mental condition, and related progress;

(7) inform the individual or LAR of the name and qualifications of any person serving the individual and the option to choose among various available service providers;

(8) provide the individual or LAR access to TxHmL Program and CFC records, including, if applicable, financial records maintained on the individual's behalf, about the individual and the delivery of services by the program provider to the individual;

(9) assist the individual to communicate by phone or by mail during the provision of TxHmL Program services or CFC services unless the service planning team has agreed to limit the individual's access to communicating by phone or by mail;

(10) assist the individual, as specified in the individual's PDP, to attend religious activities as chosen by the individual or LAR;

(11) ensure the individual is free from unnecessary restraints during the provision of TxHmL Program services or CFC services;

(12) regularly inform the individual or LAR about the individual's or program provider's progress or lack of progress made in the implementation of the PDP;

(13) receive and act on complaints about the TxHmL Program services or CFC services provided by the program provider;

(14) ensure that the individual is free from abuse, neglect, or exploitation by program provider staff members, service providers, and volunteers;

(15) provide active, individualized assistance to the individual or LAR in exercising the individual's rights and exercising self-advocacy, including:

(A) making complaints;

(B) registering to vote;

(C) obtaining citizenship information and education;

(D) obtaining advocacy services; and

(E) obtaining information regarding legal guardianship;

(16) provide the individual privacy during treatment and care of personal needs;

(17) include the individual's LAR in decisions involving the planning and provision of TxHmL Program services and CFC services;

(18) inform the individual or LAR of the process for reporting a complaint to HHSC [DADS] or the LIDDA when the program provider's resolution of a complaint is unsatisfactory to the individual or LAR, including the HHSC Complaint and Incident Intake toll-free [DADS Office of Consumer Rights and Services] telephone number, 1-800-458-9858, to initiate complaints and [(1-800-458-9858) or] the LIDDA telephone number to initiate complaints;

(19) ensure the individual is free from seclusion;

(20) inform the individual or LAR, orally and in writing, of the requirements described in paragraphs (1) - (19) of this subsection:

(A) when the individual is enrolled in the program provider's program;

(B) if the requirements described in paragraphs (1)-(19) of this subsection are revised;

(C) at the request of the individual or LAR; and

(D) if the legal status of the individual changes;

(21) obtain an acknowledgement stating that the information described in paragraph (20) of this subsection was provided to the individual or LAR and that is signed by:

(A) the individual or LAR;

(B) the program provider staff person providing such information; and

(C) a third-party witness; and

(22) notify the individual's service coordinator of an individual's or LAR's expressed interest in the CDS option and document such notification.

(b) The program provider must make available all records, reports, and other information related to the delivery of TxHmL Program services and CFC services as requested by HHSC [DADS], other authorized agencies, or CMS and deliver such items, as requested, to a specified location.

(c) At least annually, the program provider must conduct a satisfaction survey of individuals, their families, and LARs, and take action regarding any areas of dissatisfaction.

(d) The program provider must comply with §49.309 of this title (relating to Complaint Process).

[(e) The program provider must:]

[(1) ensure that the individual and the LAR are informed of how to report allegations of abuse, neglect, or exploitation to DFPS and are provided with the DFPS toll-free telephone number (1-800-647-7418) in writing;]

[(2) comply with §49.310(4) of this title (relating to Abuse, Neglect, and Exploitation Allegations); and]

[(3) ensure that all staff members, service providers, and volunteers:]

[(A) are 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; and]

[(B) are provided with the DFPS toll-free telephone number (1-800-647-7418) in writing; and]

[(C) comply with §49.310(3)(B) of this title.]

[(f) Upon suspicion that an individual has been or is being abused, neglected, or exploited or notification of an allegation of abuse, neglect or exploitation, the program provider must take necessary actions to secure the safety of the individual, including:]

[(1) obtaining immediate and on-going medical and other appropriate supports for the individual, as necessary;]

[(2) restricting access by the alleged perpetrator of the abuse, neglect, or exploitation to the individual or other individuals pending investigation of the allegation, when an alleged perpetrator is an employee or contractor of the program provider; and]

[(3) notifying, as soon as possible but no later than 24 hours after the program provider reports or is notified of an allegation, the individual, the individual's LAR, and the LIDDA of the allegation report and the actions that have been or will be taken.]

[(g) The program provider must ensure that staff members, service providers, and volunteers cooperate with the DFPS investigation of an allegation of abuse, neglect, or exploitation, including:]

[(1) providing complete access to all TxHmL Program service sites owned, operated, or controlled by the program provider;]

[(2) providing complete access to individuals and program provider personnel;]

[(3) providing access to all records pertinent to the investigation of the allegation; and]

[(4) preserving and protecting any evidence related to the allegation in accordance with DFPS instructions.]

[(h) The program provider must:]

[(1) report the program provider's response to the finding of a DFPS investigation of abuse, neglect, or exploitation to DADS in accordance with DADS procedures within 14 calendar days of the program provider's receipt of the investigation findings;]

[(2) promptly, but not later than five calendar days from the program provider's receipt of the DFPS investigation finding, notify the individual and LAR of:]

[(A) the investigation finding;]

[(B) the corrective action taken by the program provider if DFPS confirms that abuse, neglect, or exploitation occurred;]

[(C) the process to appeal the investigation finding as described in Chapter 711, Subchapter M of this title (relating to Requesting an Appeal if You are the Reporter, Alleged Victim, Legal Guardian, or with Disability Rights Texas); and]

[(D) the process for requesting a copy of the investigative report from the program provider; and]

[(3) upon request of the individual or LAR, provide to the individual or LAR a copy of the DFPS investigative report after concealing any information that would reveal the identity of the reporter or of any individual who is not the individual.]

[(i) If the DFPS investigation confirms that abuse, neglect, or exploitation by program provider personnel occurred, the program provider must take appropriate action to prevent the recurrence of abuse, neglect or exploitation including, when warranted, disciplinary action against or termination of the employment of program provider personnel confirmed by the DFPS investigation to have committed abuse, neglect, or exploitation.]

(e) [(j)] In all respite facilities, 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.

(f) At least annually, the program provider must review:

(1) 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;

(2) complaints, as described in §49.309 of this title, and identify program process improvements to reduce the filing of complaints;

(3) the reasons for suspensions, terminations, and transfers and identify any related need for program process improvements; and

(4) critical incident data reported in accordance with subsection (n) of this section and identify program process improvements that help prevent the reoccurrence of critical incidents and improve the delivery of services.

[(k) At least quarterly, the program provider must review incidents of abuse, neglect, or exploitation, complaints, temporary suspensions, terminations, transfers, and critical incidents to assess trends and identify program operation modifications that will prevent the recurrence of such incidents and improve service delivery.]

(g) [(l)] A program provider must ensure that all personal information maintained by the program provider or its contractors concerning an individual, such as lists of names, addresses, and records created or obtained by the program provider or its contractor, is kept confidential, that the use or disclosure of such information and records is limited to purposes directly connected with the administration of the TxHmL Program or provision of CFC services, and is otherwise neither directly nor indirectly used or disclosed unless the written permission of the individual to whom the information applies or the individual's LAR is obtained before the use or disclosure.

(h) [(m)] The program provider must ensure that:

(1) 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; and

(2) charges for items or services are reasonable and comparable to the costs of similar items and services generally available in the community.

(i) [(n)] The program provider must not charge an individual or LAR for costs for items or services reimbursed through the TxHmL Program or through CFC.

(j) [(o)] At the written request of an individual or LAR, the program provider:

(1) must manage the individual's personal funds entrusted to the program provider;

(2) must not commingle the individual's personal funds with the program provider's funds; and

(3) must maintain a separate, detailed record of all deposits and expenditures for the individual.

(k) [(p)] When a behavioral support plan includes techniques that involve restriction of individual rights or intrusive techniques, the program provider must ensure that the implementation of such techniques includes:

(1) approval by the individual's service planning team;

(2) written consent of the individual or LAR;

(3) verbal and written notification to the individual or LAR of the right to discontinue participation in the behavioral support plan at any time;

(4) assessment of the individual's needs and current level/severity of the behavior targeted by the plan;

(5) use of techniques appropriate to the level/severity of the behavior targeted by the plan;

(6) a written behavioral [behavior] support plan developed by a service provider of behavioral support [psychologist or behavior analyst] with input from the individual, LAR, the individual's service planning team, and other professional personnel;

(7) collection and monitoring of behavioral data concerning the targeted behavior;

(8) allowance for the decrease in the use of intervention techniques based on behavioral data;

(9) allowance for revision of the behavioral support plan when the desired behavior is not displayed or techniques are not effective;

(10) consideration of the effects of the techniques in relation to the individual's physical and psychological well-being; and

(11) at least annual review by the individual's service planning team to determine the effectiveness of the program and the need to continue the techniques.

(l) [(q)] A [The] program provider must report the death of an individual:

(1) to HHSC and the LIDDA [and DADS] by the end of the next business day after the program provider becomes aware of [following] the death; and [of the individual or the program provider's knowledge of the death and,]

(2) if the program provider reasonably believes that the [individual's] LAR [or family] does not know of the individual's death, to the [individual's] LAR [or family] as soon as possible, but not later than 24 hours after the program provider becomes aware [learns ] of the [individual's] death.

(m) 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; or

(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.

(n) [(r)] A program provider must enter critical incident data in the HHSC [DADS] data system no later than the last [30] calendar [days after the last calendar] day of the month that follows the month being reported in accordance with the TxHmL Provider User Guide.

(o) [(s)] A [The] program provider must ensure that:

(1) the name and phone number of an alternate to the Chief Executive Officer (CEO) [CEO] of the program provider is entered in the HHSC [DADS] data system; and

(2) the alternate to the CEO:

(A) performs the duties of the CEO during the CEO's absence; and

(B) if the CEO is named as an alleged perpetrator of abuse, neglect, or exploitation of an individual, acts as the contact person in an HHSC [a DFPS] investigation [if the CEO is named as an alleged perpetrator of abuse, neglect, or exploitation of an individual] and complies with §9.585(d) - (f) of this subchapter (relating to Requirements Related to the Abuse, Neglect, and Exploitation of an Individual) [subsections (f) - (i) of this section].

§9.583.TxHmL Program Principles for LIDDAs.

(a) A LIDDA must offer TxHmL Program services to an applicant in accordance with §9.567 of this subchapter (relating to Process for Enrollment).

(b) A LIDDA must process enrollments in the TxHmL Program in accordance with §9.567 of this subchapter.

(c) A LIDDA must have a mechanism to ensure objectivity in the process to assist an individual or LAR in the selection of a program provider and a system for training all LIDDA staff who may assist an individual or LAR in such process.

(d) A LIDDA must ensure that, upon the enrollment of an individual and annually thereafter, the [an applicant an] individual or LAR is informed orally and in writing of the following [processes for filing complaints as follows]:

(1) the telephone number of the LIDDA to file a complaint;

(2) the toll-free telephone number of the HHSC Complaint and Incident Intake, 1-800-458-9858, [DADS] to file a complaint; and

(3) the toll-free telephone number of DFPS, 1-800-647-7418, [(1-800-647-7418)] to report an allegation of abuse, neglect, or exploitation.

(e) A LIDDA must maintain for each individual for an IPC year:

(1) a copy of the IPC;

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

(3) a copy of the ID/RC Assessment;

(4) documentation of the activities performed by the service coordinator in providing service coordination; and

(5) any other pertinent information related to the individual.

(f) For an individual receiving TxHmL Program services and CFC services within a LIDDA's local service area, the LIDDA must provide the individual's program provider a copy of the individual's current PDP, IPC, and ID/RC Assessment.

(g) A LIDDA must employ service coordinators who:

(1) meet the minimum qualifications and staff training requirements specified in Chapter 2, Subchapter L of this title (relating to Service Coordination for Individuals with an Intellectual Disability); and

(2) have received training about:

(A) the TxHmL Program and CFC, including:

(i) the requirements of this subchapter;

(ii) the CFC services as described in §9.554 of this subchapter (relating to Description of the TxHmL Program and CFC); and

(iii) the TxHmL Program services as described in §9.555 of this subchapter (relating to Description of TxHmL Program Services); and

(B) Chapter 41 of this title (relating to Consumer Directed Services Option).

(h) A LIDDA must ensure that a service coordinator:

(1) initiates, coordinates, and facilitates the person-directed planning process to meet the desires and needs as identified by an individual and LAR in the individual's PDP, including:

(A) scheduling service planning team meetings; and

(B) documenting on the PDP whether, for each TxHmL Program service or CFC service identified on the PDP, the service is critical to meeting the individual's health and safety as determined by the service planning team;

(2) coordinates the development and implementation of the individual's PDP;

(3) coordinates and develops an individual's IPC based on the individual's PDP;

(4) coordinates and monitors the delivery of TxHmL Program services and CFC services and non-TxHmL Program and non-CFC services;

(5) records each individual's progress; and

(6) develops a plan required by §9.570(c)(2) of this subchapter (relating to Termination and Suspension of TxHmL Program Services and CFC Services) that addresses assistance for the individual after termination of the individual's TxHmL Program services and CFC services.

(i) A LIDDA must ensure that an individual or LAR is informed of the name of the individual's service coordinator and how to contact the service coordinator.

(j) A service coordinator must:

(1) assist the individual or LAR in exercising the legal rights of the individual as a citizen and as a person with a disability;

(2) provide an individual, LAR, or family member with a written copy of the booklet, Your Rights in the Texas Home Living (TxHmL) Program, available on the HHSC website, and an oral explanation of the rights described in the booklet:

(A) upon the individual's enrollment in the TxHmL Program;

(B) upon revision of the booklet;

(C) upon request; and

(D) upon change in the individual's legal status (that is when the individual turns 18 years of age, is appointed a guardian, or loses a guardian);

(3) document the provision of the booklet and oral explanation required by paragraph (2) of this subsection and ensure that the documentation is signed by:

(A) the individual or LAR; and

(B) the service coordinator;

(4) [(2)] assist the individual's LAR or family members to encourage the individual to exercise the individual's rights;

(5) [(3)] ensure that the individual and LAR participate in developing a personalized PDP and IPC that meet the individual's identified needs and service outcomes and that the individual's PDP is updated when the individual's needs or outcomes change but not less than annually;

(6) [(4)] ensure that a restriction affecting the individual is approved by the individual's service planning team before the imposition of the restriction;

(7) [(5)] if notified by the program provider that an individual or LAR has refused a nursing assessment and that the program provider has determined that it cannot ensure the individual's health, safety, and welfare in the provision of a service as described in §9.578(s) of this subchapter (relating to Program Provider Certification Principles: Service Delivery):

(A) inform the individual or LAR of the consequences and risks of refusing the assessment, including that the refusal will result in the individual not receiving:

(i) nursing services; or

(ii) community support, day habilitation, employment assistance, supported employment, respite, or CFC PAS/HAB, if the individual needs one of those services and the program provider has determined that it cannot ensure the health, safety, and welfare of the individual in the provision of the service; and

(B) notify the program provider if the individual or LAR continues to refuse the assessment after the discussion with the service coordinator;

(8) [(6)] ensure that the individual or LAR is informed of decisions regarding denial or termination of services and the individual's or LAR's right to request a fair hearing as described in §9.571 of this subchapter (relating to Fair Hearings);

(9) [(7)] ensure that, if needed, the individual or LAR participates in developing a plan required by §9.570(c)(2) of this subchapter that addresses assistance for the individual after termination of the individual's TxHmL Program services; and

(10) [(8)] in accordance with HHSC [DADS] instructions, manage the process to transfer an individual's TxHmL Program services and CFC services from one program provider to another or transfer from one FMSA to another, including:

(A) informing the individual or LAR who requests a transfer to another program provider or FMSA that the service coordinator will manage the transfer process;

(B) informing the individual or LAR that the individual or LAR may choose:

(i) to receive TxHmL Program services and CFC services from any program provider that is in the geographic location preferred by the individual or LAR and whose enrollment has not reached its service capacity in the HHSC [DADS] data system; or

(ii) to transfer to any FMSA in the geographic location preferred by the individual or LAR; and

(C) if the individual or LAR has not selected another program provider or FMSA, providing the individual or LAR with a list of and contact information for TxHmL Program providers and FMSAs in the geographic location preferred by the individual or LAR.

(k) When a change to an individual's PDP or IPC is indicated, the service coordinator must discuss the need for the change with the individual or LAR, the individual's program provider, and other appropriate persons as necessary.

(l) At least 30 calendar days before the expiration of an individual's IPC, the service coordinator must:

(1) update the individual's PDP in conjunction with the individual's service planning team; and

(2) if the individual receives a TxHmL Program service or a CFC service from a program provider, submit to the program provider:

(A) the updated PDP; and

(B) if CFC PAS/HAB is included on the PDP, a copy of the completed HHSC [DADS] HCS/TxHmL CFC PAS/HAB Assessment form.

(m) A service coordinator must:

(1) review the status of an individual whose services have been suspended at least every 90 calendar days following the effective date of the suspension and document in the individual's record the reasons for continuing the suspension; and

(2) if the suspension continues 270 calendar days, submit written documentation of the 90, 180, and 270 calendar day reviews to HHSC [DADS] for review and approval to continue the suspension status.

(n) A service coordinator must:

(1) inform the individual or LAR orally and in writing, of the requirements described in subsection (j) of this section:

(A) upon receipt of HHSC [DADS] approval of the enrollment of the individual;

(B) if the requirements described in subsection (j) of this section are revised;

(C) at the request of the individual or LAR; and

(D) if the legal status of the individual changes; and

(2) document that the information described in paragraph (1) of this subsection was provided to the individual or LAR.

(o) A service coordinator must conduct:

(1) a pre-move site review for an applicant 21 years of age or older who is enrolling in the TxHmL Program from a nursing facility; and

(2) post-move monitoring visits for an individual 21 years of age or older who enrolled in the TxHmL Program from a nursing facility or has enrolled in the TxHmL Program as a diversion from admission to a nursing facility.

(p) A service coordinator must have a face-to-face contact with an individual to provide service coordination during a month in which it is anticipated that the individual will not receive a TxHmL Program service unless:

(1) the individual's TxHmL Program services have been suspended; or

(2) the service coordinator had a face-to-face contact with the individual that month to comply with §2.556(d) of this title (relating to LIDDA's [MRA's] Responsibilities).

(q) In addition to the requirements described in Chapter 2, Subchapter L of this title (relating to Service Coordination for Individuals with an Intellectual Disability), a LIDDA must[, in the provision of service coordination in the TxHmL Program,] ensure:

(1) compliance with:

(A) [the requirements in] this subchapter;[and]

(B) Chapter 41 of this title; and

(C) Chapter 4, Subchapter L, of this title (relating to Abuse, Neglect, and Exploitation in Local Authorities and Community Centers); and

(2) a rights protection officer, as required by §4.113 of this title (relating to Rights Protection Officer at a State MR Facility or MRA), who receives a copy of an HHSC initial intake report or a final investigative report from an FMSA, in accordance with §41.702 of this title (relating to Requirements Related to HHSC Investigations When an Alleged Perpetrator is a Service Provider) or §41.703 of this title (relating to Requirements Related to HHSC Investigations When an Alleged Perpetrator is a Staff Person or a Controlling Person of an FMSA), gives a copy of the report to the individual's service coordinator.

(r) A service coordinator must:

(1) at least annually, in accordance with Chapter 41, Subchapter D of this title (relating to Enrollment, Transfer, Suspension, and Termination):

(A) inform the individual or LAR of the individual's right to participate in the CDS option; and

(B) inform the individual or LAR that the individual or LAR may choose to have one or more services provided through the CDS option, as described in §41.108 of this title (relating to Services Available Through the CDS Option); and

(2) document compliance with paragraph (1) of this subsection in the individual's record.

(s) If an individual or LAR chooses to participate in the CDS option, the service coordinator must:

(1) provide names and contact information to the individual or LAR regarding all FMSAs providing services in the LIDDA's local service area;

(2) document the individual's or LAR's choice of FMSA on Form 1584;

(3) document, in the individual's PDP, a description of the services provided through the CDS option;

(4) document, in the individual's PDP, a description of the individual's service backup plan; and

(5) ensure the service planning team develops a transportation plan if an individual's PDP includes transportation as a community support activity to be delivered through the CDS option.

(t) For an individual participating in the CDS option, a service coordinator [the LIDDA] must recommend that HHSC terminate the individual's participation in the CDS option [to DADS that FMS and support consultation, if applicable, be terminated] if the service coordinator determines that:

(1) the individual's continued participation in the CDS option poses a significant risk to the individual's health, safety or welfare; or

(2) the individual or LAR has not complied with Chapter 41, Subchapter B of this title (relating to Responsibilities of Employers and Designated Representatives).

(u) To make [If a LIDDA makes] a recommendation as described in [under] subsection (t) of this section, a service coordinator [the local authority] must submit the following documentation to HHSC:

(1) the services the individual receives through the CDS option;

(2) the reason why the recommendation is made;

(3) a description of the attempts to resolve the issues before making the recommendation; and

(4) any other supporting documentation, as appropriate.

[(1) electronically transmit the individual's IPC to DADS; and]

[(2) in accordance with Chapter 41, Subchapter D of this title, submit documentation required by DADS in writing, to the Department of Aging and Disability Services, Access and Intake, Program Enrollment, P.O. Box 149030, Mail Code W-551, Austin, Texas 78714-9030.]

(v) At least annually, a service coordinator must:

(1) using an HHSC [a DADS] form, provide an oral and written explanation to an individual or LAR of:

(A) the eligibility requirements for TxHmL Program services as described in §9.556(a) of this subchapter (relating to Eligibility Criteria for TxHmL Program Services and CFC Services); and

(B) if the individual's PDP includes CFC services:

(i) the eligibility requirements for CFC services as described in §9.556(b) of this subchapter to individuals who do not receive MAO Medicaid; and

(ii) the eligibility requirements for CFC services as described in §9.556(c) of this subchapter to individuals who receive MAO Medicaid;

(2) using an HHSC [a DADS] form, provide an oral and written explanation to an individual or LAR of all TxHmL Program services and CFC services; and

(3) using an HHSC [a DADS] form, provide an oral and written explanation to an individual or LAR of:

(A) the reasons an individual's TxHmL Program services may be terminated as described in §9.570(a)(1) of this subchapter (relating to Termination and Suspension of TxHmL Program Services and CFC Services); and

(B) if the individual's PDP includes CFC services, the reasons CFC services may be terminated as described in §9.570(a)(2) of this subchapter.

§9.585.Certification Principles: Requirements Related to the Abuse, Neglect, and Exploitation of an Individual.

(a) A program provider must:

(1) ensure that an individual and LAR are, before or at the time the individual begins receiving a TxHmL Program service or a CFC service and at least annually thereafter:

(A) informed of how to report allegations of abuse, neglect, or exploitation to DFPS and are provided with the toll-free telephone number, 1-800-647-7418, in writing; 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

(C) provided with the instructions described in subparagraph (B) of this paragraph in writing; and

(3) conduct the activities described in paragraph (2)(A) - (C) of this subsection before a staff member, service provider, or volunteer assumes job duties and at least annually thereafter.

(b) 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) as necessary:

(A) obtain immediate medical or psychological services for the individual; and

(B) assist in obtaining ongoing medical or psychological services for the individual; and

(2) discuss with the individual or LAR alternative residential settings and additional services that may help ensure the individual's safety.

(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) as necessary:

(A) obtain immediate 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) preserve and protect any evidence related to the allegation; and

(4) notify, as soon as possible, but no later than 24 hours after the program provider reports or is notified of an 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

(C) records pertinent to the investigation of the allegation; 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 appropriate action within the program provider's authority to prevent the reoccurrence of abuse, neglect or exploitation, including, when warranted, 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, 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 40 TAC Chapter 711, Subchapter J (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 HHSC Notification to Waiver Survey and Certification (WSC) Regarding an Investigation of Abuse, Neglect or Exploitation form; 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.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900477

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-4639


CHAPTER 41. CONSUMER DIRECTED SERVICES OPTION

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

Therefore, the executive commissioner of HHSC proposes amendments to §§41.103, 41.108, 41.238, 41.301, 41.307, 41.309, 41.313, and 41.339 in Title 40, Part 1, Chapter 41, Consumer Directed Services Option. The executive commissioner of HHSC also proposes new §§41.233, 41.701, 41.702, and 41.703 in Title 40, Part 1, Chapter 41. Finally, the executive commissioner of HHSC proposes the repeal of §41.233 and §41.701 in Title 40, Part 1, Chapter 41.

BACKGROUND AND PURPOSE

The proposed rules address alleged abuse, neglect, and exploitation of an individual who is receiving a service through the consumer directed services (CDS) option. In the CDS option, an individual or the individual's legally authorized representative (LAR) is the employer of a service provider, and a financial management services agency (FMSA) contracts with HHSC to provide financial management services to the employer. An employer may also have a designated representative (DR) to assist with employer responsibilities.

One of the purposes of the proposed rules is to address changes to the investigatory process for abuse, neglect, and exploitation as a result of amendments to Texas Human Resources Code, Chapter 48, and Texas Family Code, Chapter 261, effective September 1, 2015. The amendments gave the Department of Family and Protective Services (DFPS) Adult Protective Services (APS) Provider Investigation (PI) Program authority to investigate an allegation of abuse, neglect, or exploitation of an individual receiving services through the CDS option when the alleged perpetrator is a service provider of an employer or a staff person or controlling person of an FMSA. Effective September 1, 2017, in accordance with Texas Government Code, §531.02011 and §531.02013, the functions performed by the DFPS APS PI Program were transferred to HHSC.

The proposed rules describe the requirements for an employer or DR and an FMSA if a report to DFPS alleges abuse, neglect, or exploitation by a service provider or a staff person or a controlling person of the FMSA. For an individual in the Home and Community-based Services (HCS) Program or the Texas Home Living (TxHmL) Program, the proposed rules also describe the requirements for a local intellectual and developmental disability authority (LIDDA) rights protection officer and service coordinator. For an individual in the Community Living Assistance and Support Services (CLASS) Program or Deaf Blind with Multiple Disabilities (DBMD) Program, the proposed rules describe the requirements for the program director and case manager.

In addition, the proposed rules move the requirements currently contained in Texas Administrative Code, Title 40 (40 TAC), §49.310, Abuse, Neglect, and Exploitation Allegations, that apply to FMSAs to Chapter 41, using terminology specific to FMSAs and the CDS option and adding specificity. The proposed rules also add new requirements for an FMSA. For example, the proposed rules require an FMSA to: (1) train staff persons related to abuse, neglect, and exploitation before assuming job duties and annually thereafter; (2) ensure that the persons who are trained are knowledgeable about signs and symptoms of abuse, neglect, and exploitation; and (3) during initial orientation to the CDS option and annually thereafter, educate an employer and DR about protecting the individual from abuse, neglect, and exploitation. Rules in 40 TAC Chapter 49, Contracting for Community Services, to exclude an FMSA from §49.310, are proposed elsewhere in this issue of the Texas Register.

The proposed rules help protect an individual who is receiving services in the CDS option from abuse, neglect, and exploitation and help secure the health, safety, and welfare of an individual who has been abused, neglected, or exploited. The proposed rules for an FMSA are also consistent with the requirements for handling abuse, neglect, and exploitation being proposed for other HHSC contractors for which the HHSC PI Program has jurisdiction to investigate an allegation of abuse, neglect, or exploitation.

The proposed rules also amend the list of programs under which services are available through the CDS option by correcting program names and deleting references to the Medically Dependent Children Program (MDCP), which ended as a fee-for service program with services available through the CDS option on February 1, 2017.

The proposed rules also correct agency names to reflect that DADS has been abolished and its functions transferred to HHSC. The proposed rules also correct website addresses.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §41.103, Definitions, adds definitions of "abuse," "alleged perpetrator," "controlling person," "exploitation," "neglect," "physical abuse," "seclusion," "sexual abuse," "sexual activity," "sexual exploitation," "staff person," "verbal or emotional abuse," and "volunteer." These terms are related to abuse, neglect, and exploitation and used in the proposed rules. The proposed amendment changes the definition of "actively involved" to emphasize that an individual or LAR is integral in deciding if a person is actively involved with the individual. The proposed amendment also adds definitions for "CAS Program," "CLASS Program," "CMPAS Program," "DBMD Program," "FC Program," "HCS Program," "PHC Program" and "TxHmL Program." These terms are used in the proposed rules to refer to the programs in which the CDS option is available. The proposed amendment changes the definition of "DADS" to "HHSC." The former DADS has been abolished and its functions transferred to HHSC. However, until all references to DADS in Chapter 41 have been deleted, the definition remains necessary. The proposed amendment adds definitions for the acronyms "DFPS" and "HHSC" because the acronyms are used in the proposed rules to refer to the two state agencies. The proposed amendment changes the definition of "employee" to clarify that a support advisor is an employee and, therefore, subject to the rules governing an employee. The proposed amendment places the definition of "entity" in its correct alphabetical order. The proposed amendment deletes the definition of "program or service" because it is unnecessary. The proposed amendment also changes the definition of "support advisor" to delete the part of the definition that states a support advisor provides support consultation to an individual receiving services through the CDS option. That part of the definition is unnecessary because the definition states that a support advisor provides support consultation to an employer. The proposed amendment makes minor editorial corrections to the definitions of "applicant," "contractor," and "vendor fiscal/employer agent." The proposed amendment also revises other definitions to remove unnecessary capitalizations and redundant phrasing, and to use acronyms.

The proposed amendment to §41.108, Services Available Through the CDS Option, identifies the programs through which the CDS option is available, using terms defined in §41.103. The proposed amendment deletes the reference to the Medically Dependent Children Program because the program transitioned to managed care on November 1, 2016, and ended as a fee-for-service program with services available through the CDS option on February 1, 2017.

Proposed new §41.233, Training and Management of Service Providers, sets forth the requirements for an employer or DR to provide and document initial, ongoing, and annual training to a service provider; manage a service provider; and evaluate a service provider. The proposed rule clarifies the following requirements currently in §41.233, which is proposed for repeal: (1) the requirement for an employer or DR to use HHSC Form 1732 and the applicable addendum to HHSC Form 1735; (2) the requirement for an employer or DR to provide and document initial and on-going training of a service provider; (3) the requirement for an employer or DR to manage a service provider; and (4) the requirement for an employer or DR to use HHSC Form 1732 to document an annual evaluation of the service provider's performance. The proposed rule also includes two new requirements for an employer or DR. The first requires an employer or DR to use HHSC Form 1732 and the applicable addendum to HHSC Form 1735 to provide annual training to a service provider on the topics described in the forms. This requirement will provide consistency in the training by ensuring that it covers the topics described in the forms. The second requires an employer or DR to ensure a service provider signs and dates the HHSC Form 1732 and to give the service provider a copy of the form.

The proposed repeal of §41.233, Training and Management of Service Providers, deletes the current requirements for an employer or DR to train, manage, and evaluate a service provider.

The proposed amendment to §41.238, Service Delivery Requirements, deletes references to MDCP because it has ended as a fee-for-service program with services available through the CDS option.

The proposed amendment to §41.301, Contracting as a Financial Management Services Agency, requires an FMSA to train a staff person, which means an employee, contractor, or volunteer of the FMSA, to ensure the staff person is knowledgeable of acts that constitute abuse, neglect, and exploitation; signs and symptoms of abuse, neglect, and exploitation; and methods to prevent abuse, neglect, and exploitation. The training must occur before a staff person assumes job duties and annually thereafter. The proposed amendment also requires an FMSA to instruct a staff person on how to report an allegation of abuse, neglect, and exploitation and provide the staff person with the instructions in writing. The purpose of these requirements is to help protect an individual from abuse, neglect, and exploitation through staff training and knowledge. The proposed amendment also makes non-substantive editorial changes, including in the section title.

The proposed amendment to §41.307, Initial Orientation of an Employer, requires, in subsection (a)(5), that an FMSA, during initial orientation to the CDS option, educate an employer and DR about protecting the individual from abuse, neglect, and exploitation. The proposed amendment also requires, in subsection (a)(4), the printed document that an FMSA gives to an employer and DR to describe how the employer or DR reports an allegation of abuse, neglect, or exploitation of an individual to DFPS according to §41.701. These changes help ensure the health and safety of an individual receiving services through the CDS option. The proposed amendment, in subsection (d), requires an FMSA and an employer to sign and date the HHSC Form 1735, Employer and Financial Management Services Agency Service Agreement, before initiating services through the CDS option. This requirement ensures the FMSA and employer have agreed to their respective responsibilities before services through the CDS option begin. The proposed amendment also corrects the titles of forms and a manual, and makes other non-substantive editorial changes.

The proposed amendment to §41.309, Financial Management Services, CFC Support Management, and Vendor Fiscal/Employer Agent Responsibilities, requires an FMSA to annually review with and give an employer and DR a printed document that explains how to report an allegation of abuse, neglect, or exploitation to DFPS. An FMSA must also annually educate the employer and DR about protecting the individual from abuse, neglect, and exploitation. These requirements help ensure the health and safety of individuals receiving services through the CDS option by periodically reviewing and providing education on these topics. The proposed amendment also makes non-substantive editorial changes.

The proposed amendment to §41.313, Individual Service Planning Process, changes the term "CDSA" to "FMSA." The meaning of "CDSA" was changed to "FMSA" in 2013 and the term is being changed throughout Chapter 41 as sections are amended. The proposed amendment also deletes the requirement for an FMSA to notify a case manager or service coordinator of an allegation of abuse, neglect, or exploitation. The proposed new rules address the requirements and procedures by which an individual's case manager or service coordinator receives notice of an allegation of abuse, neglect, or exploitation reported to DFPS and subject to an investigation by the HHSC PI Program.

The proposed amendment to §41.339, Records, requires, in subsection (c), an FMSA to retain in an employer's record any initial intake report or final investigative report that the FMSA receives from HHSC. The amendment also requires an FMSA to retain an HHSC Form 1719 that has been completed by the FMSA. The requirement for an FMSA to complete Form 1719 is in proposed new §41.702 when the alleged perpetrator is a service provider, and new §41.703 when the alleged perpetrator is a staff person or controlling person of an FMSA. This requirement is consistent with policy issued to FMSAs by DADS in December 2015. The proposed amendment requires, in subsection (a), an FMSA to maintain records to support claims submitted to and payments received from HHSC. The amendment deletes the reference to "financial" records because some records supporting claims and payments, such as records documenting services provided to an individual, are not financial in nature. The proposed amendment specifies that the records maintained by an FMSA related to insurance coverage pertain only to staff persons (employees, contractors, and volunteers of the FMSA) because other insurance records are not relevant to its work as an FMSA. The proposed amendment deletes the acronym "GAAP" because it is not used in the section.

Proposed new §41.701, Reporting Allegations of Abuse, Neglect, or Exploitation of an Individual, requires an employer, a DR, an FMSA, a staff person of an FMSA, or a controlling person of an FMSA to make a report to DFPS if the person knows or suspects that an individual receiving services through the CDS option is being or has been abused, neglected, or exploited. The proposed new section also requires an employer or DR to ensure that a service provider who knows of or suspects abuse, neglect, or exploitation reports that knowledge or suspicion to DFPS. In addition, the proposed new section requires an employer or DR to take actions to secure the safety of an individual who is the subject of an allegation and, as necessary, obtain immediate and ongoing medical or psychological services for the individual. The requirement in subsection (a) for reporting an allegation involving an individual in the HCS Program or TxHmL Program is consistent with the current program rules. The time frame and telephone number in subsection (a) for reporting an allegation involving an individual in the DBMD Program, CLASS Program, Primary Home Care (PHC) Program, Community Attendant Services (CAS) Program, or Family Care (FC) Program are consistent with the requirements for a home and community support services agency that contracts with HHSC to provide services in any of those programs.

The proposed repeal of §41.701, Reporting Allegations, which requires a person to report an allegation of abuse, neglect, and exploitation, is necessary to adopt new §41.701. The new section contains requirements for reporting an allegation that are specific to an individual's program.

Proposed new §41.702, Requirements Related to HHSC Investigations When an Alleged Perpetrator is a Service Provider, contains requirements of an employer, DR, FMSA, and case manager or service coordinator if a report made to DFPS alleges that an individual receiving services through the CDS option has been abused, neglected, or exploited by a service provider. A service provider means an employee, contractor, or vendor of the employer. The purpose of the proposed new §41.702 is to ensure appropriate action is taken to protect an individual in the CDS option from abuse, neglect, or exploitation by a service provider.

Proposed new §41.702(a)(1) requires an employer or DR to obtain immediate and ongoing medical or psychological services for an individual as necessary to ensure the health and safety of the individual. Subsection (a)(1) also requires an employer or DR to take actions to secure the safety of the individual, including if necessary, ensuring that the alleged perpetrator does not have contact with the individual until HHSC completes the investigation. Subsection (a)(1) and (2) requires an employer or DR and FMSA to preserve evidence related to the allegation and cooperate with the HHSC investigation. These requirements help ensure that HHSC can obtain information pertinent to the allegation and its investigation.

Proposed new §41.702(b) requires an FMSA, within one working day after receiving an initial intake report from HHSC, to send a copy of the report to the program provider that employs the individual's case manager, the rights protection officer of the LIDDA that employs the individual's service coordinator, or the individual's HHSC regional office, depending on the program in which the individual is enrolled.

Proposed new §41.702(c) references rules being proposed by HHSC in this issue of the Texas Register that ensure that an individual's case manager or service coordinator is given an initial intake report related to the individual.

Proposed new §41.702(d) requires a case manager or service coordinator, within four working days after receiving a copy of an initial intake report, to convene a service planning team (SPT) meeting. The purpose of the SPT meeting is to review the report and discuss the actions the employer has taken or will take to protect the individual during the HHSC investigation. Subsection (d) also requires a case manager or service coordinator to document any actions that have been or will be taken as a result of the allegation and, if appropriate, to recommend termination of the CDS option for the individual in accordance with §41.407.

Proposed new §41.702(e) requires an FMSA, within one working day after receiving the final investigative report from HHSC, to send a copy of the report to the program provider that employs the individual's case manager, the rights protection officer of the LIDDA that employs the individual's service coordinator, or the individual's HHSC regional office, depending on the program in which the individual is enrolled. Subsection (e) also requires an FMSA, within five working days after receiving the final investigative report, to use the report to complete the HHSC Form 1719, Notification of Investigatory Findings, and send the completed form to the alleged perpetrator. The purpose of Form 1719 is to notify an alleged perpetrator if the finding in a final investigative report from HHSC is confirmed, unconfirmed, inconclusive, or unfounded.

Proposed new §41.702(f) references rules being proposed by HHSC in this issue of the Texas Register that ensure that an individual's case manager or service coordinator is given a final investigative report related to the individual.

If a final investigative report confirms the allegation, contains an inconclusive finding, or includes concerns and recommendations, proposed new §41.702(g) requires a case manager or service coordinator to (1) convene a SPT meeting within four working days after receiving the report to discuss the content of the report, including any concerns and recommendations by HHSC; (2) document any actions the employer has taken or will take as a result of the findings in the report or the concerns and recommendations by HHSC; and (3) if appropriate, recommend termination of the CDS option for the individual in accordance with §41.407.

Proposed new §41.703, Requirements Related to HHSC Investigations When an Alleged Perpetrator is a Staff Person or a Controlling Person of an FMSA, contains requirements of an employer, DR, FMSA, and case manager or service coordinator if a report made to DFPS alleges that an individual receiving services through the CDS option has been abused, neglected, or exploited by a staff person. A staff person means an employee, contractor, or volunteer of an FMSA, or a controlling person of an FMSA. The purpose of the proposed new §41.703 is to ensure appropriate action within an FMSA's authority is taken to protect an individual in the CDS option from abuse, neglect, or exploitation by a staff person or controlling person of the FMSA.

Proposed new §41.703(a)(1) requires an FMSA to 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 receiving services from the FMSA until HHSC completes the investigation. Subsection (a)(2) requires an FMSA to preserve and protect any evidence related to the allegation.

Proposed new §41.703(b) requires an FMSA, within one working day after receiving the initial intake report from HHSC, to send a copy of the report to the program director, the rights protection officer, or the individual's HHSC regional office, depending on the program in which the individual is enrolled.

Proposed new §41.703(c) requires an FMSA and an employer or DR, during an HHSC investigation, to cooperate with the investigation and to provide HHSC access to sites, staff persons, controlling persons, and records. Subsection (c)(1) requires an FMSA to ensure that FMSA staff persons and controlling persons cooperate with the investigation and provide access to sites, persons, and records. Subsection (c)(2) requires an employer or DR to ensure that service providers cooperate with the investigation. These requirements help ensure that HHSC can obtain information pertinent to the allegation and its investigation.

Proposed new §41.703(d) references rules being proposed by HHSC in this issue of the Texas Register that ensure an individual's case manager or service coordinator is given an initial intake report related to the individual.

Proposed new §41.703(e) requires a case manager or service coordinator, within four working days after receiving an initial intake report, to convene an SPT meeting to review the report and discuss the actions the employer has taken or will take to protect the individual during the HHSC investigation. Subsection (e) also requires a case manager or service coordinator to document any actions that have been or will be taken as a result of the allegation and, if appropriate, recommend termination of the CDS option for the individual in accordance with §41.407.

Proposed new §41.703(f) requires an FMSA, within one working day after receiving a final investigative report from HHSC, to send a copy of the report to the program provider that employs the individual's case manager, the rights protection officer of the LIDDA that employs the individual's service coordinator, or the individual's HHSC regional office, depending on the program in which the individual is enrolled. Subsection (f) also requires the FMSA, within five working days after receiving the final investigative report, to use the report to complete the HHSC Form 1719, Notification of Investigatory Findings, and send the completed form to the alleged perpetrator to notify the alleged perpetrator of the finding in the HHSC final investigative report.

Proposed new §41.703(g) references rules being proposed by HHSC in this issue of the Texas Register that ensure an individual's case manager or service coordinator is given a final investigative report related to the individual.

If a final investigative report confirms the allegation, contains an inconclusive finding, or includes concerns and recommendations, proposed new §41.703(h) requires a case manager or service coordinator to (1) convene a SPT meeting within four working days after receiving the report to discuss the content of the report, including any concerns and recommendations by HHSC; and (2) document any actions the employer has taken or will take as a result of the findings in the report or the concerns and recommendations by HHSC.

Proposed new §41.703(i) prohibits an FMSA from retaliating against any person who provides good faith information relating to the possible abuse, neglect, or exploitation of an individual.

Proposed new §41.703(j) requires an FMSA, at least annually, to review all final investigative reports from HHSC for investigations alleging abuse, neglect, or exploitation of an individual by a staff person or controlling person, and based on the review, to identify program process improvements that help prevent the occurrence of abuse, neglect, and exploitation and improve services provided by the FMSA.

FISCAL NOTE

Ms. Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that for each year of the first five years that the sections will be in effect, there will be no fiscal implications to state and local governments as a result of enforcing and administering the sections as proposed.

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

(3) implementation of the proposed rules will not require an increase or decrease in future legislative appropriations;

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

(5) the proposed rules will create a new rule;

(6) the proposed rules will expand an existing rule;

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

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

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

Ms. Greta Rymal, Deputy Executive Commissioner for Financial Services, has also determined that there will be an adverse economic effect on FMSAs that are small businesses or micro-businesses. HHSC lacks sufficient data to estimate the number of FMSAs designated as a small business or micro-business that would be impacted by the proposed rules. FMSAs may incur a cost for revising their policies and procedures and written information related to abuse, neglect, and exploitation and providing training. HHSC lacks sufficient information on the numbers of staff persons who must receive new training, their payment rates, or the amount of time it may take them to complete any new training. Therefore, HHSC is unable to provide an estimate for these program provider costs. There is no anticipated cost for compliance with any of the other proposed requirements, which largely implement current policy and enhance compliance with current requirements. HHSC determined that exempting or changing the requirements for small businesses or micro-businesses that may incur a cost for a provider of any size would not be consistent with ensuring the health and safety of all individuals receiving services.

Ms. Rymal has determined that there will not be an adverse economic effect on rural communities because no rural community contracts as an FMSA.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There is an anticipated economic cost to persons who are required to comply with the sections as proposed because an FMSA may incur a cost for revising policies and procedures, revising written information, and providing training related to abuse, neglect, and exploitation.

There is no anticipated negative impact on local employment.

COSTS TO REGULATED PERSONS

Texas Government Code, §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas and to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT

Stephanie Muth, State Medicaid Director, has determined that for each year of the first five years the sections are in effect, the public will benefit from the adoption of the sections. The public benefit anticipated as a result of enforcing or administering the sections will be an improved system that identifies, addresses, and seeks to prevent abuse, neglect, and exploitation, and provides greater protections for individuals who are subjected to abuse, neglect, and exploitation.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 4900 North Lamar Boulevard, Austin, Texas 78751; or e-mailed to HHSRulesCoordinationOffice@hhsc.state.tx.us.

To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) e-mailed by midnight on the last day of the comment period. When e-mailing comments, please indicate "Comments on Proposed Rule 40R016" in the subject line.

SUBCHAPTER A. INTRODUCTION 40 TAC §41.103, §41.108

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendments implement Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §32.021.

§41.103.Definitions.

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

(1) Abuse--

(A) physical abuse;

(B) sexual abuse; or

(C) verbal or emotional abuse.

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

(3) [(2)] Actively involved--Involvement with an individual that the individual or LAR and other members of the individual's service planning team deems to be of a quality nature based on the following:

(A) observed interactions of the person with the individual;

(B) a history of advocating for the best interests of the individual;

(C) knowledge and sensitivity to the individual's preferences, values, and beliefs;

(D) ability to communicate with the individual; and

(E) availability to the individual for assistance or support when needed.

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

(5) [(3)] Allowable cost--A billable service or item that is within the rate and spending limits of the rate established by HHSC[the Health and Human Services Commission] and that meets the requirements of an individual's program.

(6) [(4)] Applicant--Depending on the context, an applicant is:

(A) a person applying for employment with an employer;

(B) a person or legal entity applying for a contract with an employer to deliver services to an individual; or

(C) a person enrolling in a program [or service] in which the CDS option is available to the individual as described in §41.108 of this subchapter (relating to Services Available Through the CDS Option).

(7) [(5)] Budget--A written projection of expenditures for each service delivered through the CDS option.

(8) [(6)] Budgeted unit rate--The unit rate calculated for employee wages and benefits [compensation (wages and benefits)] in the budgeting process for services delivered through the CDS option. The rate is calculated after employer support services have been budgeted.

(9) CAS Program--Community Attendant Services Program. A Medicaid state plan program authorized under Title XIX of the Social Security Act and described in Chapter 47 of this title (relating to Primary Home Care, Community Attendant Services, and Family Care Programs).

(10) [(7)] Case manager--A person who provides case management services to an individual. The case manager assists an individual who receives services in gaining access to needed services, regardless of the funding source for the services, and assists with other duties in accordance with the rules of the individual's program [or service].

(11) [(8)] CDS option--Consumer directed services [Directed Services] option. A service delivery option in which an individual or LAR employs and retains service providers and directs the delivery of program services.

(12) [(9)] CDSA--An FMSA.

(13) [(10)] CFC--Community First Choice. The CFC option [Option] described in 1 Texas Administrative Code (TAC) Chapter 354, Subchapter A, Division 27 (relating to Community First Choice).

(14) [(11)] CFC PAS/HAB--CFC personal assistance services/habilitation. A Medicaid state plan service provided through CFC.

(15) [(12)] CFC support management--Training on how to select, manage, and dismiss an unlicensed service provider of CFC PAS/HAB.

(16) CLASS Program--Community Living Assistance and Support Services Program. A Medicaid waiver program approved by CMS under Title XIX, §1915(c) of the Social Security Act and described in Chapter 45 of this title (relating to Community Living Assistance and Support Services and Community First Choice (CFC) Services).

(17) CMPAS Program--Consumer Managed Personal Attendant Services Program. A program authorized under Title XX, Subtitle A of the Social Security Act and described in Chapter 44 of this title (relating to Consumer Managed Personal Attendant Services (CMPAS) Program).

(18) [(13)] Contractor--A person, who performs one or more program services, offers service to the general public, performs services for payment, and with whom an [the CDS] employer has a written service agreement. A contractor directs and controls when and how the work is performed as well as the business aspect of the job including expenses and the business relationship. A contractor may be a sole proprietor.

(19) Controlling person--A person who:

(A) has an ownership interest in an FMSA;

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

(C) is a partner in a partnership that is an FMSA;

(D) is a member or manager in a limited liability company that is an FMSA;

(E) is a trustee or trust manager of a trust that is an FMSA; or

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

(20) [(14)] DADS--HHSC [The Department of Aging and Disability Services].

(21) DBMD Program--Deaf Blind with Multiple Disabilities Program. A Medicaid waiver program approved by CMS under Title XIX, §1915(c) of the Social Security Act and described in Chapter 42 of this title (relating to Deaf Blind with Multiple Disabilities (DBMD) Program and Community First Choice (CFC) Services).

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

(23) [(15)] DR--Designated representative. A willing adult appointed by the employer to assist with or perform the employer's required responsibilities to the extent approved by the employer.

(24) [(16)] Employee--A person employed by an employer through a service agreement to deliver program services and who is paid an hourly wage for those services, including a support advisor.

(25) [(17)] Employer--An individual or LAR who chooses to participate in the CDS option, and, therefore, is responsible for hiring and retaining service providers to deliver program services.

[(18) Entity--An organization that has a legal identity such as a corporation, limited partnership, limited liability company, professional association, or cooperative.]

(26) [(19)] Employer support services--Services and items the employer needs to perform employer and employment responsibilities, as described in §41.507(a)(1) of this chapter (relating to Employer Support Services Budgeting).

(27) Entity--An organization that has a legal identity such as a corporation, limited partnership, limited liability company, professional association, or cooperative.

(28) [(20)] EVV system--Electronic visit verification system. As defined in §68.102 of this title (relating to Definitions), an electronic visit verification system that:

(A) allows a service provider to electronically report:

(i) the service recipient's identity;

(ii) the service provider's identity;

(iii) the date and time the service provider begins and ends the delivery of services;

(iv) the location of service delivery; and

(v) tasks performed by the service provider; and

(B) meets other guidelines described on the HHSC [DADS] website [at [www.dads.state.tx.us].

(29) 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.

(30) FC Program--Family Care Program. A program authorized under Title XX, Subtitle A of the Social Security Act and described in Chapter 47 of this title.

(31) [(21)] FMS--Financial management services. Services delivered by an FMSA to an employer or DR as described in §41.309(a) of this chapter (relating to Financial Management Services, CFC Support Management, and Vendor Fiscal/Employer Agent Responsibilities).

(32) [(22)] FMSA--A financial management services agency. A person, as defined in §49.102 of this title (relating to Definitions), that contracts with HHSC [DADS] to provide FMS.

(33) HCS Program--Home and Community-based Services Program. A Medicaid waiver program approved by CMS under Title XIX, §1915(c) of the Social Security Act and described in Chapter 9, Subchapter D of this title (relating to Home and Community-based Services (HCS) Program and Community First Choice (CFC)).

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

(35) [(23)] Individual--A person enrolled in a [DADS] program [or service] in which the CDS option is available, as described in §41.108 of this subchapter.

(36) [(24)] LAR--Legally authorized representative. A person authorized or required by law to act on behalf of an individual with regard to a matter described in this chapter, including a parent of a minor, guardian of a minor, managing conservator of a minor, or the guardian of an adult.

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

(38) [(26)] Minor--A person who is 17 years of age or younger.

(39) 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.

(40) [(27)] Non-program resource--A resource, other than an individual's HHSC [DADS] program [or service].

(41) [(28)] Parent--A natural, legal, foster, or adoptive parent of a minor.

(42) PHC Program--Primary Home Care Program. A Medicaid state plan program authorized under Title XIX of the Social Security Act and described in Chapter 47 of this title.

(43) 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 not in compliance with federal and state laws, rules, and regulations; or

(D) seclusion.

[(29) Program or service--A program or service administered by DADS that is described in §41.108 of this subchapter.]

(44) [(30)] Relative--A person related to an employer within the fourth degree of consanguinity or within the second degree of affinity.

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

(46) [(31)] Service agreement--A written agreement or acknowledgment between two parties that defines the relationship and lists respective roles and responsibilities.

(47) [(32)] Service backup plan--A documented plan to ensure that critical services delivered through the CDS option are provided to an individual when normal service delivery is interrupted or there is an emergency.

(48) [(33)] Service coordinator--An employee of a LIDDA who is responsible for assisting an applicant, individual, or LAR to access needed medical, social, educational, and other appropriate services, including an HHSC [a DADS] program or service. A service coordinator provides case management services to an individual.

(49) [(34)] Service plan--A document developed in accordance with rules governing an individual's program [or service] that identifies the services to be provided to the individual, the number of units of each service to be provided, and the projected cost of each service.

(50) [(35)] Service planning team--A group of people identified in accordance with the requirements of an individual's program [or service]. Some HHSC [DADS] programs [and services] refer to the service planning team as an interdisciplinary team.

(51) [(36)] Service provider--An employee, contractor, or vendor.

(52) 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 person, or controlling person, unless a consensual sexual relationship with an adult individual existed before the service provider, staff person, or controlling person became a service provider, staff person, or controlling person.

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

(54) 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.

(55) Staff person--An employee, contractor, or volunteer of an FMSA.

(56) [(37)] Support advisor--An employee who provides support consultation to an employer or DR [, a DR, or an individual receiving services through the CDS option].

(57) [(38)] Support consultation--An optional service that is provided by a support advisor and provides a level of assistance and training beyond that provided by the FMSA through FMS or CFC support management. Support consultation helps an employer to meet the required employer responsibilities of the CDS option and to successfully manage the delivery of program services.

(58) TxHmL Program--Texas Home Living Program. A Medicaid waiver program approved by CMS under Title XIX, §1915(c) of the Social Security Act and described in Chapter 9, Subchapter N of this title (relating to Texas Home Living (TxHmL) Program and Community First Choice (CFC)).

(59) [(39)] Vendor--A person or entity selected by an employer or DR to deliver goods, items, or services other than a direct service to an individual. Examples of vendors include a building contractor, an electrician, a durable medical equipment provider, a pharmacy, and a medical supply company.

(60) [(40)] Vendor fiscal/employer agent--The entity responsible for conducting payroll activities, including withholding, filing, and depositing taxes on behalf of an employer in the CDS option, in accordance with Section 3504 of the Internal Revenue Code [Service (IRS) code] and with Revenue [IRS] Procedure 2013-39.

(61) 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.

(62) Volunteer--A person who works for an FMSA without compensation, other than reimbursement for actual expenses.

(63) [(41)] Working day--Any day except a Saturday, a Sunday, or a national or state holiday listed in Texas Government Code §662.003(a) or (b).

§41.108.Services Available Through the CDS Option.

(a) The CDS option is available in the following programs [and services]:

(1) the CLASS Program, if the individual does not receive in the CLASS Program [Medicaid waiver programs as follows]:

[(A) the Community Living Assistance and Support Services (CLASS) Program, if the individual does not receive in the CLASS Program:]

(A) [(i)]support family [support] services; or

(B) [(ii)] continued family services;

(2) [(B)] the DBMD [Deaf Blind with Multiple Disabilities (DBMD)] Program, if the individual does not receive in the DBMD Program:

(A) [(i)] licensed assisted living; or

(B) [(ii)] licensed home health assisted living;

(3) [(C)] the HCS [Home and Community-Based Services (HCS)] Program, if the individual does not receive in the HCS Program:

(A) [(i)] residential support;

(B) [(ii)] supervised living; or

(C) [(iii)] host home/companion care;

(4) the TxHmL Program;

(5) the PHC Program;

(6) the CAS Program;

(7) the FC Program; and

(8) the CMPAS Program.

[(D) the Medically Dependent Children Program (MDCP); and]

[(E) the Texas Home Living (TxHmL) Program;]

[(2) primary home care/community attendant services (Medicaid state plan services); and]

[(3) services under Title XX, Subtitle A of the Social Security Act as follows:]

[(A) family care; and]

[(B) consumer managed personal attendant services.]

(b) Except for an individual who receives a service described in subsection (a)(1)(A) or (B), (a)(2)(A) or (B), or (a)(3)(A), (B), or (C) [(a)(1)(A)(i) or (ii), (B)(i) or (ii), or (C)(i), (ii), or (iii)] of this section, an individual enrolled in a [waiver] program described in subsection (a)(1) - (4) [(a)(1)(A) - (E)] of this section may choose to receive the following services through the CDS option:

(1) the CLASS Program:

(A) habilitation;

(B) in-home respite;

(C) nursing;

(D) occupational therapy;

(E) out-of-home respite;

(F) physical therapy;

(G) speech therapy;

(H) employment assistance;

(I) supported employment;

(J) cognitive rehabilitation therapy;

(K) CFC PAS/HAB; and

(L) any other service provided through the CDS option as listed on HHSC's [DADS] website;

(2) the DBMD Program:

(A) employment assistance;

(B) intervener;

(C) residential habilitation;

(D) respite;

(E) supported employment;

(F) CFC PAS/HAB; and

(G) any other service provided through the CDS option as listed on the HHSC [DADS] website;

(3) the HCS Program:

(A) cognitive rehabilitation therapy;

(B) employment assistance;

(C) nursing;

(D) supported employment;

(E) supported home living;

(F) respite;

(G) CFC PAS/HAB; and

(H) any other service provided through the CDS option as listed on HHSC's [DADS] website; and

[(4) the MDCP:]

[(A) employment assistance;]

[(B) flexible family support services;]

[(C) respite;]

[(D) supported employment; and]

[(E) any other service provided through the CDS option as listed on DADS website; and]

(4) [(5)] the TxHmL Program:

(A) adaptive aids;

(B) audiology services;

(C) behavioral support;

(D) community support;

(E) day habilitation;

(F) dental treatment;

(G) dietary services;

(H) employment assistance;

(I) nursing;

(J) minor home modifications;

(K) occupational therapy;

(L) physical therapy;

(M) respite;

(N) speech/language pathology services;

(O) supported employment;

(P) CFC PAS/HAB; and

(Q) any other service provided through the CDS option as listed on HHSC's [DADS] website.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900487

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-3395


SUBCHAPTER B. RESPONSIBILITIES OF EMPLOYERS AND DESIGNATED REPRESENTATIVES

40 TAC §41.233

STATUTORY AUTHORITY

The repeal is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The repeal implements Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §32.021.

§41.233.Training and Management of Service Providers.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900488

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-3395


40 TAC §41.233, §41.238

STATUTORY AUTHORITY

The new section and amendment are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The new section and amendment implement Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §32.021.

§41.233.Training and Management of Service Providers.

(a) An employer or DR must:

(1) provide initial, ongoing, and annual training to a service provider on the topics described in HHSC Form 1732, Management and Training of Service Provider, and the applicable Service Provision Requirements Addendum to HHSC Form 1735, Employer and Financial Management Services Agency (FMSA) Agreement; and

(2) manage a service provider in accordance with HHSC Form 1732 and the applicable addendum to HHSC Form 1735.

(b) An employer or DR must:

(1) complete HHSC Form 1732 to document:

(A) the training required by subsection (a)(1) of this section;

(B) the management of a service provider required by subsection (a)(2) of this section; and

(C) an evaluation of the service provider's performance at least annually after the date of hire;

(2) sign and date the completed form;

(3) ensure the service provider signs and dates the completed form;

(4) give the service provider a copy of the signed form; and

(5) send a copy of the signed form to the FMSA within 30 calendar days after the date the form is signed by the employer or DR and the service provider.

§41.238.Service Delivery Requirements.

(a) The employer or DR must ensure that services provided through the CDS option:

(1) are included on the individual's HHSC [DADS] authorized service plan and, if required by the program rules, included on any other plan such as the habilitation plan or implementation plan;

(2) are budgeted in the employer budget;

(3) are provided only to the individual;

(4) are not provided if the individual receiving services becomes ineligible for program services; and

(5) meet requirements for payment in accordance with program rules and §41.241 of this subchapter (relating to Payment of Services).

(b) If nursing services [or MDCP respite or flexible family support] are included on the service plan, the employer or DR must:

(1) if the employer or DR hires an RN to deliver the service, obtain a completed HHSC [DADS] Form 1747, Acknowledgment of Nursing Requirements, from the RN before the RN provides nursing services [or MDCP respite or flexible family support] to the individual;

(2) if the employer or DR hires a licensed vocational nurse (LVN) to deliver the service, obtain a completed HHSC [DADS] Form 1747-LVN, Licensed Vocational Nurse Supervision Certification, from the LVN before the LVN provides nursing services [or MDCP respite or flexible family support] to the individual;

(3) maintain completed HHSC [DADS] Forms 1747 and 1747-LVN in the individual's home and send a copy of the completed forms to the FMSA before delivery of nursing services [or MDCP respite or flexible family support]; and

(4) if program rules require that the individual's program provider's nurse complete the initial and annual nursing assessment:

(A) provide a copy of the program provider's nursing assessment, including the number of nursing hours authorized, to the CDS nurse; and

(B) if the CDS nurse disagrees with the number of authorized nursing hours, ensure that the CDS nurse provides justification to the service planning team for consideration and a possible service plan revision.

(c) If HHSC [DADS] determines that an employer or DR is not in compliance with this section, HHSC [DADS] may require the employer to develop and implement a corrective action plan in accordance with §41.221 of this subchapter (relating to Corrective Action Plans).

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900489

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-3395


SUBCHAPTER C. ENROLLMENT AND RESPONSIBILITIES OF FINANCIAL MANAGEMENT SERVICES AGENCIES (FMSAS)

40 TAC §§41.301, 41.307, 41.309, 41.313, 41.339

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendments implement Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §32.021.

§41.301.Contracting as an FMSA [a Financial Management Services Agency].

(a) An FMSA must:

(1) comply with Chapter 49 of this title (relating to Contracting for Community Services);

(2) have at least one eligible employee or contractor to provide support consultation services as defined in Subchapter F of this chapter (relating to Support Consultation Services and Support Advisory Responsibilities);

(3) operate as a Vendor Fiscal/Employer Agent (VF/EA) in accordance with §3504 of the Internal Revenue [Service (IRS)] Code; and

(4) participate in all mandatory training provided or authorized by HHSC [DADS].

(b) An FMSA must not:

(1) use a third party to file and report payroll taxes to the Internal Revenue Service [IRS] on behalf of an [a CDS] employer;

(2) provide FMS to an individual who is receiving case management services or service coordination from the FMSA or a controlling person, as defined in §49.102 of this title (relating to Definitions) of the FMSA, except in the Consumer Managed Personal Attendant Services program.

(c) An individual receiving FMS, the individual's LAR, or DR, must not be:

(1) the individual's FMSA; or

(2) a controlling person, as de ined in §49.102 of this title, of the individual's FMSA.

(d) An FMSA must:

(1) conduct training to ensure a staff person is:

(A) 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 an allegation of abuse, neglect, or exploitation of an individual as described in §41.701(c) of this chapter (relating to Reporting Allegations of Abuse, Neglect, or Exploitation of an Individual); and

(C) provided with the instructions described in subparagraph (B) of this paragraph in writing; and

(2) provide the training described in paragraph (1) of this subsection before a staff person assumes job duties and annually thereafter.

§41.307.Initial Orientation of an Employer.

(a) An FMSA must conduct an initial face-to-face orientation with the employer, and the DR if applicable, in the residence of the individual, in which the FMSA [that]:

(1) explains to the employer and DR the roles, rules, and responsibilities that apply to an [a CDS] employer, service provider, FMSA, and state agencies, including:

(A) the employer budget based on the authorized service plan;

(B) the hiring process, including documents and forms to be completed for new employees; and

(C) managing paper and electronic timesheets, due dates, payday schedules, and disbursing employee payroll checks;

(2) reviews with and gives [leaves with] the employer[,] and DR [if applicable,] a printed document that clearly states the FMSA's:

(A) normal hours of operation;

(B) key persons to contact with issues or questions and how to contact these persons; and

(C) the complaint process, including how to file a complaint with [to] the FMSA or about the FMSA;

(3) reviews with the employer and DR, HHSC Form 1735, Employer and Financial Management Services Agency Service [FMSA] Agreement, and the applicable Service Provision Requirements Addendum to the form [required attachments ], emphasizing rule and policy requirements of the individual's program, including:

(A) service definitions;

(B) service provider qualifications;

(C) required documentation to be kept in the individual's home;

(D) training requirements for service providers;

(E) program staff who will be reviewing the employer's records; and

(F) if applicable, nursing requirements as described on HHSC [DADS] Form 1747; [and]

(4) revi ws with and gives to the employer and DR a printed document that describes [leaves with the employer, and DR if applicable, printed information on] how to report an allegation [allegations] of abuse, neglect, or [and] exploitation of the individual to DFPS as described in §41.701(a)(1)(A) or (B) of this chapter (relating to Reporting Allegations of Abuse, Neglect, or Exploitation of an Individual); and [.]

(5) educates the employer and DR about protecting the individual from abuse, neglect, and exploitation.

(b) The FMSA must provide to the employer or DR a printed or an electronic copy of the HHSC Consumer Directed Services (CDS) Option [DADS CDS] Employer Manual.

(c) The FMSA and employer must complete HHSC Form 1736, Documentation of Employer Orientation, upon conclusion of the orientation.

(d) The FMSA must sign and date [receive] a completed HHSC Form 1735 [with required attachments] signed and dated by the employer before initiation of the CDS option.

§41.309.Financial Management Services, CFC Support Management, and Vendor Fiscal/Employer Agent Responsibilities.

(a) An FMSA must provide FMS to an employer or DR. FMS consists of the following activities:

(1) providing an initial orientation as described in §41.307 of this chapter (relating to Initial Orientation of an Employer);

(2) after the initial orientation, doing the following annually:

(A) reviewing with and giving to the employer and DR a printed document that contains an explanation of how to report allegations of abuse, neglect, and exploitation of the individual to DFPS as described in §41.701(a)(1)(A) or (B) of this chapter (relating to Reporting Allegations of Abuse, Neglect, or Exploitation of an Individual); and

(B) educating the employer and DR about protecting the individual from abuse, neglect, and exploitation;

(3) [(2)] providing ongoing training, assistance, and support for employer-related responsibilities;

(4) [(3)] assisting an employer to verify qualifications of service providers before services are delivered, including citizenship status;

(5) [(4)] monitoring continued eligibility of service providers;

(6) [(5)] approving and monitoring budgets for services delivered through the CDS option;

(7) [(6)] collecting and processing service provider timesheets or invoices approved by the employer;

(8) [(7)] processing payroll, including calculating employee withholdings and employer contributions and depositing these funds with applicable federal, state, and local agencies;

(9) [(8)] complying with applicable government regulations concerning employee withholdings, garnishments, mandated withholdings, and benefits;

(10) [(9)] preparing and filing required tax forms and reports;

(11) [(10)] paying allowable expenses incurred by the employer;

(12) [(11)] providing status reports concerning the individual's budget, expenditures, and compliance with CDS option requirements; and

(13) [(12)] responding to the employer or DR as soon as possible, but at least within two working days after receipt of information requiring a response from the FMSA, unless indicated otherwise in this chapter.

(b) An FMSA must provide, in accordance with HHSC's [DADS] instructions, CFC support management to an individual or LAR if:

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

(2) the individual or LAR requests to receive CFC support management.

(c) An FMSA must complete HHSC [DADS] Form 1739 Service Provider Agreement with an employer's service provider before issuing the initial payment for services to the service provider.

(d) An FMSA must accept a designated fee established by HHSC [the Health and Human Services Commission] as payment in full for FMS provided.

(e) An FMSA must maintain originals or copies of records to document compliance with this section.

(f) An FMSA must not provide FMS and case management services to the same individual as prohibited in §41.301 of this chapter (relating to Contracting as an FMSA [a Financial Management Services Agency]).

§41.313.Individual Service Planning Process.

(a) An FMSA [A CDSA] may participate as a member of an individual's service planning team when requested by the individual or LAR and agreed to by the FMSA [CDSA].

(b) Within three working days after receiving a request from an employer, DR, case manager, service coordinator, or HHSC [DADS], the FMSA [CDSA] must provide information related to an individual's participation in the CDS option.

(c) The FMSA [CDSA] must document and notify a case manager or service coordinator of issues or concerns related to an individual's participation in the CDS option, including:

(1) allegations of [abuse, neglect, exploitation, or] fraud;

(2) concerns about the individual's health, safety, or welfare;

(3) non-delivery or extended breaks in services;

(4) noncompliance with employer responsibilities;

(5) noncompliance with service back-up plans; or

(6) over or under utilization of services or funds allocated in the individual's service plan for delivery of services to the individual through the CDS option and in accordance with the requirements of the individual's program.

§41.339.Records.

(a) An FMSA must maintain [financial] records to support claims submitted to HHSC [DADS] and payments received from HHSC [DADS].

(b) An FMSA must, in accordance with generally accepted accounting principles [(GAAP)] and HHSC [DADS] requirements, document and maintain financial records, including:

(1) deposit slips, bank statements, cancelled checks, and receipts;

(2) purchase orders;

(3) invoices;

(4) journals and ledgers;

(5) time sheets, payroll, and tax records;

(6) records, forms, and reports required by the Internal Revenue Service, the Texas Workforce Commission, and other applicable government agencies;

(7) insurance coverage related to staff persons, including claims[,] and payments; [(for example, medical, liability, fire and casualty, and workers' compensation) as a DADS contracted provider (the FMSA) and as applicable for individuals.]

(8) equipment inventory records;

(9) the FMSA's internal accounting procedures; and

(10) chart of accounts.

(c) An FMSA must retain in an employer's record an initial intake report and a final investigative report received from HHSC and a completed HHSC Form 1719.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900490

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-3395


SUBCHAPTER G. REPORTING ALLEGATIONS

40 TAC §41.701

STATUTORY AUTHORITY

The repeal is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The repeal implements Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §32.021.

§41.701Reporting Allegations.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900491

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-3395


SUBCHAPTER G. ALLEGATIONS OF ABUSE, NEGLECT, AND EXPLOITATION

40 TAC §§41.701 - 41.703

STATUTORY AUTHORITY

The new sections are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The new sections implement Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §32.021.

§41.701.Reporting Allegations of Abuse, Neglect, or Exploitation of an Individual.

(a) If an employer or DR knows or suspects that an individual is being or has been abused, neglected, or exploited, the employer or DR must:

(1) report the knowledge or suspicion to DFPS:

(A) for an individual who is in the HCS Program or TxHmL Program, immediately, but not later than one hour, after having knowledge or suspicion by:

(i) calling the toll-free telephone number, 1-800-647-7418; or

(ii) using the DFPS website; or

(B) for an individual who is in the DBMD Program, CLASS Program, PHC Program, CAS Program, or FC Program, immediately, but not later than 24 hours, after having knowledge or suspicion by:

(i) calling the DFPS Abuse Hotline toll-free telephone number, 1-800-252-5400; or

(ii) using the DFPS Abuse Hotline website;

(2) take actions to secure the safety of the individual; and

(3) obtain immediate and ongoing medical or psychological services for the individual as necessary.

(b) An employer or DR must ensure a service provider who knows or suspects that an individual is being or has been abused, neglected, or exploited, complies with the reporting requirement in subsection (a)(1)(A) or (B) of this section.

(c) If an FMSA, a staff person, or a controlling person knows or suspects that an individual is being or has been abused, neglected, or exploited, the FMSA must report or ensure that the person with knowledge or suspicion reports the allegation of abuse, neglect, or exploitation to DFPS:

(1) for an individual who is in the HCS Program or TxHmL Program, immediately, but not later than one hour, after having knowledge or suspicion by:

(A) calling the DFPS Abuse Hotline toll-free telephone number, 1-800-647-7418; or

(B) using the DFPS Abuse Hotline website; or

(2) for an individual who is in the DBMD Program, CLASS Program, PHC Program, CAS Program, or FC Program, immediately, but not later than 24 hours, after having knowledge or suspicion by:

(A) calling the DFPS Abuse Hotline toll-free telephone number, 1-800-252-5400; or

(B) using the DFPS Abuse Hotline website.

§41.702.Requirements Related to HHSC Investigations When an Alleged Perpetrator is a Service Provider.

(a) If a report required by §41.701(a) or (b) of this subchapter (relating to Reporting Allegations of Abuse, Neglect, or Exploitation of an Individual) alleges abuse, neglect, or exploitation by a service provider; or if an employer, DR, or FMSA is notified by HHSC of an allegation of abuse, neglect, or exploitation by a service provider:

(1) the employer or DR must:

(A) obtain immediate and ongoing medical or psychological services for the individual as necessary;

(B) take actions to secure the safety of the individual, including if necessary, ensuring that the alleged perpetrator does not have contact with the individual until HHSC completes the investigation;

(C) preserve and protect any evidence related to the allegation, including timesheets and other employee-related documentation;

(D) cooperate with the HHSC investigation as requested by HHSC, including providing documentation and participating in an interview; and

(E) ensure that service providers comply with subparagraphs (C) and (D) of this paragraph; and

(2) the FMSA must:

(A) preserve and protect any evidence related to the allegation, including timesheets and other employee-related documentation;

(B) cooperate with the HHSC investigation as requested by HHSC, including providing documentation and participating in an interview; and

(C) ensure that staff persons and controlling persons comply with subparagraphs (A) and (B) of this paragraph.

(b) Within one working day after receiving the initial intake report from HHSC for an allegation of abuse, neglect, or exploitation described in subsection (a) of this section, the FMSA must send a copy of the report by fax or secure email to:

(1) the program director of the entity employing the individual's case manager for an individual enrolled in the CLASS Program or the DBMD Program;

(2) the rights protection officer, as required by §4.113 of this title (relating to Rights Protection Officer at a State MR Facility or MRA), of the LIDDA employing the individual's service coordinator for an individual enrolled in the HCS Program or the TxHmL Program; or

(3) the individual's HHSC regional office for an individual enrolled in the PHC Program, the CAS Program, or the FC Program.

(c) For an individual enrolled in:

(1) the DBMD Program or CLASS Program, a program director is required to give the initial intake report received from the individual's FMSA to the individual's case manager as described in §42.401 of this title (relating to Protection of Individual) or §45.702 of this title (relating to Protection of Individual, Initial and Annual Explanations, and Offering Access to Other Services); or

(2) the HCS Program or TxHmL Program, a rights protection officer is required to give the initial intake report received from the individual's FMSA to the individual's service coordinator as described in §9.190 of this title (relating to LIDDA Requirements for Providing Service Coordination in the HCS Program) or §9.583 of this title (relating to TxHmL Program Principles for LIDDAs).

(d) A case manager or service coordinator who receives an initial intake report must:

(1) within four working days after receiving the report, convene a service planning team meeting in person or by phone to review the report and discuss the actions the employer has taken or will take to protect the individual during the HHSC investigation, which may include:

(A) if a service backup plan is required by §41.404 of this title (relating to Ensuring Development, Approval, and Review of Service Backup Plans), implementing the service backup plan to have a person other than the alleged perpetrator provide services; and

(B) requesting a voluntary suspension of participation in the CDS option in accordance with §41.405 of this chapter (relating to Suspension of Participation in the CDS Option);

(2) document in writing any actions that have been or will be taken as a result of the allegation; and

(3) if appropriate, recommend termination of the CDS option in accordance with §41.407 of this chapter (relating to Termination of Participation in the CDS Option).

(e) After receiving a final investigative report from HHSC for an allegation of abuse, neglect, or exploitation described in subsection (a) of this section, the FMSA must:

(1) within one working day after receiving the report, send a copy of the report by fax or secure email to:

(A) the program director of the entity employing the individual's case manager for an individual enrolled in the CLASS Program or the DBMD Program;

(B) the rights protection officer, as required by §4.113 of this title, of the LIDDA employing the individual's service coordinator for an individual enrolled in the HCS Program or the TxHmL Program; or

(C) the individual's HHSC regional office for an individual enrolled in the PHC Program, the CAS Program, or the FC Program; and

(2) within five working days after receiving the report:

(A) use the report to complete HHSC Form 1719, Notification of Investigatory Findings; and

(B) send the completed form to the alleged perpetrator.

(f) For an individual enrolled in:

(1) the DBMD Program or CLASS Program, a program director is required to give the final investigative report received from the individual's FMSA to the individual's case manager as described in §42.401 of this title or §45.702 of this title; or

(2) the HCS Program or TxHmL Program, a rights protection officer is required to give the final investigative report received from the individual's FMSA to the individual's service coordinator as described in §9.190 of this title or §9.583 of this title.

(g) If the final investigative report confirms the allegation, contains an inconclusive finding, or includes concerns and recommendations, the case manager or service coordinator:

(1) must:

(A) within four working days after receiving the report, convene a service planning team meeting in person or by phone to discuss the content of the report, including any concerns and recommendations by HHSC; and

(B) document in writing any actions that have been or will be taken by the employer as a result of the findings in the report or the concerns and recommendations by HHSC; and

(2) if appropriate, recommend termination of the CDS option, in accordance with §41.407 of this chapter.

§41.703.Requirements Related to HHSC Investigations When an Alleged Perpetrator is a Staff Person or a Controlling Person of an FMSA.

(a) If a report required by §41.701(c) of this subchapter (relating to Reporting Allegations of Abuse, Neglect, or Exploitation of an Individual) alleges abuse, neglect, or exploitation of an individual by a staff person or a controlling person; or if an FMSA is notified by HHSC of an allegation of abuse, neglect, or exploitation by a staff person or a controlling person, the FMSA must:

(1) 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 receiving services from the FMSA until HHSC completes the investigation; and

(2) preserve and protect any evidence related to the allegation.

(b) Within one working day after receiving the initial intake report from HHSC for an allegation of abuse, neglect, or exploitation described in subsection (a) of this section, the FMSA must send a copy of the report by fax or secure email to:

(1) the program director of the entity employing the individual's case manager for an individual enrolled in the CLASS Program or the DBMD Program;

(2) the rights protection officer, as required by §4.113 of this title (relating to Rights Protection Officer at a State MR Facility or MRA), of the LIDDA employing the individual's service coordinator for an individual enrolled in the HCS Program or the TxHmL Program; or

(3) the individual's HHSC regional office for an individual enrolled in the PHC Program, the CAS Program, or the FC Program.

(c) During an HHSC investigation of an alleged perpetrator who is a staff person or controlling person:

(1) an FMSA must:

(A) cooperate with the investigation as requested by HHSC, including providing documentation and participating in an interview;

(B) provide HHSC access to:

(i) sites owned, operated, or controlled by the FMSA;

(ii) staff persons and controlling persons; and

(iii) records pertinent to the investigation of the allegation; and

(C) ensure that staff persons and controlling persons comply with subparagraphs (A) and (B) of this paragraph; and

(2) the employer or DR must:

(A) cooperate with the investigation as requested by HHSC, including providing documentation and participating in an interview;

(B) provide HHSC access to:

(i) service providers; and

(ii) records pertinent to the investigation of the allegation; and

(C) ensure that service providers comply with subparagraph (A) of this paragraph.

(d) For an individual enrolled in:

(1) the DBMD Program or CLASS Program, a program director is required to give the initial intake report received from the individual's FMSA to the individual's case manager as described in §42.401 of this title (relating to Protection of Individual) or §45.702 of this title (relating to Protection of Individual, Initial and Annual Explanations, and Offering Access to Other Services); or

(2) the HCS Program or TxHmL Program, a rights protection officer is required to give the initial intake report received from the individual's FMSA to the individual's service coordinator as described in §9.190 of this title (relating to LIDDA Requirements for Providing Service Coordination in the HCS Program) or §9.583 of this title (relating to TxHmL Program Principles for LIDDAs).

(e) A case manager or service coordinator who receives an initial intake report must:

(1) within four working days after receiving the report, convene a service planning team meeting in person or by phone to review the report and discuss the actions the employer has taken or will take, which may include:

(A) transferring to a different FMSA in accordance with §41.403 of this chapter (relating to Transfer Process) to protect the individual during the HHSC investigation; and

(B) requesting a voluntary suspension of participation in the CDS option in accordance with §41.405 of this chapter (relating to Suspension of Participation in the CDS Option);

(2) document in writing any actions that have been or will be taken as a result of the allegation; and

(3) if appropriate, recommend termination of the CDS option in accordance with §41.407 of this chapter (relating to Termination of Participation in the CDS Option).

(f) After an FMSA receives a final investigative report from HHSC for an investigation described in subsection (c) of this section, the FMSA must:

(1) within one working day after receiving the report, send a copy of the report by fax or secure email to:

(A) the program director of the entity employing the individual's case manager for an individual enrolled in the CLASS Program or the DBMD Program;

(B) the rights protection officer, as required by §4.113 of this title, of the LIDDA employing the individual's service coordinator for an individual enrolled in the HCS Program or the TxHmL Program; or

(C) the individual's HHSC regional office for an individual enrolled in the PHC Program, the CAS Program, or the FC Program; and

(2) within five working days after receiving the report:

(A) use the report to complete HHSC Form 1719, Notification of Investigatory Findings;

(B) send the completed form to the alleged perpetrator; and

(C) take appropriate action within the FMSA's authority in response to the HHSC investigation, including, when warranted, disciplinary action against a staff person confirmed to have committed abuse, neglect, or exploitation.

(g) For an individual enrolled in:

(1) the DBMD Program or CLASS Program, a program director is required to give the final investigative report received from the individual's FMSA to the individual's case manager as described in §42.401 of this title or §45.702 of this title; or

(2) the HCS Program or TxHmL Program, a rights protection officer is required to give the final investigative report received from the individual's FMSA to the individual's service coordinator as described in §9.190 of this title or §9.583 of this title.

(h) If a final investigative report confirms the allegation, contains an inconclusive finding, or includes concerns and recommendations, a case manager or service coordinator must:

(1) within four working days after receiving the report, convene a service planning team meeting in person or by phone to discuss the content of the report, including any concerns and recommendations by HHSC; and

(2) document in writing any actions that have been or will be taken by the employer as a result of the findings in the report or the concerns and recommendations by HHSC.

(i) An FMSA must not retaliate against:

(1) a staff person, 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; or

(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 the individual.

(j) At least annually, an FMSA must review all final investigative reports from HHSC for investigations described in subsection (c) of this section and, based on the review, identify program process improvements that help prevent the occurrence of abuse, neglect, and exploitation and improve the delivery of FMS.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900492

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-3395


CHAPTER 42. DEAF BLIND WITH MULTIPLE DISABILITIES (DBMD) PROGRAM AND COMMUNITY FIRST CHOICE (CFC) SERVICES

As required by Texas Government Code, §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all of its functions were transferred to the Health and Human Services Commission (HHSC) in accordance with Texas Government Code, §531.0201 and §531.02011. Rules of the former DADS are codified in Texas Administrative Code, Title 40 (40 TAC), Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1 govern functions previously performed by DADS that have transferred to HHSC. Texas Government Code, §531.0055, requires the executive commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, including rules in Title 40, Part 1. Therefore, the executive commissioner of HHSC proposes amendments to §§42.103, 42.201, 42.211, 42.212, 42.216, 42.221, 42.223, 42.301, 42.401, 42.405, 42.406, 42.613, 42.614, 42.617, 42.623, 42.632, and 42.641; new §§42.220, 42.403, 42.410, and 42.411; and the repeal of §42.222 and §42.403, in Chapter 42, Deaf Blind with Multiple Disabilities (DBMD) Program and Community First Choice (CFC) Services.

BACKGROUND AND PURPOSE

Chapter 42, Deaf Blind with Multiple Disabilities and Community First Choice (CFC) Services, governs the Deaf Blind with Multiple Disabilities (DBMD) Program. The DBMD Program is a Medicaid waiver program approved by the Centers for Medicare & Medicaid Services (CMS) under §1915(c) of the Social Security Act. It provides community-based services and supports to an eligible individual as an alternative to services provided in an institutional setting through the Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions (ICF/IID) Program. An individual in the DBMD Program receives DBMD program services, including case management, and CFC services from a single DBMD program provider.

One of the purposes of the proposed rules is to address adjustments to the investigatory process for abuse, neglect, and exploitation as a result of amendments to Texas Human Resources Code, Chapter 48, and Texas Family Code, Chapter 261, effective September 1, 2015. The amendments gave the Department of Family and Protective Services (DFPS) Adult Protective Services (APS) Provider Investigation (PI) Program the authority to investigate an allegation of abuse, neglect or exploitation of an individual in the DBMD Program when the alleged perpetrator is a service provider, staff person, volunteer, or controlling person of a DBMD program provider. Effective September 1, 2017, in accordance with Texas Government Code, §§531.02011 and 531.02013, the functions performed by the DFPS APS PI Program were transferred to HHSC. The proposed rules address investigations of allegations of abuse, neglect, and exploitation conducted by HHSC for an individual in the DBMD Program and describe requirements for the DBMD program provider to protect an individual from abuse, neglect, and exploitation and help ensure the health, safety, and welfare of an individual who is abused, neglected, or exploited.

The proposed rules also include the current requirements in 40 TAC §49.310, Abuse, Neglect, and Exploitation Allegations, that apply to a DBMD program provider. Rules in 40 TAC Chapter 49, Contracting for Community Services, are proposed for amendment in this issue of the Texas Register, to exclude the DBMD program provider from §49.310. These rules are proposed in Chapter 42 to use terminology specific to the DBMD Program, add specificity to the current requirements of §49.310, and add new requirements for a DBMD program provider. For example, the proposed rules require a DBMD program provider to (1) conduct training of program directors, service providers, staff persons, and volunteers related to abuse, neglect, and exploitation according to specified time frames; (2) ensure that the persons who are trained are knowledgeable about signs and symptoms of abuse, neglect, or exploitation; and (3) educate an individual and legally authorized representative (LAR) or person actively involved with the individual about protecting the individual from abuse, neglect, and exploitation.

The proposed rules require a DBMD program provider to report critical incidents to HHSC to address the CMS requirement that HHSC have an incident management system in place to help ensure an individual's health and welfare.

In response to direction from CMS to help meet the requirement in the Code of Federal Regulations, Title 42 (42 CFR), §441.302(b) regarding financial accountability, the proposed rules require a program provider to ensure that, after a DBMD case manager or other program service provider completes an HHSC Documentation of Services Delivered form, that a staff person other than the case manager or service provider who completed the form signs and dates the form as a timekeeper as verification of the accuracy of the information on the form.

In response to direction from CMS to meet the requirement in 42 CFR §441.302(c)(2), regarding reevaluations of an individual's level of care (LOC), and §441.301(c)(3) regarding reviews of an individual's service plan, the proposed rules require a DBMD program provider to have and implement written policies and procedures to ensure the case manager complies with the requirement to submit to HHSC, at least 30 calendar days before the expiration of an individual's individual plan of care (IPC) period, the documentation HHSC needs to determine whether an individual continues to meet the required LOC and whether the individual's IPC will be authorized. The proposed rules require a program provider's written policies and procedures to include using a written or electronic tracking system that alerts the provider to activities that must occur for the provider to timely submit the documentation to HHSC. The proposed rules also replace "diagnostic eligibility" with "LOC VIII" throughout the chapter to conform with the terms used in the eligibility criteria for the DMBD Program described in 40 TAC §9.239.

The proposed rules address a CMS requirement that, if an individual's LOC VIII expires before HHSC determines whether the individual meets the LOC VIII criteria or an individual's IPC period expires before HHSC authorizes a proposed renewal IPC, the DBMD program provider must continue to provide services to the individual until HHSC authorizes the proposed renewal IPC to ensure continuity of care and prevent the individual's health and welfare from being jeopardized.

In response to direction from CMS to meet the requirement in 42 CFR, §441.302(d), the proposed rules require a DBMD program provider to, at least annually after enrollment, obtain the signature of the individual or LAR on a Waiver Program Verification of Freedom of Choice form documenting the individual's or LAR's choice of the DBMD Program over the ICF/IID Program.

The proposed rules require a service provider of CFC personal assistance services/habilitation (PAS/HAB) to have certification in cardiopulmonary resuscitation (CPR), first aid, and choking prevention so that the service provider is prepared and qualified to assist an individual who needs CPR.

The proposed rules require a DBMD program provider to electronically access the Medicaid Eligibility Service Authorization Verification (MESAV) system to determine if the information on an individual's enrollment IPC, revision IPC, or renewal IPC authorized by HHSC is consistent with the information in MESAV and, if inconsistent, to notify HHSC of the inconsistency. The purpose of this requirement is to help prevent billing discrepancies and payment adjustments that result from inaccurate information being entered into MESAV.

The proposed rules also update agency names and replace specific website addresses.

SECTION-BY-SECTION SUMMARY

The proposed amendments change "DADS" to "HHSC" throughout Chapter 42 to reflect that DADS was abolished effective September 1, 2017, and functions have transferred to HHSC.

The proposed amendment to §42.103, Definitions, adds a definition for "abuse," "alleged perpetrator," "exploitation," "neglect," "physical abuse," "sexual abuse," "sexual activity," "sexual exploitation," and "verbal or emotional abuse," because those terms are related to abuse, neglect, and exploitation. The proposed amendment adds a definition for "controlling person," "staff person," and "volunteer" because those terms are related to abuse, neglect, and exploitation and to safeguarding an individual against conflicts of interest, acts of financial impropriety, and damage of personal possessions. The proposed amendment adds a definition for "LOC--Level of care" to use instead of "diagnostic eligibility," a term not defined but used in other sections of Chapter 42. The use of "LOC" is consistent with the eligibility criteria described in 40 TAC §9.239, one of the eligibility criterion for the CLASS Program as stated in §42.201(a)(2). The proposed amendment adds definitions for "MESAV--Medicaid Eligibility Service Authorization Verification," and "THSC--Texas Health and Safety Code," terms used in the chapter. The proposed amendment places "military family member" in its correct alphabetical position and replaces "psychoactive medication restraint" with "chemical restraint," the HHSC term used in critical incident reporting. The proposed amendment defines the "Department of Assistive and Rehabilitative Services" as "The Texas Workforce Commission" and changes the definition of "DADS" to reflect the consolidation of the health and human services agencies. The proposed amendment also updates agency names and references to rules and websites and makes minor editorial changes.

The proposed amendment to §42.201, Eligibility Criteria for DBMD Program Services and CFC Services, replaces "diagnostic eligibility" with "LOC VIII." The proposed amendment deletes the condition of eligibility in §42.201(a)(4) that an individual must be diagnosed with a related condition that manifested before the individual was 22 years of age, because this condition is already included in the eligibility criteria in 40 TAC §9.239, as referenced in §42.201(a)(2). The proposed amendment also updates terminology and references to websites and makes minor editorial changes.

The proposed amendment to §42.211, Written Offer of DBMD Program Services, uses the phrase "written offer of enrollment in the DBMD Program" instead of "written offer of DBMD Program services" because the DBMD Program offers DBMD Program services and CFC services. The proposed amendment also changes the title of the section.

The proposed amendment to §42.212, Process for Enrollment of an Individual, requires that, at the face-to-face visit with an individual during enrollment, the case manager explain to the individual and LAR that a complaint is made by calling the HHSC Consumer Rights and Services toll-free telephone number at 1-800-458-9858 and an allegation of abuse, neglect or exploitation is reported to DFPS by calling the toll-free telephone number at 1-800-252-5400. The DFPS telephone number is added because DFPS is responsible for the intake of all reports alleging abuse, neglect, or exploitation of an individual and the Consumer Rights and Services telephone number is added because, in accordance with 40 TAC §49.309, Complaint Process, that division of HHSC is handling complaints related to DBMD program providers. The proposed amendment also requires that a case manager, at the face-to-face visit, educate the individual and LAR about protecting the individual from abuse, neglect, and exploitation to help ensure the health and safety of the individual. The proposed amendment includes the current requirement for a case manager, at the face-to-face visit, to complete a Related Conditions Eligibility Screening Instrument, or ensure a registered nurse (RN), within 10 business days after the date of the face-to-face visit, completes a Related Conditions Eligibility Screening Instrument. The proposed amendment removes the requirement that the case manager obtain the signature of the individual or LAR on a DADS Release of Information Consent form or a similar form developed by the program provider because no such agency form exists. The proposed amendment requires, at the service planning team (SPT) meeting convened by a case manager to develop an individual's enrollment IPC, that the SPT review the CLASS/DBMD Nursing Assessment form completed by the RN; address any information included in Addendum E of the form regarding recommendations by the RN; and document on the CLASS/DBMD Coordination of Care form how the information in Addendum E was addressed. This change is proposed to help ensure the SPT addresses any health and safety concerns identified by the RN when developing an individual's enrollment IPC and individual program plan (IPP). The proposed amendment clarifies that a Prior Authorization for Dental Services form; a Rationale for Adaptive Aids, Medical Supplies, and Minor Home Modifications form; a Provider Agency Model Service Backup Plan form; a Specialized Nursing Certification form; and a Transition Assistance Services Assessment and Authorization form are included with a request for enrollment only if required by specified provisions in Chapter 42. The proposed amendment removes the provision that the program provider keep the original Intellectual Disability/Related Conditions (ID/RC) Assessment, signed by a physician, in the individual's record because this requirement is in §42.405. The proposed amendment makes a reference to §42.216 to require the case manager to provide documentation to the individual or LAR and the financial management services agency (FMSA). The proposed amendment also updates rule references and websites and makes minor editorial changes.

The proposed amendment to §42.216, DADS Review of Request for Enrollment, reorganizes provisions to place the criteria for HHSC's approval of a request for enrollment in subsection (a). The proposed amendment includes the requirement, as referenced in §42.212(o), that a case manager provide a copy of the enrollment IPC, the IPP, and any service backup plan to the individual or LAR if the request for enrollment is approved by HHSC. The proposed amendment also requires, if the enrollment request is approved and the individual will receive a service through the consumer directed services (CDS) option, that the case manager send a copy of the enrollment IPC, the IPP, and if required, the transportation plan to the FMSA to make consistent with current requirements of a case manager when a renewal or revision IPC is approved by HHSC. The proposed amendment requires a program provider to electronically access the MESAV system to determine if the information on an individual's enrollment IPC authorized by HHSC is consistent with the information in MESAV and, if inconsistent, to notify HHSC of the inconsistency. The proposed amendment also updates terminology and rule references and makes minor editorial changes.

Proposed new §42.220, Tracking Annual Renewal of an ID/RC Assessment and an IPC, requires a DBMD program provider to have and implement written policies and procedures to ensure the program provider complies with the requirement in §42.223 to submit to HHSC, at least 30 calendar days before the expiration of an individual's IPC period, the documentation HHSC needs to determine whether an individual continues to meet the required LOC and whether an individual's IPC will be authorized. The proposed rule also requires a program provider's written policies and procedures to include using a written or electronic tracking system that alerts the program provider to activities that must occur for the program provider to timely submit the documentation to HHSC.

The proposed amendment to §42.221, Utilization Review of IPC by DADS, retitles the section and updates rule references.

The proposed repeal of §42.222, Annual Review and Reinstatement of Lapsed Diagnostic Eligibility, deletes the current requirements for annual review of an individual's diagnostic eligibility and reinstatement of lapsed diagnostic eligibility. New requirements addressing this issue are included in the proposed amendment to §42.223.

The proposed amendment to §42.223, Periodic Review and Update of IPC and IPP, clarifies that a transportation plan; a Provider Agency Model Service Backup Plan form; a Rationale for Adaptive Aids, Medical Supplies, and Minor Home Modifications form; a Specifications for Minor Home Modifications form; a Prior Authorization for Dental Services form; and a Specialized Nursing Certification form are included with a revision IPC submitted to HHSC only if required by specified provisions in Chapter 42. The proposed amendment removes the requirements that a copy of the most recent IPC and an adaptive behavior screening assessment be submitted to HHSC with a revision IPC because these documents are not necessary for HHSC's review of a revision IPC. The proposed amendment requires that, within 90 calendar days before the end of an IPC period, the individual's case manager convene an SPT meeting, "with the individual present, at a location chosen by the individual or LAR" to review the IPC and IPP. The requirement for a face-to-face meeting was included to give the case manager a better opportunity to evaluate the individual's wellbeing, ensure that the individual is receiving appropriate services, and detect any possible abuse, neglect or exploitation. This new requirement also helps ensure that person-centered planning is effectively conducted. The proposed amendment includes the current requirement that within 90 calendar days before the end of an IPC period, an RN or a case manager complete a Related Conditions Eligibility Screening Instrument. The proposed amendment requires, at the SPT meeting convened by a case manager for renewal of an individual's IPC, that the SPT review the CLASS/DBMD Nursing Assessment form completed by the RN; address any information included in Addendum E of the form regarding recommendations by the RN; and document on the CLASS/DBMD Coordination of Care form how the information in Addendum E was addressed. This change is proposed to help ensure the SPT addresses any health and safety concerns identified by the RN when developing a renewal IPC and IPP. The proposed amendment deletes the requirement that the SPT complete a renewal ID/RC Assessment "in accordance with the DBMD Provider Manual" because the form instructions address how to complete the form. The proposed amendment requires that at the SPT meeting, the case manager educate the individual and LAR about protecting the individual from abuse, neglect, and exploitation to help ensure the health and safety of the individual. The proposed amendment also requires the case manager, at the SPT meeting, to give the individual or LAR the HHSC Waiver Program Verification of Freedom of Choice form documenting the individual's or LAR's choice of the DBMD Program over the ICF/IID Program; and consistent with the requirement for the enrollment process, explain that the individual or LAR may request the provision of residential habilitation, case management, nursing, out-of-home respite in a camp, adaptive aids, intervener services, or CFC PAS/HAB while the individual is temporarily staying at a location outside the contracted service delivery area but within the state of Texas during a period of no more than 60 consecutive days. The proposed amendment deletes the requirement that the case manager explain that the individual may request an SPT meeting if the program provider declines a request to provide services outside the program provider's contracted service delivery area, because this requirement is included in §42.404(j). The proposed amendment removes the requirement that a copy of the most recent IPC be submitted to HHSC with a renewal IPC because that document is not necessary for HHSC's review of a revision IPC. The proposed amendment requires that a copy of the Waiver Program Verification of Freedom of Choice form be submitted to HHSC with a renewal IPC. The proposed amendment clarifies the current requirement that an adaptive behavior screening assessment be completed by an appropriate professional at least every five years after completion of the most current assessment and if significant changes occur in the individual's functioning. The proposed amendment describes the process for HHSC to determine whether an individual meets the LOC VIII and additional criteria described in §42.201(a)(3). This process is currently included in §42.222. The proposed amendment requires that, if an individual's LOC VIII and additional criteria expire before HHSC determines whether the individual meets the criteria, the program provider continues to provide services to the individual until HHSC authorizes the proposed renewal IPC to ensure continuity of care and prevent the individual's health and welfare from being jeopardized. The proposed amendment includes a provision currently in §42.222 describing how HHSC will reimburse the program provider for services provided while the LOC VIII and additional criteria are expired, if HHSC determines that the individual meets the criteria and the individual is otherwise eligible for the DBMD Program. The proposed amendment reorganizes the section so that provisions regarding HHSC's review of a revision or renewal IPC are in new subsection (f). The proposed amendment requires that, if an individual's IPC period expires before HHSC authorizes a renewal IPC, the program provider continue to provide services to the individual until HHSC authorizes the renewal IPC to ensure continuity of care and prevent the individual's health and welfare from being jeopardized. The proposed amendment describes how HHSC will reimburse the program provider for services provided during the time the IPC was expired, if HHSC authorizes the renewal IPC. The proposed amendment requires a program provider to electronically access the MESAV system to determine if the information on an individual's revision IPC or renewal IPC authorized by HHSC is consistent with the information in MESAV and, if inconsistent, to notify HHSC of the inconsistency. The proposed amendment includes a reference to §42.221 which describes the process by which an individual's DBMD program services or CFC services are terminated or a DBMD Program service or CFC service is denied or reduced, based on HHSC's review of a revision IPC or a renewal IPC. The proposed amendment also retitles the section, updates rule references and makes minor editorial changes.

The proposed amendment to §42.301, Program Provider Compliance with Rules, includes the requirement that a program provider comply with 40 TAC Chapter 97 and if providing licensed assisted living, 40 TAC Chapter 92.

The proposed amendment to §42.401, Protection of Individual, requires a program provider to have written policies and procedures to safeguard an individual against conflicts of interest with and deliberate damage of personal possessions by a staff person, volunteer, and a controlling person of the program provider. This addition is to help ensure the health and welfare of an individual. A program provider is already required to have such policies regarding a service provider. The proposed rule also requires a program provider to have written policies and procedures to safeguard an individual against abuse, neglect, and exploitation. The proposed amendment requires a program provider, in accordance with the DBMD Provider Manual, to report critical incidents to HHSC using the CLASS/DBMD Notification of Critical Incidents form. The proposed amendment requires a program provider to ensure that a program director sends a copy of an HHSC initial intake and final investigative report to the individual's case manager so that the case manager can perform functions related to those reports as required by 40 TAC Chapter 41 (relating to Consumer Directed Services Option). The proposed amendment also makes minor editorial changes.

Proposed new §42.403, Training, includes the current requirement for a program provider to provide general orientation training to its program director and service providers. The proposed rule does not include the topic of abuse, neglect, and exploitation in the list of the general orientation curriculum because training on abuse, neglect, and exploitation is addressed separately in the new section. The proposed rule also includes requirements for the program provider regarding documentation of the training. The proposed amendment requires a program provider to ensure that a program director, service provider, staff person, and volunteer (1) are trained on and knowledgeable of acts that constitute, signs and symptoms of, and methods to prevent abuse, neglect, and exploitation; (2) are instructed to call the DFPS Abuse hotline or use the DFPS Abuse Hotline website to report to DFPS immediately, but not later than 24 hours after having knowledge or suspicion, that an individual has been or is being abused, neglected, or exploited; and (3) are provided the instructions, in writing. For a program director, service provider, staff person, or volunteer hired before September 1, 2018, the program provider must conduct these activities within one year after the person's most recent training on abuse, neglect, and exploitation and annually thereafter. For a program director, service provider, staff person, or volunteer hired on or after September 1, 2018, the program provider must conduct these activities before assuming job duties and annually thereafter. The requirement for a program provider to conduct the activities within one year after a person's most recent training, or by September 1, 2018, is consistent with a requirement included in an information letter. The proposed rule includes requirements for the program provider regarding documentation of the training. The proposed rule addresses the current requirement that a program provider ensure that certain staff persons and service providers are trained in CPR, first aid, and choking prevention. The proposed rule requires that certain staff persons and service providers have "current certification" in CPR, first aid, and choking prevention and also includes a service provider of CFC PAS/HAB as a person who must have the certification. The requirement for certification is added to help ensure that a staff person and service provider are properly trained and that a program provider has sufficient documentation to verify the training. The proposed rule requires that the training received to obtain the certification include an in-person evaluation by a qualified instructor of the trainee's ability to perform CPR, first aid, and choking prevention to help ensure that the trainee is capable of performing these activities. The proposed rule describes the time frame for a CFC PAS/HAB service provider to be certified in CPR, basic first aid, and choking prevention based on whether the service provider was hired on or before, or hired after, the original effective date of proposed new §42.403. The proposed rule requires all other staff persons and service providers who must have certification in CPR, first aid, and choking prevention to have the certification before assuming job duties. The proposed rule requires that a program provider maintain a copy of the required certification and that the certification be issued by the organization granting the certification. The proposed rule requires a program provider to ensure that a program director and case manager complete the HHSC Deaf Blind with Multiple Disabilities Waiver Computer Based Training and receives a score of at least 80 percent on the examination included in the training. The training is designed to help program providers ensure the successful development and completion of IPCs and supporting documentation so that IPCs can be reviewed and authorized by HHSC in a more timely manner. For a program director or case manager hired before September 1, 2018, the program provider must ensure the person receives the training and achieves the required examination score within 90 days after September 1, 2018, and annually thereafter. For a program director or case manager hired on or after September 1, 2018, the program provider must ensure the person receives the training and achieves the required examination score within 90 days after assuming job duties and annually thereafter. The requirement for a program provider to ensure a program director or case manager receives the training and achieves the required examination score based on whether the person was hired before September 1, 2018, or was hired on or after September 1, 2018, is consistent with a requirement included in an information letter. The proposed rule requires that a program provider maintain a copy of the certification from the Deaf Blind with Multiple Disabilities Waiver Computer Based Training, issued by HHSC, showing that the person successfully completed the training. The proposed rule includes the current requirement that a program director and case manager complete the DBMD Program Case Management Training. The proposed rule describes the documentation the program provider must maintain if HHSC provides the training and documentation the program provider must maintain if the program provider develops and conducts the training. The proposed rule includes the current requirement that certain staff persons and service providers complete the DBMD Service Provider Training but also includes a service provider of CFC PAS/HAB as a person who must receive the training. The proposed rule clarifies that a case manager and a program director providing certain services must complete the training within six months after assuming job duties. The proposed rule describes the time frame for a CFC PAS/HAB service provider to complete the training based on whether the service provider was hired on or before, or hired after, the original effective date of proposed new §42.403. The proposed rule also describes the documentation the program provider must maintain if HHSC provides the training and documentation the program provider must maintain if the program provider develops and conducts the training. The proposed rule includes the current requirement that certain service providers complete training on the needs of the individual but also includes a service provider of CFC PAS/HAB as a person who must receive the training. The proposed rule describes the time frame for a CFC PAS/HAB service provider to complete the training based on whether the service provider was hired on or before, or hired after, the original effective date of proposed new §42.403. The proposed rule deletes the current requirement that a service provider who has not completed the DBMD Service Provider Training must, while providing services to an individual, be accompanied by a service provider who has completed the training. HHSC determined this requirement is overly burdensome for a program provider and unnecessary because within a short period of time after this rule is effective, all service providers will have received training on the individual's needs as described in subsection (g) before providing services. The proposed rule describes the documentation the program provider must maintain if HHSC provides the training and documentation the program provider must maintain if the program provider develops and conducts the training. The proposed rule includes the current requirement that certain service providers complete training on the needs of the individual but also includes a service provider of CFC PAS/HAB as a person who must receive the training. The proposed rule describes the time frame for a CFC PAS/HAB service provider to complete the training based on whether the service provider was hired on or before, or hired after, the original effective date of proposed new §42.403. The proposed rule includes requirements for the program provider regarding documentation of the training. The proposed rule includes the current requirement that a service provider performing a delegated task is trained to perform the delegated task in accordance with state law and rules. The proposed rule includes requirements for the program provider regarding documentation of the training. The proposed rule includes the current requirement that a service provider who is responsible for developing the IPP for CFC PAS/HAB completes person-centered service planning training approved by HHSC. The proposed rule includes requirements for the program provider regarding documentation of the training. The proposed rule includes the current requirements for training of a CFC PAS/HAB service provider as requested by the individual or LAR. The proposed rule also includes current requirements regarding training on protective devices and on restraints.

The proposed amendment to §42.405, Recordkeeping Requirements, reorganizes the section so that the requirements for documentation of a service are in subsection (a). The proposed amendment, in accordance with current practice, excepts certain services from the requirement that specific information be documented when a service provider provides a service. The proposed amendment requires that a service provider document the type of service provided and includes the current requirement that a service provider complete an HHSC DBMD Summary of Services Delivered form to document the provision of a service. The proposed amendment requires that a program provider ensure that, after a service provider makes the last entry on an HHSC DBMD Summary of Services Delivered form, a staff person other than the service provider who completed the form signs and dates the form as a timekeeper as verification of the accuracy of the information on the form. The proposed amendment requires a program provider to keep in the record any IPC authorized for the current IPC period, in addition to the individual's current IPC; any IPP developed for the current IPC period, in addition to the individual's current IPP; the current Related Conditions Eligibility Screening Instrument; and the documentation made by a service provider when a service is provided. The proposed amendment also makes minor editorial changes.

The proposed amendment to §42.406, Quality Assurance, requires a program provider to review all final investigative reports from HHSC, and identify program process improvements that help prevent the occurrence of abuse, neglect, or exploitation and improve the delivery of services. The proposed amendment requires a program provider to evaluate critical incident data, compare its use of restraint to aggregate data provided by HHSC on HHSC's website, and identify program process improvements that help prevent the occurrence of critical incidents and improve service delivery. The proposed amendment also removes provisions prohibiting retaliation against a service provider, individual, or other person because that issue is addressed in proposed new §42.411.

Proposed new §42.410, Reporting Allegations of Abuse, Neglect, or Exploitation of an Individual, requires a DBMD program provider, if the program provider, service provider, staff person, volunteer, or controlling person of the program provider knows or suspects an individual is being or has been abused, neglected, or exploited, to report or ensure that the person with knowledge or suspicion reports the allegation of abuse, neglect, or exploitation (1) for an individual receiving licensed assisted living, in accordance with 40 TAC Chapter 92 of this title (relating to Licensing Standards for Assisted Living Facilities); or (2) for an individual who is not receiving licensed assisted living, to DFPS immediately, but not later than 24 hours after having knowledge or suspicion by calling the DFPS Abuse hotline or using the DFPS Abuse Hotline website.

Proposed new §42.411, Requirements Related to the Abuse, Neglect, and Exploitation of an Individual, describes the actions that a DBMD program provider must take, if necessary, to support and protect an individual if a report required by §42.410 is made. The proposed rule requires the program provider, during an HHSC investigation of an alleged perpetrator who is a service provider, staff person, volunteer, or controlling person of a program provider, to cooperate with the investigation; provide HHSC access to sites, individuals, staff persons, volunteers, controlling persons, and pertinent records; and ensure that service providers, staff persons, volunteers, and controlling persons of the program provider comply with these requirements. The proposed rule describes the actions a program provider must take after the program provider receives a final investigative report from HHSC for an investigation in which the alleged perpetrator is a service provider, staff person, volunteer, or controlling person of a program provider, including taking appropriate action within the program provider's authority to prevent the reoccurrence of abuse, neglect or exploitation. The proposed rule includes requirements regarding the program provider's notifying the individual, the LAR, and the case manager of the investigation finding and the action taken by the program provider in response to the HHSC investigation. The proposed rule also prohibits a program provider from retaliating against a service provider, staff person, 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; or 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 the individual.

The proposed amendment to §42.613, Requesting Authorization to Purchase a Minor Home Modification that Costs Less than $1,000, removes the requirement for a program provider to use MESAV to verify that services requested on an IPC have been authorized by HHSC because this requirement is now addressed in §42.216 and §42.223. The proposed amendment also makes minor editorial changes and updates rule references.

The proposed amendment to §42.614, Requesting Authorization to Purchase a Minor Home Modification that Costs $1,000 or More, removes the requirement for a program provider to use MESAV to verify that services requested on an IPC have been authorized by HHSC because this requirement is now addressed in §42.216 and §42.223. The proposed amendment also makes minor editorial changes and updates rule references.

The proposed amendment to §42.617, Time Frames for Completion of Minor Home Modification, updates rule references.

The proposed amendment to §42.623, Case Management, clarifies that only certain activities are billable as case management. The proposed amendment also makes minor editorial changes and updates a rule reference.

The proposed amendment to §42.632, Therapies, clarifies that the program provider must provide or ensure the provision of therapies offered in DBMD. The proposed amendment also makes minor editorial changes and updates the title of the rule.

The proposed amendment to §42.641, Non-Billable Time and Activities, includes a current HHSC policy that a program provider must not bill for and HHSC does not reimburse for two or more services provided at the same time by the same service provider.

FISCAL NOTE

Ms. Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that for each year of the first five years that the sections will be in effect, there is no anticipated impact to costs and revenues of state or local governments as a result of enforcing and administering the sections as proposed.

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

(3) implementation of the proposed rules will not require an increase or decrease in future legislative appropriations;

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

(5) the proposed rules will create new rules;

(6) the proposed rules will expand an existing rule;

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

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

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

Ms. Greta Rymal, Deputy Executive Commissioner for Financial Services, has also determined that there will be an adverse economic effect on DBMD program providers that are small businesses or micro-businesses.

A program provider may incur a cost for providing a two-year certification in CPR, first aid, and choking prevention; providing training related to abuse, neglect, and exploitation; revising their abuse, neglect, and exploitation policies and procedures; and revising written information that must be provided to staff and individuals related to abuse, neglect, or exploitation. Program providers may also incur a cost for completion of the HHSC DBMD Computer Based Training by management staff; time and travel expenses for completion of HHSC's DBMD Program Service Provider Training by CFC PAS/HAB service providers; completion of training on the needs of an individual by CFC PAS/HAB service providers; and reporting critical incidents to HHSC and annually evaluating any incidents reported. HHSC lacks sufficient data to estimate the number of program providers designated as a small business or micro-business that would be impacted by the proposed rules.

HHSC has determined that alternative methods to achieve the purpose of the proposed rules for small businesses or micro-businesses would not be consistent with ensuring the health and safety of individuals receiving services in the DBMD Program.

Ms. Rymal has also determined that there will not be an adverse economic effect on rural communities because there is no rural community that contracts with HHSC as a DBMD program provider.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There are anticipated economic costs to persons who are required to comply with the sections as proposed. Program providers may incur a cost for providing a two-year certification in CPR, first aid, and choking prevention; providing training related to abuse, neglect, and exploitation; updating abuse, neglect, and exploitation policies and procedures; and revising written information that must be provided to staff and individuals. Program providers may also incur a cost for completing the HHSC DBMD Computer Based Training by management staff; time and travel expenses for completing HHSC's DBMD Program Service Provider Training by CFC PAS/HAB service providers; completing training on the needs of an individual by CFC PAS/HAB service providers; and reporting critical incidents to HHSC and annually evaluating any incidents reported. HHSC lacks sufficient data to estimate these costs.

There is no anticipated negative impact on local employment.

COSTS TO REGULATED PERSONS

Texas Government Code, §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas and to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT

Stephanie Muth, State Medicaid Director, has determined that for each year of the first five years the sections are in effect, the public will benefit from adoption of the sections. The public benefit anticipated as a result of enforcing or administering the sections will be an improved system that identifies, addresses, and seeks to prevent instances of abuse, neglect, and exploitation, and provides greater protections for individuals in the DBMD Program who are subjected to abuse, neglect, and exploitation. Other anticipated public benefits are a critical incident reporting system to help ensure the health and welfare of individuals; the provision of services to individuals after the expiration of LOCs or IPCs to protect their health and welfare; CFC PAS/HAB service providers who are trained in CPR, first aid, and choking prevention; and more timely authorizations of IPCs and greater financial accountability by HHSC.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 4900 North Lamar Boulevard, Austin, Texas 78751; or e-mailed to HHSRulesCoordinationOffice@hhsc.state.tx.us.

To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday. Therefore, comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) e-mailed by midnight on the last day of the comment period. When e-mailing comments, please indicate "Comments on Proposed Rule 40R013" in the subject line.

SUBCHAPTER A. INTRODUCTION

40 TAC §42.103

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendment implements Texas Government Code, §531.0055, §531.021, and Texas Human Resources Code, §32.021.

§42.103.Definitions.

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

(1) Abuse--

(A) physical abuse;

(B) sexual abuse; or

(C) verbal or emotional abuse.

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

(A) interactions with the individual;

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

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

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

(4) [(3)] Adaptive aid--An item or service (including a medically necessary supply or device) that enables an individual to retain or increase the ability to:

(A) perform activities of daily living; or

(B) perceive, control, or communicate with the environment in which the individual lives.

(5) [(4)] Adaptive behavior--The effectiveness with or degree to which an individual meets the standards of personal independence and social responsibility expected of the individual's age and cultural group as assessed by a standardized measure.

(6) [(5)] Adaptive behavior level--The categorization of an individual's functioning level based on a standardized measure of adaptive behavior. There are four adaptive behavior [Four] levels [are used] ranging from mild limitations in adaptive skills (I) through profound limitations in adaptive skills (IV).

(7) [(6)] Adaptive behavior screening assessment--A standardized assessment used to determine an individual's adaptive behavior level, and conducted using the current version of one of the following assessment instruments:

(A) American Association of Intellectual and Developmental Disabilities (AAIDD) Adaptive Behavior Scales (ABS);

(B) Inventory for Client and Agency Planning (ICAP);

(C) Scales of Independent Behavior[--Revised (SIB-R)]; or

(D) Vineland Adaptive Behavior Scales[, Second Edition (Vineland-II)].

(8) [(7)] Alarm call--A signal transmitted from an individual's CFC ERS equipment to the CFC ERS response center indicating that the individual needs immediate assistance.

(9) [(8)] ALF--Assisted living facility. An entity required to be licensed under THSC [the Texas Health and Safety Code, (THSC)], Chapter 247, Assisted Living Facilities.

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

(11) [(9)] Behavioral emergency--A situation in which an individual is acting in an aggressive, destructive, violent, or self-injurious manner that poses a risk of death or serious bodily harm to the individual or others.

(12) [(10)] Behavioral support--Formerly referred to as "behavior communication," a service that provides specialized interventions that assist an individual to increase adaptive behaviors to replace or modify challenging or socially unacceptable behaviors that prevent or interfere with the individual's inclusion in home and family life or community life, with a particular emphasis on communication as it affects behavior.

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

(14) [(12)] Calendar day--Any day, including weekends and holidays.

(15) [(13)] Case management--Services that assist an individual to gain access to needed waiver and other state plan services, as well as needed medical, social, education, and other services, regardless of the funding source for the services.

(16) [(14)] Case manager--A service provider who is responsible for the overall coordination and monitoring of DBMD Program services and CFC services provided to an individual.

(17) [(15)] CDS option--Consumer directed services option. A service delivery option as defined in §41.103 of this title (relating to Definitions).

(18) 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.

(19) [(16)] CFC--Community First Choice.

(20) [(17)] CFC ERS--CFC emergency response services. 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.

(21) [(18)] 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.

(22) [(19)] CFC FMS--The term used for FMS on the IPC of an individual if the individual receives only CFC PAS/HAB through the CDS option.

(23) [(20)] CFC PAS/HAB--CFC personal assistance services/habilitation. A service:

(A) that consists of:

(i) personal assistance services that provide assistance to an individual in performing activities of daily living and instrumental activities of daily living 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 in 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 provides assistance to 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.

(24) [(21)] CFC support consultation--The term used for support consultation on the IPC of an individual if the individual receives only CFC PAS/HAB through the CDS option.

(25) [(22)] CFC support management--Training regarding how to select, manage, and dismiss an unlicensed service provider of CFC PAS/HAB, as described in the DBMD Provider Manual.

(26) [(23)] Chore services--Services, other than CFC PAS/HAB household chores, needed to maintain a clean, sanitary, and safe environment in an individual's home that consist of heavy household chores, such as washing floors, windows and walls, securing loose rugs and tiles, and moving heavy items or furniture.

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

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

(29) [(26)] Contract--A provisional contract that HHSC [DADS] enters into in accordance with §49.208 of this chapter (relating to Provisional Contract Application Approval) that has a stated expiration date or a standard contract that HHSC [DADS] enters into in accordance with §49.209 of this chapter (relating to Standard Contract) that does not have a stated expiration date.

(30) 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;

(C) is a partner in a partnership 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.

(31) [(27)] DADS--HHSC [The Department of Aging and Disability Services].

(32) [(28)] DAHS--Day Activity and Health Services. Day activity and health services as defined in §98.2 of this title (relating to Definitions).

(33) [(29)] DBMD Program--The Deaf Blind with Multiple Disabilities Waiver Program.

(34) [(30)] DBMD Program specialist--An HHSC employee [Employee in DADS state office] who is the primary contact for the DBMD Program.

(35) [(31)] Deafblindness--A chronic condition in which a person:

(A) has deafness, which is a hearing impairment severe enough that most speech cannot be understood with amplification; and

(B) has legal blindness, which results from a central visual acuity of 20/200 or less in the person's better eye, with correction, or a visual field of 20 degrees or less.

(36) [(32)] Denial--An HHSC [A DADS] action that disallows:

(A) an individual's request for enrollment in the DBMD Program;

(B) a DBMD Program service or a CFC service requested on an IPC that was not authorized on the prior IPC; or

(C) a portion of the amount or level of a DBMD Program service or a CFC service requested on an IPC that was not authorized on the prior IPC.

(37) [(33)] Dental treatment--A service that provides the following services, as described in Appendix C of the DBMD Program waiver application available on the HHSC website [(found on the DBMD Program page of DADS website at www.dads.state.tx.us)]:

(A) therapeutic, orthodontic, routine preventive, and emergency treatment; and

(B) sedation.

(38) [(34)] Developmental disability--As defined in the Developmental Disabilities Assistance and Bill of Rights Act of 2000, Section 102(8), a severe, chronic disability of an individual five years of age or older that:

(A) is attributable to a mental or physical impairment or combination of mental and physical impairments;

(B) is manifested before the individual attains 22 years of age;

(C) is likely to continue indefinitely;

(D) results in substantial functional limitations in three or more of the following areas of major life activity:

(i) self-care;

(ii) receptive and expressive language;

(iii) learning;

(iv) mobility;

(v) self-direction;

(vi) capacity for independent living; and

(vii) economic self-sufficiency.

(39) [(35)] DFPS--Department of Family and Protective Services.

(40) [(36)] Dietary services--A therapy service that:

(A) assists an individual to meet basic or special therapeutic nutritional needs through the development of individual meal plans; and

(B) is provided by a person licensed in accordance with Texas Occupations Code, Chapter 701, Dieticians.

(41) [(37)] Employment assistance--Assistance provided to an individual to help the individual locate competitive employment in the community.

(42) 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.

(43) [(38)] FMS--Financial management services. Services, as defined in §41.103 of this title provided to an individual participating in the CDS option.

(44) [(39)] FMSA--Financial management services agency. An entity, as defined in §41.103 of this title, that provides FMS to an individual participating in the CDS option.

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

(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.

(46) [(41)] Functions as a person with deafblindness--Situation in which a person is determined:

(A) to have a progressive medical condition, manifested before 22 years of age, that will result in the person having deafblindness; or

(B) before attaining 22 years of age, to have limited hearing or vision due to protracted inadequate use of either or both of these senses.

(47) [(42)] Good cause--As determined by HHSC [DADS], a reason outside the control of the CFC ERS provider.

(48) [(43)] HCSSA (Home and community support services agency)--An entity required to be licensed under THSC, Chapter 142, Home and Community Support Services.

(49) [(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 an 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.

(50) [(45)] HHSC--The Texas Health and Human Services Commission.

(51) [(46)] Instrumental activities of daily living. 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.

(52) [(47)] ICF/IID--Intermediate care facility for individuals with an intellectual disability or related conditions. An ICF/IID is a facility in which ICF/IID Program services are provided and that is:

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

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

(53) [(48)] ICF/IID Program--The Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions Program that provides Medicaid-funded residential services to individuals with an intellectual disability or related conditions.

(54) [(49)] ID/RC Assessment [(Intellectual Disability/Related Condition Assessment)]--Intellectual Disability/Related Conditions Assessment. A form used by HHSC [An assessment conducted] to determine if an individual meets the requirements described in §42.201(a)(2) and (3) of this chapter (relating to Eligibility Criteria for DBMD Program Services and CFC Services) [diagnostic eligibility criteria for the DBMD Program].

(55) [(50)] Impairment to independent functioning--An adaptive behavior level of II, III, or IV.

(56) [(51)] Individual--A person seeking to enroll or who is enrolled in the DBMD Program.

(57) [(52)] Institutional services--Services provided in an ICF/IID or a nursing facility.

(58) [(53)] Intellectual disability--Significant sub-average general intellectual functioning existing concurrently with deficits in adaptive behavior and originating during the developmental period.

(59) [(54)] Intervener--A service provider with specialized training and skills in deafblindness who, working with one individual at a time, serves as a facilitator to involve an individual in home and community services and activities, and who is classified as an "Intervener", "Intervener I", "Intervener II", or "Intervener III" in accordance with Texas Government Code, §531.0973.

(60) [(55)] IPC--Individual Plan of Care. A written plan developed by an individual's service planning team using person-centered planning and documented on an HHSC [a DADS] form that:

(A) meets:

(i) the criteria in §42.201(a)(4) [§42.201(a)(5) ] of this chapter [(relating to Eligibility Criteria for DBMD Program Services and CFC Services)]; and

(ii) the requirements described in §42.214(a)(1) and (b)(1) - (6) of this chapter (relating to Development of Enrollment Individual Plan of Care (IPC)); and

(B) is authorized by HHSC [DADS] in accordance with Subchapter B of this chapter (relating to Eligibility, Enrollment, and Review).

(61) [(56)] IPP--Individual Program Plan. A written plan documented on an HHSC [a DADS] form and completed by an individual's case manager that describes the goals and outcomes [objectives] for each DBMD Program service and CFC service, other than CFC support management, included on the individual's IPC.

(62) [(57)] IPC period--The effective period of an IPC as follows:

(A) for an enrollment IPC, the period of time from the effective date of the enrollment IPC [service] approved by HHSC [DADS] until the first calendar day of the same month of the effective date [of service] in the following year; and

(B) for a renewal IPC, a 12-month period of time starting on the effective date of a renewal IPC.

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

(64) [(59)] Licensed assisted living--A service provided by a program provider in an assisted living facility that is: [a residence]

(A) licensed in accordance with Chapter 92 of this title (relating to Licensing Standards for Assisted Living Facilities) for four to six individuals; and[.]

(B) owned by the program provider.

(65) [(60)] Licensed home health assisted living--A service provided by a program provider licensed in accordance with Chapter 97 of this title (relating to Licensing Standards for Home and Community Support Services Agencies) in a residence for no more than three individuals, at least one of whom owns or leases the residence.

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

(67) [(61)] LVN--Licensed vocational nurse. A person licensed to provide vocational nursing in accordance with Texas Occupations Code, Chapter 301, Nurses.

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

(69) [(63)] MAO Medicaid--Medical Assistance Only Medicaid. A type of Medicaid by which an individual qualifies financially for Medicaid assistance but does not receive Supplemental Security Income (SSI) benefits.

(70) [(64)] 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. The term does not include a protective device.

(71) [(65)] Medicaid--A program funded jointly by the states and the federal government that provides medical benefits to groups of low-income people, some who may have no medical insurance or inadequate medical insurance.

(72) [(66)] Medicaid waiver program--A service delivery model authorized under §1915(c) of the Social Security Act in which certain Medicaid statutory provisions are waived by CMS.

(73) MESAV--Medicaid Eligibility Service Authorization Verification. The automated system that contains information regarding an individual's Medicaid eligibility and service authorizations.

(74) 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.

(75) [(67)] Military member--A member of the United States military serving in the Army, Navy, Air Force, Marine Corps, or Coast Guard 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.

[(68) 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.]

(76) [(69)] Minor home modifications--Physical adaptation to an individual's residence necessary to address the individual's specific needs and enable the individual to function with greater independence or control the residence's environment.

(77) [(70)] Natural supports--Unpaid persons, including family members, volunteers, neighbors, and friends, who assist and sustain an individual.

(78) 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.

(79) [(71)] Nursing--Treatments and health care procedures provided by an RN or LVN that are:

(A) ordered by a physician; and

(B) provided in compliance with:

(i) Texas Occupations Code, Chapter 301, Nurses; and

(ii) rules at Texas Board of Nursing at Texas Administrative Code (TAC), Title 22, Part 11, Texas Board of Nursing.

(80) [(72)] Nursing facility--A facility that is licensed in accordance with the Texas Health and Safety Code, Chapter 242.

(81) [(73)] Occupational therapy--Services that:

(A) address physical, cognitive, psychosocial, sensory, and other aspects of performance to support an individual's engagement in everyday life activities that affect health, wellbeing, and quality of life; and

(B) are provided by a person licensed in accordance with Texas Occupations Code, Chapter 454, Occupational Therapists.

(82) [(74)] Orientation and mobility--Service that assists an individual to acquire independent travel skills that enable the individual to negotiate safely and efficiently between locations at home, school, work, and in the community.

(83) [(75)] Person-centered planning--A process that empowers the individual (and the LAR on the individual's behalf) to direct the development of an IPC that meets the individual's outcomes. The process:

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

(B) identifies natural supports available to the individual and negotiates needed services and supports;

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

(D) accommodates the individual's style of interaction and preferences regarding time and setting.

(84) [(76)] Personal funds--The funds that belong to an individual, including earned income, social security benefits, gifts, and inheritances.

(85) [(77)] Personal leave day--A continuous 24-hour period, measured from midnight to midnight, when an individual who resides in a residence in which licensed assisted living or licensed home health assisted living is provided is absent from the residence for personal reasons.

(86) 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 not in compliance with federal and state laws, rules, and regulations; or

(D) seclusion.

(87) [(78)] 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.

(88) [(79)] Physical therapy--Services that:

(A) prevent, identify, correct, or alleviate acute or prolonged movement dysfunction or pain of anatomic or physiologic origin; and

(B) are provided by a person licensed in accordance with Texas Occupations Code, Chapter 453, Physical Therapists.

(89) [(80)] Physician--As defined in §97.2 of this title (relating to Definitions), a person who is:

(A) licensed in Texas to practice medicine or osteopathy in accordance with Texas Occupations Code, Chapter 155;

(B) licensed in Arkansas, Louisiana, New Mexico, or Oklahoma to practice medicine, who is the treating physician of a client and orders home health or hospice services for the client, in accordance with the Texas Occupations Code, §151.056(b)(4); or

(C) a commissioned or contract physician or surgeon who serves in the United States uniformed services or Public Health Service if the person is not engaged in private practice, in accordance with the Texas Occupations Code, §151.052(a)(8).

(90) [(81)] Program provider--A person, as defined in §49.102 of this title (relating to Definitions), that has a contract with HHSC [DADS] to provide DBMD Program services, excluding an FMSA.

(91) [(82)] Protective device--An item or device, such as a safety vest, lap belt, bed rail, safety padding, adaptation to furniture, or helmet, if:

(A) used only:

(i) to protect an individual from injury; or

(ii) for body positioning of the individual to ensure health and safety; and

(B) not used to modify or control behavior.

[(83) Psychoactive medication 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.]

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

(93) [(85)] Reduction--An HHSC [A DADS] action taken as a result of a review of a revision or renewal IPC that decreases the amount or level of a service authorized by HHSC [DADS] on the prior IPC.

(94) [(86)] Related condition--As defined in the Code of Federal Regulations (CFR), Title 42, §435.1010, 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 22 years of age;

(C) is likely to continue indefinitely; and

(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.

(95) [(87)] Respite--Services provided on a short-term basis to an individual because of the absence or need for relief of an individual's unpaid caregiver.

(96) [(88)] Responder--A person designated to respond to an alarm call activated by an individual.

(97) [(89)] Restraint--Any of the following:

(A) a physical restraint;

(B) a mechanical restraint; or

(C) a chemical [psychoactive medication] restraint.

(98) [(90)] Restrictive intervention--An action or procedure that limits an individual's movement, access to other individuals, locations or activities, or restricts an individual's rights, including a restraint, a protective device, and seclusion.

(99) [(91)] RN--Registered nurse. A person licensed to provide professional nursing in accordance with Texas Occupations Code, Chapter 301, Nurses.

(100) [(92)] Seclusion--A restrictive intervention that is the involuntary placement [separation ] of an individual alone [away from other individuals ] in an area from which [that] the individual is prevented from leaving.

(101) [(93)] Service planning team--A team convened and facilitated by a DBMD Program case manager for the purpose of developing, reviewing, and revising an individual's IPC. The team consists of:

(A) the individual;

(B) if applicable, the individual's LAR or an actively involved person;

(C) the DBMD Program case manager;

(D) except as described in subparagraph (E) of this paragraph, the program director or a RN designated by the program provider;

(E) if the DBMD Program case manager and program director are the same person, a RN designated by the program provider, in addition to the DBMD Program case manager;

(F) other persons whose inclusion is requested by the individual, LAR, or actively involved person; and

(G) other persons selected by the program provider who are:

(i) professionally qualified by certification or licensure and have special training and experience in the diagnosis and habilitation of persons with the individual's related condition; or

(ii) directly involved in the delivery of services and supports to the individual.

(102) [(94)] Service provider--A person who provides a DBMD Program service or a CFC service directly to an individual and who is an employee or contractor of a program provider.

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

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

(105) 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.

(106) [(95)] Significant [Significantly] subaverage general intellectual functioning--Consistent with THSC, §591.003, measured intelligence on standardized general intelligence tests of two or more standard deviations (not including standard error of measurement adjustments) below the age-group mean for the tests used.

(107) [(96)] Speech, language, audiology therapy--Services that:

(A) address the development and disorders of communication, including speech, voice, language, oral pharyngeal function, or cognitive processes; and

(B) are provided by a person licensed in accordance with Texas Occupations Code, Chapter 401, Speech-Language Pathologists and Audiologists.

(108) [(97)] Specialized nursing--Nursing provided to an individual who has a tracheostomy or is dependent on a ventilator.

(109) Staff person--A full-time or part-time employee of a program provider, other than a service provider.

(110) [(98)] SSA--Social Security Administration.

(111) [(99)] SSI--Supplemental Security Income.

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

(113) [(101)] Support consultation--A service, as defined in §41.103 of this title, that may be chosen by an individual who chooses to participate in the CDS option.

(114) [(102)] Supported employment--Assistance provided, in order to sustain competitive employment, to an individual who, because of a disability, requires intensive, ongoing support to be self-employed, work from home, or perform in a work setting at which individuals without disabilities are employed.

(115) [(103)] 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.

(116) [(104)] TAC--Texas Administrative Code.

(117) [(105)] TAS--Transition Assistance Services. Services provided to a Medicaid-eligible person receiving institutional services in Texas to assist with setting up a household when transitioning from institutional services into the DBMD Program.

(118) THSC--Texas Health and Safety Code.

(119) [(106)] TMHP--Texas Medicaid & Healthcare Partnership. The Texas Medicaid program claims administrator.

(120) [(107)] Transfer--The movement of an individual from a DBMD Program provider or a FMSA to a different DBMD Program provider or FMSA.

(121) [(108)] Transportation plan--A written plan, based on person-centered planning and developed with an applicant or individual using the HHSC [DADS] Individual Transportation Plan form found on the HHSC website [at www.dads.state.tx.us]. A transportation plan is used to document how transportation will be delivered to support an individual's desired goals and objectives for transportation identified in the IPP.

(122) [(109)] Trust fund account--An account at a financial institution that contains an individual's personal funds and is under the program provider's control.

(123) 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.

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

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900457

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-2622


SUBCHAPTER B. ELIGIBILITY, ENROLLMENT, AND REVIEW

DIVISION 1. ELIGIBILITY

40 TAC §42.201

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendment implements Texas Government Code, §531.0055, §531.021, and Texas Human Resources Code, §32.021.

§42.201.Eligibility Criteria for DBMD Program Services and CFC Services.

(a) An individual is eligible for DBMD Program services if:

(1) the individual meets the financial eligibility criteria as described in Appendix B of the DBMD Program waiver application approved by CMS and found on the HHSC website [at www.dads.state.tx.us];

(2) the individual is determined by HHSC [DADS] to meet the LOC VIII [diagnostic eligibility] criteria described in §9.239 of this title (relating to ICF/MR Level of Care VIII Criteria);

(3) the individual, as documented on an ID/RC Assessment [form]:

(A) has one or more diagnosed related conditions and, as a result:

(i) has deafblindness;

(ii) has been determined to have a progressive medical condition that will result in deafblindness; or

(iii) functions as a person with deafblindness; and

(B) has one or more additional disabilities that result in impairment to independent functioning;

[(4) the individual's related conditions, as described in paragraph (3)(A) of this section, manifested before the individual became 22 years of age;]

(4) [(5)] the individual has an IPC with a cost for DBMD Program services at or below $114,736.07;

(5) [(6)] the individual is not enrolled in another waiver program or receiving a service that may not be received if the individual is enrolled in the DBMD Program, as identified in the Mutually Exclusive Services table in Appendix V of the DBMD Provider Manual [available atwww.dads.state.tx.us];

(6) [(7)] the individual does not reside in:

(A) an ICF/IID;

(B) a nursing facility licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 242, Convalescent and Nursing Facilities [Homes] and related Institutions;

(C) an ALF, unless it provides licensed assisted living in the DBMD Program;

(D) a residential child-care operation licensed or subject to being licensed by DFPS unless it is a foster family home or a foster group home;

(E) a facility licensed or subject to being licensed by the Department of State Health Services (DSHS);

(F) a residential facility operated by the Texas Youth Commission; or

(G) a jail or prison;

(7) [(8)] at least one program provider is willing to provide DBMD Program services to the individual;

(8) [(9)] the individual resides or moves to reside in a county served by a program provider; and

(9) [(10)] the individual requires the provision of:

(A) at least one DBMD Program Service per month or monthly monitoring; and

(B) at least one DBMD Program Service during an IPC period.

(b) Except as provided in subsection (c) of this section, an individual is eligible for a CFC service under this chapter if the individual:

(1) meets the criteria described in subsection (a) of this section;

(2) requires the provision of the CFC service; and

(3) is not receiving licensed assisted living or licensed home health assisted living.

(c) To be eligible for a CFC service under this chapter, an [An] individual receiving MAO Medicaid must, in addition to meeting the eligibility criteria described in subsection (b) of this section, receive a DBMD Program service at least monthly, as required by 42 CFR §441.510(d).

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900458

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-2622


DIVISION 2. ENROLLMENT PROCESS

40 TAC §§42.211, 42.212, 42.216

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendments implement Texas Government Code, §531.0055, §531.021, and Texas Human Resources Code, §32.021.

§42.211.Written Offer of Enrollment in the DBMD Program [Services].

(a) HHSC [DADS] sends a written offer of enrollment in the DBMD Program [services] to:

(1) the individual whose interest list request date, assigned in accordance with §42.202(c)(2) of this subchapter (relating to DBMD Interest List), is earliest on the DBMD interest list, unless the individual is a military family member living outside of Texas; or

(2) an individual who is residing in a nursing facility and requesting enrollment in the DBMD Program [services].

(b) HHSC [DADS] encloses with the written offer:

(1) a list of DBMD program providers;

(2) a Documentation of Provider Choice form;

(3) in accordance with 1 TAC §351.15 (relating to Information Regarding Community-based Services), a document explaining other currently available community-based long-term support options that might be appropriate to the individual's needs; and

(4) an Applicant Acknowledgement form.

(c) The individual or LAR accepts the [DADS ] offer of enrollment in the DBMD Program [services ] by:

(1) selecting a program provider from the enclosed list and designating the selection on the Documentation of Provider Choice form; and

(2) ensuring the completed Documentation of Provider Choice form and Applicant Acknowledgement form are submitted to HHSC [DADS] and postmarked or faxed no later than 60 calendar days after the date on the offer letter.

(d) Upon timely receipt of a Documentation of Provider Choice form and Applicant Acknowledgement form completed by the individual or LAR, HHSC [DADS] notifies the program provider designated by the individual or LAR.

(e) HHSC [DADS] withdraws an offer of enrollment in the DBMD Program [services] made to an individual if:

(1) the completed Documentation of Provider Choice form and Applicant Acknowledgement form are postmarked or faxed more than 60 calendar days after the date on the offer letter;

(2) the individual or LAR declines the offer of enrollment in the DBMD Program [services];

(3) the individual or LAR does not complete the enrollment process as described in §42.212 of this division (relating to Process for Enrollment of an Individual); or

(4) the individual was offered enrollment in the DBMD Program [services] while the individual was residing in a nursing facility, but was discharged from the nursing facility before the effective date of the enrollment IPC.

§42.212.Process for Enrollment of an Individual.

(a) A program provider, after notification by HHSC [DADS] that an individual designated the program provider on a completed Documentation of Provider Choice form, must assign a case manager to the individual.

(b) The program provider must ensure that the assigned case manager contacts the individual or LAR within five business days after the program provider receives the HHSC [DADS] notification. During the initial contact, the case manager must:

(1) verify that the individual resides in a county for which the program provider has a contract;

(2) determine if the individual is currently enrolled in Medicaid;

(3) determine if the individual is currently enrolled in another waiver program or receiving a service that may not be received if the individual is enrolled in the DBMD Program, as identified in the Mutually Exclusive Services table in Appendix V of the DBMD Provider Manual available on the HHSC website [at www.dads.state.tx.us]; and

(4) arrange with the individual and LAR for an initial face-to-face, in-home visit to occur as soon as possible but no later than 30 calendar days after the program provider receives the HHSC [DADS] notification.

(c) During the initial face-to-face, in-home visit, the case manager must:

(1) provide an oral and written explanation to the individual or LAR [of]:

(A) of the DBMD Program services described in §42.104(d) of this chapter (relating to Description of Deaf Blind with Multiple Disabilities (DBMD) Waiver Program and CFC), including TAS if the individual is receiving institutional services;

(B) of the CFC services described in §42.104(f) of this chapter;

(C) of the eligibility requirements for:

(i) DBMD Program services as described in §42.201(a) of this subchapter (relating to Eligibility Criteria for DBMD Program Services and CFC Services);

(ii) CFC services as described in §42.201(b) of this subchapter to individuals who do not receive MAO Medicaid; and

(iii) CFC services as described in §42.201(c) of this subchapter to individuals who receive MAO Medicaid;

(D) of the reasons DBMD Program services and CFC services may be terminated as described in §§42.244 - 42.247 of this chapter (relating to Termination of DBMD Program Services and CFC Services With Advance Notice Due to Ineligibility or Leave from the State, Termination of DBMD Program Services and CFC Services With Advance Notice Due to Non-compliance with Mandatory Participation Requirements, Termination of DBMD Program Services and CFC Services Without Advance Notice, and Termination of DBMD Program Services and CFC Services Without Advance Notice Due to Behavior Causing Immediate Jeopardy;

(E) of the individual's rights and responsibilities, including the right to request a Medicaid Fair Hearing as described in §42.251 of this chapter (relating to Individual's Right to a Fair Hearing);

(F) of the mandatory participation requirements as described in §42.252 of this chapter (relating to Mandatory Participation Requirements of an Individual);

(G) of the procedures for an individual or LAR to file a complaint regarding a DBMD Program provider as required by §49.309 of this title (relating to Complaint Process) and that the HHSC Consumer Rights and Services toll-free telephone number at 1-800-458-9858 may be used to file a complaint;

(H) of the CDS option as described in §42.217 of this division [chapter] (relating to Consumer Directed Services (CDS) Option);

(I) of the voter registration process, if the individual is 18 years of age or older;

(J) of how to contact the program provider, the case manager, and the RN;

(K) that the individual or LAR may request the provision of residential habilitation, case management, nursing, out-of-home respite in a camp, adaptive aids, intervener services, or CFC PAS/HAB while the individual is temporarily staying at a location outside the contracted service delivery area but within the state of Texas during a period of no more than 60 consecutive days; and

(L) that the individual or LAR may report [procedures for reporting] an allegation of abuse, neglect, and exploitation to DFPS by calling the toll-free telephone number at 1-800-252-5400;

(2) educate the individual and LAR about protecting the individual from abuse, neglect, and exploitation;

(3) [(2)] if possible:

(A) complete an adaptive behavior screening assessment or ensure an appropriate professional completes the adaptive behavior screening assessment; [and]

(B) complete a Related Conditions Eligibility Screening Instrument or ensure an RN completes a Related Conditions Eligibility Screening Instrument; and

(C) [(B)] ensure an RN completes a nursing assessment using the HHSC [DADS] CLASS/DBMD Nursing Assessment form;

(4) [(3)] complete the ID/RC Assessment form; and

(5) [(4)] obtain the signature of the individual or LAR on [:]

[(A)] the Waiver Program Verification of Freedom of Choice form documenting [designating] the individual's or LAR's choice of [regarding enrollment in] the DBMD Program over [enrollment in] the ICF/IID Program. [; and]

[(B) DADS Release of Information Consent form or a similar form developed by the program provider.]

(d) If any [one or both] of the assessments described in subsection (c)(3)(A) - (C) [(c)(2) ] of this section is not completed during the initial face-to-face, in-home visit, the case manager must ensure that the assessment is completed within 10 business days after the date of the initial face-to-face, in-home visit.

(e) If an individual is Medicaid eligible, is receiving institutional services, and anticipates needing TAS, the case manager must determine whether the individual meets the following criteria:

(1) the individual is being discharged from a nursing facility or an ICF/IID;

(2) the individual has not previously received TAS as described in §62.5(e) of this title (relating to Service Description);

(3) the individual's proposed enrollment IPC does not include licensed assisted living or licensed home health assisted living; and

(4) the individual anticipates needing TAS as described in §62.5(e) of this title.

(f) If the case manager determines that an individual meets the criteria described in subsection (e) of this section, the case manager must:

(1) provide the individual or LAR with a list of TAS providers in the service delivery area in which the individual will reside;

(2) complete, with the individual or LAR, the Transition Assistance Services (TAS) Assessment and Authorization form found on the HHSC website [at www.dads.state.tx.us] in accordance with the form's instructions, which includes:

(A) identifying the TAS the individual needs as described in §62.5(e) of this title; and

(B) estimating the monetary amount for each TAS identified, which must be within the service limit described in §62.5(d) of this title;

(3) submit the completed form to HHSC [DADS ] for authorization;

(4) send the form authorized by HHSC [DADS ] to the selected TAS provider; and

(5) include the TAS and the monetary amount authorized by HHSC [DADS] on the individual's enrollment IPC as described in §42.214 of this division [chapter ] (relating to Development of Enrollment Individual Plan of Care (IPC)).

(g) The program provider must:

(1) gather and maintain the information necessary to process the individual's request for enrollment in the DBMD Program using forms prescribed by HHSC [DADS] in the DBMD Provider Manual;

(2) assist the individual who does not have Medicaid financial eligibility or the individual's LAR to:

(A) complete an application for Medicaid financial eligibility; and

(B) submit the completed application to HHSC within 30 calendar days after the case manager's initial face-to-face, in-home visit;

(3) document in the individual's record any problems or barriers the individual or LAR encounters that may inhibit progress towards completing:

(A) the application for Medicaid financial eligibility; and

(B) enrollment in the DBMD Program [services]; and

(4) assist the individual or LAR to overcome problems or barriers documented as described in paragraph (3) of this subsection.

(h) If an individual or LAR does not submit a completed Medicaid application to HHSC as described in subsection (g)(2)(B) of this section as a result of problems or barriers documented in accordance with subsection (g)(3) of this section but is making progress in collecting the documentation necessary for an application, the program provider may grant one or more 30 calendar day extensions.

(1) The program provider must ensure the case manager documents the rationale for an extension in the individual's record.

(2) The program provider must not issue an extension that will cause the period of Medicaid application preparation to exceed 12 months after the date of the case manager's initial face-to-face, in-home visit.

(3) The program provider must notify a [DADS ] DBMD program specialist in writing if the individual or LAR:

(A) fails to submit a completed Medicaid application to HHSC within 12 months after the date of the case manager's initial face-to-face, in-home visit; or

(B) does not cooperate with the case manager in completing the enrollment process described in this section.

(i) A program provider must ensure that:

(1) the related conditions documented on the ID/RC Assessment form for the individual are on the HHSC [DADS] Approved Diagnostic Codes for Persons with Related Conditions list contained in the DBMD Provider Manual;

(2) the ID/RC Assessment is submitted to a physician for review; and

(3) if the individual or LAR requests dental services other than an initial dental exam, a dentist completes the HHSC [the DADS] Prior Authorization for Dental Services form [is sent to a dentist as described in the DBMD Provider Manual if the individual or LAR requests dental services other than an initial dental exam].

(j) After receiving the signed and dated ID/RC Assessment from the physician establishing that the individual meets the requirements [eligibility criteria] described in §42.201(a)(2) and (3) [§42.201(a)(3) and (4)] of this subchapter, the case manager must:

(1) convene a service planning team meeting within 10 business days after receipt of the signed and dated ID/RC Assessment; and

(2) if an HHSC [a DADS] Prior Authorization for Dental Services form was completed by [submitted to] a dentist as described in subsection (i)(3) of this section, ensure that the [signed and] completed form is available for the service planning team to review.

(k) During the service planning team meeting, the case manager must ensure:

(1) the service planning team:

(A) reviews the CLASS/DBMD Nursing Assessment form completed by the RN;

(B) addresses any information included in Addendum E of the CLASS/DBMD Nursing Assessment form, Recommendations/Coordination of Care, to ensure the individual's needs are met; and

(C) documents on the CLASS/DBMD Coordination of Care form how the information in Addendum E was addressed; and

[(1) if the individual or LAR is requesting dental services other than an initial dental exam, the DADS Prior Authorization for Dental Services form has been signed by the dentist as described in §42.624(b) of this chapter (relating to Dental Treatment);]

(2) an enrollment IPC is developed as described in §42.214 of this division and, if the enrollment IPC: [chapter; and]

(A) includes transportation as a residential habilitation activity or as an adaptive aid, that the service planning team develops a transportation plan; or

(B) includes residential habilitation, nursing, specialized nursing, or CFC PAS/HAB, that the service planning team develops a service backup plan if required by §42.407 of this chapter (relating to Service Backup Plans).

[(3) if:]

[(A) the enrollment IPC includes transportation as a residential habilitation activity or as an adaptive aid, the service planning team develops a transportation plan; and or]

[(B) the enrollment IPC includes residential habilitation, nursing, specialized nursing, or CFC PAS/HAB:]

[(i) the service planning team determines whether the individual requires a service backup plan in accordance with §42.407 of this chapter (relating to Service Backup Plans); and]

[(ii) that a service backup plan is developed if needed.]

(l) Within ten business days after the service planning team meeting, the case manager must:

(1) complete an enrollment IPP [Individual Program Plan (IPP)] as described in §42.215 of this division [chapter] (relating to Development of Enrollment Individual Program Plan (IPP));

(2) submit a request for enrollment to HHSC [DADS] for review as described in §42.216 of this division [chapter] (relating to HHSC's [DADS] Review of Request for Enrollment) that includes the following:

(A) a copy of the completed enrollment IPC;

(B) a copy of the ID/RC Assessment [form] signed by a physician;

(C) a copy of the completed enrollment IPP;

(D) a copy of the adaptive behavior screening assessment;

(E) a copy of the Related Conditions Eligibility Screening Instrument form;

(F) a copy of the HHSC DBMD Summary of Services Delivered form that documents pre-assessment services, [(for pre-assessment services)] with supporting documentation;

(G) a copy of the Waiver Program Verification of Freedom of Choice[, Waiver Program] form;

(H) a copy of the Non-Waiver Services form;

(I) a copy of the Documentation of Provider Choice form;

(J) a copy of the HHSC [DADS] CLASS/DBMD Nursing Assessment form; [and]

[(K) if applicable:]

(K) [(i)] a Prior Authorization for Dental Services form, if required by §42.624 of this chapter (relating to Dental Treatment);

(L) [(ii)] a Rationale for Adaptive Aids, Medical Supplies, and Minor Home Modifications form, if required by §42.602 of this chapter (relating to Requirements For Authorization to Purchase or Lease an Adaptive Aid), §42.613 of this chapter (relating to Requesting Authorization to Purchase a Minor Home Modification that Costs Less than $1,000), or §42.614 of this chapter (relating to Requesting Authorization to Purchase a Minor Home Modification that Costs $1,000 or More);

(M) [(iii)] a Provider Agency Model Service Backup Plan form, if required by §42.407 of this chapter;

(N) [(iv)] a Specialized Nursing Certification form, if required by §42.628 of this chapter (relating to Nursing);

(O) [(v)] copies of letters of denial from non-waiver resources, if any;

(P) [(vi)] a Transition Assistance Services (TAS) [TAS] Assessment and Authorization form, if required by subsection (f)(2) of this section; and

(Q) [(vii)] a copy of the transportation plan, if required by subsection (k)(2)(A) of this section; and[;]

(3) if the individual will receive a service through the CDS option, send a copy of the proposed enrollment IPC, the enrollment IPP, and if completed, the transportation plan to the FMSA.[; and]

[(4) keep the original ID/RC Assessment, signed by a physician, in the individual's record.]

(m) Within five business days after receiving a written notice from HHSC [DADS] approving or denying the individual's request for enrollment, the program provider must notify the individual or LAR of HHSC's [DADS] decision. If HHSC [DADS]:

(1) approves the request for enrollment, the program provider must initiate DBMD Program services and CFC services as described on the IPC; or

(2) denies the request for enrollment, the program provider must send the individual or LAR a copy of HHSC's [DADS] written notice of denial.

(n) The program provider must not provide DBMD Program services or CFC services to an individual until notified by HHSC [DADS] that the individual's request for enrollment is approved. If a program provider provides DBMD Program services or CFC services to an individual before the effective date of service approved by HHSC, HHSC [DADS, DADS] does not reimburse the program provider for those services.

(o) If HHSC notifies a program provider that an [Within ten business days after receiving a written notice from DADS approving the] individual's request for enrollment is approved , the case manager [program provider] must comply with §42.216(d)(2) of this subchapter (relating to HHSC's Review of Request for Enrollment) [provide to the individual or LAR a copy of the approved enrollment IPC and IPP, and if a service backup plan is needed, a copy of the service backup plan].

§42.216.HHSC's [DADS] Review of Request for Enrollment.

(a) HHSC [DADS] reviews a request for enrollment submitted by a case manager in accordance with §42.212(l)(2) of this division (relating to Process for Enrollment of an Individual) to determine if:

(1) the individual meets the requirements [diagnostic eligibility criteria] described in §42.201(a)(2) and (3) [§42.201(a)(2) - (4)] of this subchapter (relating to Eligibility Criteria for DBMD Program Services and CFC Services);

(2) the cost of the enrollment IPC meets the requirement [criteria] described in §42.201(a)(4) [§42.201(a)(5)] of this subchapter;

(3) the DBMD Program services and CFC services, except for CFC support management, specified in the enrollment IPC meet the requirements described in §42.214(a)(1) and (b)(1) - (6) of this division (relating to Development of Enrollment Individual Plan of Care (IPC)); [and]

(4) the goals and objectives described in the IPP for each DBMD Program service and CFC service, except for CFC support management, in the IPC meet the criteria described in §42.215(2)(A) - (D) of this division (relating to Development of Enrollment Individual Program Plan (IPP));[.]

(5) the individual is Medicaid-eligible due to receipt of Supplemental Security Income cash benefits or is determined by HHSC to be financially eligible for Medicaid; and

(6) the individual meets the requirement described in §42.201(a)(5) of this subchapter.

(b) To support the information in the enrollment IPC and IPP, HHSC [DADS] may request from the case manager:

(1) additional assessments and supporting documentation related to the individual's diagnosis; and

(2) the documentation described in §42.214(d) of this division.

(c) If HHSC [DADS] requests the information described in subsection (b) of this section, the case manager must submit the information to HHSC [DADS] within 10 calendar days after the date of the request.

(d) If HHSC determines that the individual's request for enrollment meets the requirements described in subsection (a)(1) - (6) of this section:

(1) HHSC notifies the program provider, in writing, that the individual's request for enrollment is approved; and

(2) within ten business days after receiving the written notice, the case manager must:

(A) provide to the individual or LAR a copy of the enrollment IPC, the IPP, and if required by §42.407 of this chapter (relating to Service Backup Plans), any service backup plan; and

(B) if the individual will receive a service through the CDS option, send to the FMSA a copy of the enrollment IPC, the IPP, and if required by §42.212(k)(2)(A) of this subchapter (relating to Process for Enrollment of an Individual), the transportation plan.

[(d) DADS notifies the program provider, in writing, that the individual's request for enrollment is approved if:]

[(1) the request for enrollment meets the requirements described in subsection (a)(1) - (4) of this section;]

[(2) the individual is Medicaid-eligible due to receipt of SSI cash benefits or is determined by HHSC to be financially eligible for Medicaid; and]

[(3) the individual is not enrolled in another waiver program or receiving a service that may not be received if the individual is enrolled in the DBMD Program, as identified in the Mutually Exclusive Services table in Appendix V of the DBMD Provider Manual available at www.dads.state.tx.us.]

(e) HHSC [DADS] notifies the individual's program provider, in writing, that the individual's request for enrollment is denied if [:]

[(1)] the request for enrollment does not meet the requirements described in subsection (a)(1) - (6) [(a)(1) - (4)] of this section.[;]

[(2) the individual is not Medicaid-eligible due to receipt of SSI cash benefits or is determined by HHSC not to be financially eligible for Medicaid; or]

[(3) the individual is enrolled in another waiver program or receiving a service that may not be received if the individual is enrolled in the DBMD Program, as identified in the Mutually Exclusive Services table.]

(f) If HHSC [DADS] notifies the program provider that the individual's request for enrollment is denied, the program provider must send the individual or LAR written notice of the denial in accordance with §42.241(a)(2) of this subchapter (relating to Denial of Request for Enrollment in the DBMD Program or of a DBMD Program Service or a CFC Service).

(g) If HHSC [DADS] determines a DBMD Program service or CFC service specified in the enrollment IPC does not meet the requirements described in §42.214(a)(1) and (b)(1) - (6) of this division or §42.215(2)(A) - (D) of this division, HHSC [DADS]:

(1) denies the service;

(2) modifies and authorizes the IPC;

(3) approves the individual's request for enrollment with the modified IPC; and

(4) notifies the program provider, in writing, of the action taken.

(h) If HHSC [DADS] notifies the program provider of the denial of the DBMD Program service or CFC service and of the modification of the enrollment IPC in accordance with subsection (g) of this section, the program provider must:

(1) implement the modified enrollment IPC; and

(2) send the individual or LAR written notice of the denial of a DBMD Program service or a CFC service in accordance with §42.241(a)(2) of this subchapter.

(i) After a program provider receives notification from HHSC as described in subsection (d)(1) or (g)(4) of this section, the program provider must:

(1) electronically access MESAV to determine if the information on the enrollment IPC is consistent with the information in MESAV; and

(2) if the information on the enrollment IPC is inconsistent with the information in MESAV, notify HHSC of the inconsistency.

(j) [(i)] HHSC [DADS ] may approve the effective date of service as requested on the enrollment IPC or may modify the effective date of service.

(k) [(j)] HHSC's determination that an individual meets the requirements described in §42.201(a)(2) and (3) of this subchapter [DADS verification of diagnostic eligibility] and approval of the enrollment IPC is valid for the IPC period of the enrollment IPC.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900459

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-2622


DIVISION 3. REVIEW

40 TAC §§42.220, 42.221, 42.223

STATUTORY AUTHORITY

The new section and amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The new section and amendments and implement Texas Government Code, §531.0055, §531.021, and Texas Human Resources Code, §32.021.

§42.220Tracking Annual Renewal of an ID/RC Assessment and an IPC.

(a) A program provider must have and implement written policies and procedures to ensure compliance with §42.223(b)(3) of this division (relating to Renewal and Revision of an IPC and IPP).

(b) A program provider's written policies and procedures must include a written or electronic tracking system that alerts the program provider to activities that must occur for the program provider to timely submit documentation to HHSC as required by §42.223(b)(3) of this division.

§42.221.Utilization Review of an IPC by HHSC [DADS].

(a) At HHSC's [DADS] discretion, HHSC [DADS] conducts utilization review of an IPC to determine if:

(1) the cost of the IPC meets the criteria described in §42.201(a)(4) [§42.201(a)(5)] of this subchapter (relating to Eligibility Criteria for DBMD Program Services and CFC Services); and

(2) the DBMD Program services and CFC services specified in the IPC meet the requirements described in §42.214(a)(1) and (b)(1) - (6) of this chapter (relating to Development of Enrollment Individual Plan of Care (IPC)).

(b) If requested by HHSC [DADS], a program provider must submit documentation supporting the IPC to HHSC [DADS] within 10 business days after HHSC's [DADS] request.

(c) If HHSC [DADS] determines that an IPC does not meet the criteria described in §42.201(a)(4) [§42.201(a)(5)] of this subchapter, HHSC [DADS] notifies the program provider of such determination and sends written notice to the individual or LAR that the individual's DBMD Program services and CFC services are proposed for termination and includes in the notice the individual's right to request a fair hearing in accordance with §42.251 of this subchapter (relating to Individual's Right to a Fair Hearing).

(d) If HHSC [DADS] determines that the IPC meets the criteria described in §42.201(a)(4) [§42.201(a)(5)] of this subchapter but one or more DBMD Program services or CFC services specified in the IPC do not meet the requirements described in §42.214(a)(1) and (b)(1) - (6) of this subchapter, HHSC [DADS]:

(1) denies or reduces the service, as appropriate;

(2) modifies and authorizes the IPC; and

(3) notifies the program provider, in writing, of the action taken.

(e) If HHSC [DADS] notifies the program provider of the denial or reduction of a DBMD Program service or CFC service, and of the modification of the IPC in accordance with subsection (d) of this section, the program provider must send the individual or LAR written notice and provide services in accordance with:

(1) §42.241(b)(2) and (3) of this chapter (relating to Denial of Request for Enrollment in the DBMD Program or of a DBMD Program Service or a CFC Service); or

(2) §42.243(b) and (c) of this subchapter (relating to Reduction of a DBMD Program Service or a CFC Service).

§42.223.Renewal and Revision [Periodic Review and Update] of an IPC and IPP.

(a) Case manager's review.

(1) Beginning the effective date of service of an individual's IPC, as determined in accordance with §42.216(j) [§42.216(i) ] of this subchapter (relating to HHSC's [DADS] Review of Request for Enrollment), a case manager must, in accordance with the schedule in the DBMD Provider Manual, meet face-to-face with the individual or LAR at a time and place acceptable to the individual or LAR to:

(A) review whether the DBMD Program services and CFC services are being provided as outlined in the IPC and IPP;

(B) review the individual's progress toward achieving the goals and objectives described in the IPP for each DBMD Program service and CFC service;

(C) determine if the services are meeting the individual's needs;

(D) determine if the individual's needs have changed;

(E) review assessments, evaluations, and progress notes prepared by service providers since the previous review;

(F) if the individual's IPC includes residential habilitation, nursing, specialized nursing, or CFC PAS/HAB, and none of these services are identified as critical to the individual's health and safety, discuss with the individual or LAR whether any of these services may now be critical to the individual's health and safety and needs a service backup plan; and

(G) if a service backup plan for residential habilitation, nursing, specialized nursing services, or CFC PAS/HAB has been implemented, discuss the implementation of the service backup plan with the individual or LAR to determine if the plan was effective.

(2) A case manager must:

(A) document the results of the review in the individual's record using the IPP review form;

(B) document on the IPP review form for an individual who has a service backup plan if the service backup plan was:

(i) implemented;

(ii) effective; and

(iii) revised by the service planning team to address any problems or concerns regarding implementation of the service backup plan; and

(C) provide a copy of the completed IPP review form to the individual or LAR within 10 business days after the date of the review.

(3) A case manager must convene a service planning team meeting within five business days after the date of a meeting described in paragraph (1) of this subsection if the case manager:

(A) identifies needed changes in the individual's services; or

(B) determines that residential habilitation, nursing, specialized nursing, or CFC PAS/HAB services may now be critical to the individual's health and safety, as described in paragraph (1)(F) of this subsection, or that the service backup plan was ineffective, as described in paragraph (1)(G) of this subsection.

(4) During a service planning team meeting described in paragraph (3) of this subsection, a case manager must:

(A) develop a revision IPC that meets the requirements described in §42.214(b)(1) - (6) of this subchapter (relating to Development of Enrollment Individual Plan of Care (IPC));

(B) develop a revision IPP that meets the requirements described in §42.215(2)(A) - (D) and (3)(A) - (G) of this subchapter (relating to Development of [and] Enrollment Individual Program Plan (IPP)); and

(C) if:

(i) the revision IPC includes transportation as a residential habilitation activity or as an adaptive aid, develop a transportation plan; and

(ii) the revision IPC includes residential habilitation, nursing, specialized nursing, or CFC PAS/HAB services, ensure compliance with §42.407 of this chapter (relating to Service Backup Plans).

(5) A case manager must:

(A) ensure the revision IPC is signed and dated by each member of the service planning team; and

(B) within 10 business days after the date of the service planning meeting, submit to HHSC [DADS]:

(i) a copy of the completed revision IPC;

(ii) a copy of the revision IPP;

(iii) a transportation plan, if required by paragraph (4)(C)(i) of this subsection;

(iv) a Provider Agency Model Service Backup Plan form, if required by §42.407 of this chapter;

(v) a Rationale for Adaptive Aids, Medical Supplies, and Minor Home Modifications form, if required by §46.602 of this chapter (relating to Requirements For Authorization to Purchase or Lease an Adaptive Aid), §42.613 of this chapter (relating to Requesting Authorization to Purchase a Minor Home Modification that Costs Less than $1,000), or §42.614 of this chapter (relating to Requesting Authorization to Purchase a Minor Home Modification that Costs $1,000 or More);

(vi) a Specifications for Minor Home Modifications form, if required by §42.615 of this chapter (relating to Specifications for a Minor Home Modification);

(vii) a Prior Authorization for Dental Services form, if required by §42.624 of this chapter (relating to Dental Treatment); and

(viii) a Specialized Nursing Certification form, if required by §42.628 of this chapter (relating to Nursing).

[(iii) a copy of the most recent IPC approved by DADS; and]

[(iv) if applicable:]

[(I) Specifications for Minor Home Modifications form;]

[(II) Prior Authorization for Dental Services form;]

[(III) Rationale for Adaptive Aids, Medical Supplies, and Minor Home Modifications form;]

[(IV) Provider Agency Model Service Backup Plan form;]

[(V) Specialized Nursing Certification form;]

[(VI) an adaptive behavior screening assessment; and]

[(VII) a copy of the transportation plan.]

[(6) DADS reviews a revision IPC in accordance with §42.221 of this division (relating to Utilization Review of IPC by DADS) and may request additional assessments and supporting documentation related to the individual's diagnosis.]

[(7) If DADS requests the information described in paragraph (6) of this subsection, a case manager must submit the information to DADS within 10 calendar days after the date of the request.]

[(8) Within 10 business days after receiving a written notice from DADS authorizing services on a revision IPC, a case manager must:]

[(A) provide to the individual or LAR a copy of the revision IPC and revision IPP, and any new or revised service backup plan; and]

[(B) if the individual will receive a service through the CDS option, send a copy of the revision IPC, the revision IPP, and if completed, the transportation plan to the FMSA.]

[(9) A program provider must electronically access the Medicaid Eligibility Service Authorization Verification (MESAV) to verify that the services on the revision IPC have been authorized by DADS.]

(b) Annual review by the service planning team.

(1) Within 90 calendar days before the end of an IPC period:

(A) an individual's case manager must convene a service planning team meeting, with the individual present, at a location chosen by the individual or LAR to review the IPC and IPP; [and]

(B) an RN must complete an annual nursing assessment of the individual using the HHSC [DADS] CLASS/DBMD Nursing Assessment form; and[.]

(C) an RN or a case manager must complete a Related Conditions Eligibility Screening Instrument.

(2) During the service planning team meeting:

(A) the service planning team must:

(i) review the CLASS/DBMD Nursing Assessment form completed by the RN;

(ii) address any information included in Addendum E of the CLASS/DBMD Nursing Assessment form, Recommendations/Coordination of Care, to ensure the individual's needs are met;

(iii) document on the CLASS/DBMD Coordination of Care form how the information in Addendum E of the CLASS/DBMD Nursing Assessment form was addressed;

(iv) [(i)] develop a renewal IPC in accordance with §42.214(b)(1) - (6) of this subchapter and renewal IPP in accordance with §42.215(2)(A) - (D) and (3)(A) - (G) of this subchapter;

(v) [(ii)] complete a renewal ID/RC Assessment [in accordance with the DBMD Provider Manual];

(vi) [(iii)] if the renewal IPC:

(I) [the renewal IPC] includes transportation as a residential habilitation activity or as an adaptive aid, develop a transportation plan; or [and]

(II) [the renewal IPC] includes residential habilitation, nursing, specialized nursing, or CFC PAS/HAB, develop a service backup plan if required by [services, ensure compliance with] §42.407 of this chapter (relating to Service Backup Plans); and

(vii) [(iv)] ensure the renewal IPC is signed and dated by each member of the service planning team; and

(B) the case manager must:

(i) provide an oral and written explanation of the topics described in §42.212(c)(1)(A) - (L) of this subchapter (relating to Process for Enrollment of an Individual) to the individual or LAR;

(ii) educate the individual and LAR about protecting the individual from abuse, neglect, and exploitation;

(iii) [(ii)] provide an oral explanation [orally explain] to the individual or LAR that the individual may transfer to a different program provider;

(iv) give the individual or LAR a Documentation of Provider Choice form and have the individual or LAR designate the selection of a DBMD program provider on the form;

(v) if the individual or LAR selects a different DBMD program provider on the Documentation of Provider Choice form, coordinate the individual's transfer in accordance with §42.231 of this subchapter (relating to Coordination of Transfers);

(vi) [(iii)] give the individual or LAR the HHSC Waiver Program Verification of Freedom of Choice form documenting the individual's or LAR's choice of the DBMD Program over the ICF/IID Program [Documentation of Provider Choice form for the DADS region in which the individual resides];

(vii) [(iv)] orally explain that [to] the individual or LAR may request the provision of residential habilitation, case management, nursing, out-of-home respite in a camp, adaptive aids, intervener services, or CFC PAS/HAB while the individual is temporarily staying at a location outside the contracted service delivery area but within the state of Texas during a period of no more than 60 consecutive days; [that the individual may request a service planning team meeting to discuss the reason the provider declined the request to provide services outside the program provider's contracted service delivery area;] and

(viii) [(v)] have documentation that the activities required under clauses (i) - (vii) [(i) - (iv)] of this subparagraph were performed.

(3) A case manager must, within 10 business days after the date of the service planning team meeting, but at least 30 calendar days before the end of the current IPC period, submit to HHSC [DADS]:

(A) a copy of the completed renewal IPC;

(B) a copy of the renewal IPP [most recent IPC approved by DADS];

(C) a copy of the renewal ID/RC Assessment;

(D) the results of an adaptive behavior screening assessment, which must be completed by an appropriate professional:

(i) at least every five years after completion of the most current assessment; and

(ii) if significant changes occur in the individual's functioning;

[(D) a copy of the renewal IPP;]

(E) a copy of the Related Conditions Eligibility Screening Instrument;

(F) a copy of the Non-Waiver Services form;

(G) a copy of the:

(i) Documentation of Provider Choice form; and

(ii) Waiver Program Verification of Freedom of Choice form;

(H) a copy of the HHSC [DADS] CLASS/DBMD Nursing Assessment form; [and]

(I) a transportation plan, if required by paragraph (2)(A)(vi)(I) of this subsection; and

(J) the documentation described in subsection (a)(5)(B)(iv)-(viii) of this section.

[(I) if applicable:]

[(i) an adaptive behavior screening assessment if the last assessment occurred five years prior or if significant changes have occurred];

[(ii) Specifications for Minor Home Modifications form;]

[(iii) Prior Authorization for Dental Services form;]

[(iv) Rationale for Adaptive Aids, Medical Supplies, and Minor Home Modifications form;]

[(v) Provider Agency Model Service Backup Plan form;]

[(vi) Specialized Nursing Certification form; and]

[(vii) a copy of the transportation plan.]

[(4) DADS:]

[(A) reviews:]

[(i) a renewal IPC in accordance with §42.221 of this division; and]

[(ii) a renewal ID/RC Assessment in accordance with §42.222 of this division (relating to Annual Review and Reinstatement of Lapsed Diagnostic Eligibility); and]

[(B) may request additional assessments and supporting documentation related to the individual's diagnosis.]

[(5) If DADS requests the information described in paragraph (4)(B) of this subsection], a case manager must submit the information to DADS within 10 calendar days after the date of the request.]

[(6) Within 10 business days after receiving a written notice from DADS authorizing services on a renewal IPC, a case manager must:]

[(A) provide to the individual or LAR a copy of the renewal IPC and renewal IPP, and any new or revised service backup plan; and]

[(B) if the individual will receive a service through the CDS option, send a copy of the renewal IPC, the renewal IPP, and if completed, the transportation plan to the FMSA.]

[(7) A program provider must electronically access the Medicaid Eligibility Service Authorization Verification (MESAV) to verify that the services on a renewal IPC have been authorized by DADS.]

(c) Review and revision in an emergency.

[(1)] If a program provider delivers a DBMD Program service or CFC PAS/HAB to an individual in an emergency to ensure the individual's health and welfare and the service is not on the IPC and IPP or exceeds the amount on the IPP, a case manager must:

(1) [(A)] within five business days after providing the service, convene a service planning team meeting to review and revise the IPC in accordance with §42.214(b)(1) - (6) of this subchapter and a revision IPP in accordance with §42.215(2)(A) - (D) and (3)(A) - (G) of this subchapter and include on the revision IPP, documentation of how the requested services addressed the emergency;

(2) [(B)] if the revision IPC includes residential habilitation, nursing, specialized nursing, or CFC PAS/HAB services, ensure compliance with §42.407 of this chapter;

(3) [(C)] ensure the revision IPC is signed and dated by each member of the service planning team; and

(4) [(D)] within 10 business days after the service planning meeting, submit to HHSC [DADS]:

(A) [(i)] a copy of the completed revision IPC;

(B) [(ii)] a copy of the revision IPP; and

(C) the documentation described in subsection (a)(5)(B)(iv)-(viii) of this section.

[(iii) a copy of the most recent IPC approved by DADS; and]

[(iv) if applicable:]

[(I) Specifications for Minor Home Modifications form;]

[(II) Prior Authorization for Dental Services form;]

[(III) Rationale for Adaptive Aids, Medical Supplies, and Minor Home Modifications form;]

[(IV) Provider Agency Model Service Backup Plan form;]

[(V) Specialized Nursing Certification form; and]

[(VI) an adaptive behavior screening assessment.]

[(2) DADS:]

[(A) reviews the revision IPC in accordance with §42.221 of this division; and]

[(B) may request additional assessments and supporting documentation related to the individual's diagnosis.]

[(3) If DADS requests the information described in paragraph (2)(B) of this subsection, a case manager must submit the information to DADS within 10 calendar days after the date of the request.]

[(4) Within ten business days after receiving a written notice from DADS authorizing services on a revision IPC, a case manager must provide to the individual or LAR a copy of the revision IPC and revision IPP, and any new or revised service backup plan.]

[(5) A program provider must electronically access the Medicaid Eligibility Service Authorization Verification (MESAV) to verify that the services on the revision IPC have been authorized by DADS.]

(d) Review and revision other than the reviews described in subsections (a) - (c) of this section.

[(1)] If a program provider becomes aware at any time during an individual's IPC period that changes to the individual's services may be necessary, the individual's case manager must:

(1) [(A)] within five business days after becoming aware that changes to the individual's services may be necessary, convene a service planning team meeting to review and, if determined necessary, revise an IPC in accordance with §42.214(b)(1) - (6) of this subchapter and IPP in accordance with §42.215(2)(A) - (D) and (3)(A) - (G) of this subchapter;

(2) [(B)] if the revision IPC:

(A) [(i)] [the revision IPC] includes transportation as a residential habilitation activity or as an adaptive aid, develop a transportation plan; or [and]

(B) [(ii)] [the revision IPC] includes residential habilitation, nursing, specialized nursing, or CFC PAS/HAB services:[, ensure compliance with §42.407 of this chapter;]

(i) determine whether the individual requires a service backup plan in accordance with §42.407 of this chapter; and

(ii) develop a service backup plan if needed;

(3) [(C)] ensure the revised IPC is signed and dated by each member of the service planning team; and

(4) [(D)] within 10 business days after the date of the service planning meeting, submit the following to HHSC [DADS]:

(A) [(i)] a copy of the completed revision IPC;

(B) [(ii)] a copy of the revision IPP;

(C) a transportation plan, if required by paragraph (2)(A) of this subsection; and

(D) the documentation described in subsection (a)(5)(B)(iv)-(viii) of this section.

[(iii) a copy of the most recent IPC approved by DADS; and]

[(iv) if applicable:]

[(I) Specifications for Minor Home Modifications form;]

[(II) Prior Authorization for Dental Services form;]

[(III) Rationale for Adaptive Aids, Medical Supplies, and Minor Home Modifications form;]

[(IV) Provider Agency Model Service Backup Plan form;]

[(V) Specialized Nursing Certification form;]

[(VI) an adaptive behavior screening assessment; and]

[(VII) a copy of the transportation plan.]

[(2) DADS:]

[(A) reviews the revision IPC in accordance with §42.221 of this division; and]

[(B) may request additional assessments and supporting documentation related to the individual's diagnosis.]

[(3) If DADS requests the information described in paragraph (2)(B) of this subsection, a case manager must submit the information to DADS within 10 calendar days after the date of the request.]

[(4) Within 10 business days after receiving a written notice from DADS authorizing services on the revision IPC, a case manager must:]

[(A) provide to the individual or LAR a copy of the revision IPC and revision IPP, and any new or revised service backup plan; and]

[(B) if the individual will receive a service through the CDS option, send a copy of the revision IPC, the revision IPP, and if completed, the transportation plan to the FMSA.]

[(5) A program provider must electronically access the Medicaid Eligibility Service Authorization Verification (MESAV) to verify that the services on the revision IPC have been authorized by DADS.]

(e) Determination by HHSC of whether an individual meets LOC VIII and additional criteria.

(1) HHSC reviews the documentation described in subsection (b)(3)(C) - (E) of this section to determine whether an individual meets the LOC VIII and additional criteria required by §42.201(a)(2) and (3) of this subchapter (relating to Eligibility Criteria for DBMD Program Services and CFC Services).

(2) HHSC may request additional assessments and supporting documentation related to an individual's LOC VIII and additional criteria. If HHSC makes such a request, a case manager must submit the information to HHSC within 10 calendar days after the date of the request.

(3) HHSC notifies a program provider, in writing, of whether or not an individual meets the LOC VIII and additional criteria. If HHSC determines that an individual meets the LOC VIII and additional criteria, the LOC VIII and additional criteria are effective:

(A) on a date determined by HHSC; and

(B) through the last calendar day of the IPC period.

(4) If an individual's LOC VIII and additional criteria expires before HHSC determines whether the individual meets the LOC VIII and additional criteria, as described in paragraphs (1) - (3) of this subsection:

(A) a program provider must continue to provide services to the individual until HHSC authorizes a proposed renewal IPC to ensure continuity of care and prevent the individual's health and welfare from being jeopardized; and

(B) if HHSC determines that the individual meets the LOC VIII and additional criteria, and the individual is otherwise eligible for the DBMD Program, HHSC will reimburse the program provider for services provided, as required by subparagraph (A) of this paragraph, for a period of not more than 180 calendar days before the date HHSC receives the documentation described in subsection (b)(3)(C) - (E) of this section.

(f) HHSC's review of an IPC.

(1) HHSC reviews a revision IPC or a renewal IPC to determine if the IPC meets the requirement described in §42.201(a)(4) of this subchapter and if the DBMD Program services and CFC services specified in the IPC meet the requirements described in §42.214(a)(1) and (b)(1) - (6) of this subchapter.

(2) At HHSC's request, a case manager must submit additional documentation supporting a revision IPC or a renewal IPC within 10 calendar days after the date of the request.

(3) If HHSC determines that a revision IPC or a renewal IPC meets the requirements:

(A) HHSC notifies the program provider, in writing, of its determination; and

(B) within ten business days after receiving the written notice, the case manager must:

(i) provide to the individual or LAR a copy of the renewal IPC and renewal IPP, and if required by §42.407 of this chapter (relating to Service Backup Plans), any new or revised service backup plan; and

(ii) if the individual will receive a service through the CDS option, send to the FMSA a copy of the renewal IPC, the renewal IPP, and if required by this section, the transportation plan.

(g) If an individual's IPC period expires before HHSC authorizes a renewal IPC:

(1) a program provider must continue to provide services to the individual until HHSC authorizes the renewal IPC to ensure continuity of care and prevent the individual's health and welfare from being jeopardized; and

(2) if HHSC authorizes the renewal IPC as described in subsection (f) of this section, HHSC will reimburse the program provider for services provided, as required by paragraph (1) of this subsection, for a period of not more than 180 calendar days before the date HHSC receives the documentation described in subsection (b)(3) of this section.

(h) Verifying the IPC and MESAV are consistent. A program provider must:

(1) electronically access MESAV to determine if the information on a revision IPC or a renewal IPC is consistent with the information in MESAV; and

(2) if the information on the revision IPC or renewal IPC is inconsistent with the information in MESAV, notify HHSC of the inconsistency.

(i) Process to terminate, deny, or reduce program services. The process by which an individual's DBMD program services or CFC services are terminated or a DBMD Program service or CFC service is denied or reduced, based on HHSC's review of a revision IPC or a renewal IPC, is described in §42.221(c) - (e) of this division (relating to Utilization Review of an IPC by HHSC).

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900460

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-2622


40 TAC §42.222

STATUTORY AUTHORITY

The repeal is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The repeal implements Texas Government Code, §531.0055, §531.021, and Texas Human Resources Code, §32.021.

§42.222.Annual Review and Reinstatement of Lapsed Diagnostic Eligibility.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900461

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-2622


SUBCHAPTER C. PROGRAM PROVIDER ENROLLMENT

40 TAC §42.301

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendment implements Texas Government Code, §531.0055, §531.021, and Texas Human Resources Code, §32.021.

§42.301.Program Provider Compliance With Rules.

A program provider must comply with:

(1) this chapter;

(2) Chapter 97 of this title (relating to Licensing Standards for Home and Community Support Services Agencies);

(3) if providing licensed assisted living, Chapter 92 of this title (relating to Licensing Standards for Assisted Living Facilities);

(4) [(2)] Chapter 41 of this title (relating to Consumer Directed Services Option); and

(5) [(3)] Chapter 49 of this title (relating to Contracting for Community Services).

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900462

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-2622


SUBCHAPTER D. ADDITIONAL PROGRAM PROVIDER PROVISIONS

40 TAC §§42.401, 42.403, 42.405, 42.406, 42.410, 42.411

STATUTORY AUTHORITY

The amendments and new sections are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendments and new sections implement Texas Government Code, §531.0055, §531.021, and Texas Human Resources Code, §32.021.

§42.401.Protection of Individual.

(a) The program provider must have and implement written [human resource] policies and procedures that safeguard an individual against:

(1) infectious and communicable diseases;

(2) conflicts of interest with a service provider, staff person, volunteer, or controlling person [providers];

(3) abuse, neglect, and exploitation;

(4) [(3)] acts of financial impropriety by a service provider, staff person, volunteer, or controlling person [on the part of the program provider or service providers]; and

(5) [(4)] deliberate damage of personal possessions by a service provider, staff person, volunteer, or controlling person [the program provider or service providers].

(b) A program provider must not use seclusion.

(c) A program provider must notify HHSC [DADS ] in writing of an individual's death within 24 hours after learning of the death.

(d) A program provider, in accordance with the DBMD Provider Manual, must report critical incidents to HHSC using the CLASS/DBMD Notification of Critical Incidents form.

(e) A program provider must ensure a program director who receives a copy of an HHSC initial intake report or a final investigative report from an FMSA, in accordance with §41.702 of this title (relating to Requirements Related to HHSC Investigations When an Alleged Perpetrator is a Service Provider) or §41.703 of this title (relating to Requirements Related to HHSC Investigations When an Alleged Perpetrator is a Staff Person or a Controlling Person of an FMSA), sends a copy of the report to the individual's case manager.

§42.403.Training.

(a) General orientation training. A program provider must ensure that a program director and a service provider complete a general orientation curriculum before assuming job duties and annually thereafter.

(1) The general orientation curriculum must include training on:

(A) the rights of an individual;

(B) confidentiality;

(C) the program provider's complaint process; and

(D) the DBMD Program and CFC, including the requirements of this chapter and the DBMD Program services and CFC services specified in §42.104 of this chapter (relating to Description of Deaf Blind with Multiple Disabilities (DBMD) Waiver Program and CFC).

(2) A program provider must document:

(A) the name of the person who received the training required by this subsection;

(B) the date the training was conducted; and

(C) the name of the person who conducted the training.

(b) Abuse, neglect, and exploitation training. A program provider must:

(1) ensure that a program director, service provider, staff person, and volunteer:

(A) are trained on 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) are instructed to report an allegation of abuse, neglect, or exploitation of an individual as described in §42.410 of this chapter (relating to Reporting Allegations of Abuse, Neglect, or Exploitation of an Individual); and

(C) are provided with the instructions described in subparagraph (B) of this paragraph in writing;

(2) conduct the activities described in paragraph (1)(A) - (C) of this subsection:

(A) within one year after the person's most recent training on abuse, neglect, and exploitation and annually thereafter, if the program director, service provider, staff person, or volunteer was hired before September 1, 2018; or

(B) before assuming job duties and annually thereafter, if the program director, service provider, staff person, or volunteer is hired on or after September 1, 2018; and

(3) document:

(A) the name of the person who received the training required by this subsection;

(B) the date the training was conducted; and

(C) the name of the person who conducted the training.

(c) Cardiopulmonary resuscitation, first aid, and choking prevention training. A program provider must ensure training on cardiopulmonary resuscitation, first aid, and choking prevention in accordance with this subsection.

(1) A program provider must ensure that a program director, a case manager, an intervener, and a service provider of licensed assisted living, licensed home health assisted living, day habilitation, employment assistance, residential habilitation, respite, supported employment, and CFC PAS/HAB have current certification in:

(A) cardiopulmonary resuscitation;

(B) basic first aid; and

(C) choking prevention.

(2) The training received to obtain the certification must include an in-person evaluation by a qualified instructor of the trainee's ability to perform the actions listed in paragraph (1)(A) - (C) of this subsection.

(3) A program provider must ensure that:

(A) a program director, a case manager, an intervener, and a service provider of licensed assisted living, licensed home health assisted living, day habilitation, employment assistance, residential habilitation, respite, and supported employment have the certification described in paragraph (1) of this subsection before assuming job duties; and

(B) a CFC PAS/HAB service provider has the certification described in paragraph (1) of this subsection:

(i) within 90 calendar days after the original effective date of this section, if the CFC PAS/HAB service provider was hired on or before the original effective date of this section; or

(ii) before assuming job duties, if the CFC PAS/HAB service provider is hired after the original effective date of this section.

(4) A program provider must maintain a copy of the certification required by paragraph (1) of this subsection. The certification must be issued by the organization granting the certification.

(d) HHSC DBMD Computer Based Training.

(1) A program provider must ensure that a program director and case manager complete the HHSC Deaf Blind with Multiple Disabilities Waiver Computer Based Training and receive a score of at least 80 percent on the examination included in the training:

(A) within 90 days after September 1, 2018, and annually thereafter, if the program director or case manager was hired before September 1, 2018; or

(B) within 90 days after assuming job duties and annually thereafter, if the program director or case manager is hired on or after September 1, 2018.

(2) A program provider must maintain a copy of the certification from the training required by this subsection, issued by HHSC, showing that the person successfully completed the training.

(e) DBMD Program Case Management Training.

(1) A program provider must ensure that a program director and case manager complete, within six months after assuming job duties, the DBMD Program Case Management Training provided by HHSC or training developed by the program provider. A program provider that develops and conducts its own training must ensure that:

(A) the training addresses the following elements from the HHSC DBMD Program Case Management Training:

(i) the DBMD Program service delivery model, which includes:

(I) the role of the case manager and DBMD Program provider;

(II) the role of the service planning team;

(III) person-centered planning; and

(IV) the CDS option;

(ii) DBMD Program services, including how these services:

(I) complement other Medicaid services;

(II) supplement family supports and non-waiver services available in the individual's community; and

(III) prevent institutionalization;

(iii) DBMD Program process and procedures for:

(I) eligibility and enrollment;

(II) service planning, service authorization, and program plans;

(III) access to non-waiver resources; and

(IV) complaint procedures and the fair hearing process; and

(iv) rules, policies, and procedures about:

(I) prevention of abuse, neglect, and exploitation of an individual;

(II) reporting abuse, neglect, and exploitation to local and state authorities; and

(III) financial improprieties involving an individual; and

(B) the staff person who develops and conducts the training successfully completes the DBMD Program Case Management Training provided by HHSC before developing or conducting training.

(2) A program provider must:

(A) for the training required by this subsection that is provided by HHSC, maintain a copy of the certificate issued by HHSC that the person completed the training; or

(B) for the training required by this subsection that is developed and conducted by the program provider, maintain a copy of a certificate or form letter issued by the program provider that includes:

(i) the name of the person who received the training;

(ii) the date the training was conducted; and

(iii) the name of the person conducting the training.

(f) DBMD Program Service Provider Training.

(1) A program provider must ensure that:

(A) a case manager, within six months after assuming job duties, completes the DBMD Program Service Provider Training as described in paragraph (2) of this subsection;

(B) a program director, if providing intervener, licensed assisted living, licensed home health assisted living, case management, day habilitation, employment assistance, nursing, specialized nursing, residential habilitation, respite, supported employment, or CFC PAS/HAB to an individual, completes, within six months after assuming job duties, the DBMD Program Service Provider Training as described in paragraph (2) of this subsection;

(C) an intervener and a service provider of licensed assisted living, licensed home health assisted living, day habilitation, employment assistance, nursing, specialized nursing, residential habilitation, respite, or supported employment, within 90 calendar days after assuming job duties, complete the DBMD Program Service Provider Training as described in paragraph (2) of this subsection; and

(D) a CFC PAS/HAB service provider completes the DBMD Program Service Provider Training:

(i) within 90 days after the original effective date of this section, if the CFC PAS/HAB service provider was hired on or before the original effective date of this section; or

(ii) within 90 calendar days after assuming job duties, if the CFC PAS/HAB service provider is hired after the original effective date of this section.

(2) The DBMD Program Service Provider Training is provided by HHSC or developed by a program provider. If the training is developed by the program provider, the training must address the following elements from the HHSC DBMD Program Service Provider Training curriculum:

(A) methods and strategies for communication;

(B) active participation in home and community life;

(C) orientation and mobility;

(D) behavior as communication;

(E) causes and origins of deafblindness; and

(F) vision, hearing, and the functional implications of deafblindness.

(3) A program provider that develops and conducts its own training, as described in paragraph (2) of this subsection, must ensure that the staff person who develops and conducts the training successfully completes the DBMD Program Service Provider Training provided by HHSC before developing or conducting training.

(4) A program provider must:

(A) for the training required by this subsection that is provided by HHSC, maintain a copy of the certificate issued by HHSC that the person completed the training; or

(B) for the training required by this subsection that is developed and conducted by the program provider, maintain a copy of a certificate or form letter issued by the program provider that includes:

(i) the name of the person who received the training;

(ii) the date the training was conducted; and

(iii) the name of the person conducting the training.

(g) Training on needs of an individual.

(1) Except as provided in paragraph (3) of this subsection, a program provider must ensure an intervener and a service provider of licensed assisted living, licensed home health assisted living, day habilitation, employment assistance, residential habilitation, respite, supported employment, and CFC PAS/HAB, complete training on the needs of an individual:

(A) before providing services to the individual;

(B) at least annually; and

(C) if the individual's needs change.

(2) Training on the needs of an individual must include:

(A) the special needs of the individual, including the individual's:

(i) methods of communication;

(ii) specific visual and audiological loss; and

(iii) adaptive aids;

(B) managing challenging behavior, including training in:

(i) prevention of aggressive behavior; and

(ii) de-escalation techniques; and

(C) instruction in the individual's home with full participation by the individual, LAR, or other involved persons, as appropriate, concerning the specific tasks to be performed.

(3) A program provider must ensure that a CFC PAS/HAB service provider hired before the original effective date of this section receives the training required by this subsection within 90 days after the original effective date of this section, annually thereafter, and if the individual's needs change.

(4) A program provider must document:

(A) the name of the person who received the training required by this subsection;

(B) the date the training was conducted;

(C) the name of the individual;

(D) the topic of the training; and

(E) the name of the person who conducted the training.

(h) Training on delegated tasks.

(1) A program provider must ensure a service provider performing a delegated task is:

(A) trained to perform the delegated task in accordance with state law and rules:

(i) before providing services to an individual;

(ii) annually thereafter; and

(iii) if the individual's needs change; and

(B) supervised by a physician or nurse in accordance with state law and rules.

(2) A program provider must document:

(A) the name of the person who received the training required by this subsection;

(B) the date the training was conducted;

(C) the name of the individual;

(D) the topic of the training; and

(E) the name of the person who conducted the training.

(i) Person-centered service planning training.

(1) A program provider must ensure that a service provider who is responsible for developing the IPP for CFC PAS/HAB completes person-centered service planning training approved by HHSC:

(A) by June 1, 2017, if the service provider was hired on or before June 1, 2015; or

(B) within two years after hire, if the service provider is hired after June 1, 2015.

(2) A program provider must maintain documentation issued by the organization conducting the training required by this subsection that includes:

(A) the name of the person who received the training;

(B) the date the training was conducted; and

(C) the name of the person or organization that conducted the training.

(j) Training requested for a CFC PAS/HAB service provider. If requested by an individual or LAR, a program provider must:

(1) allow the individual or LAR to:

(A) train a CFC PAS/HAB service provider in the specific assistance needed by the individual; and

(B) have the service provider perform CFC PAS/HAB in a manner that comports with the individual's personal, cultural, or religious preferences; and

(2) ensure that a CFC PAS/HAB service provider attends training by HHSC so the service provider meets any additional qualifications desired by the individual or LAR.

(k) Training on protective devices. A program provider must ensure compliance with the training and training documentation requirements described in §42.408(c)(8) and (9) of this subchapter (relating to Protective Devices).

(l) Training on restraints. A program provider must ensure compliance with the training and documentation requirements described in §42.409(d)(3) of this subchapter (relating to Restraints).

§42.405.Documentation of Services Delivered and Recordkeeping [Requirements].

(a) A program provider must ensure that for each service provided, except adaptive aids, dental treatment, minor home modifications, CFC ERS, and CFC support management, a service provider:

(1) documents:

(A) the type of service provided;

(B) the date and the time the service begins and ends;

(C) the type of contact (phone or face-to-face);

(D) the name of the person with whom the contact occurred;

(E) a description of the service activity performed, unless the activity is a non-delegated task provided by an unlicensed service provider that is documented on the IPP; and

(F) the signature and title of the service provider;and

(2) completes an HHSC DBMD Summary of Services Delivered form to document the provision of a service that is supported by the documentation required in paragraph (1)(A)-(F) of this subsection.

(b) A program provider must ensure that, after a service provider makes the last entry on an HHSC DBMD Summary of Services Delivered form, a staff person other than the service provider signs and dates the form as a timekeeper as verification of the accuracy of the information on the form.

(c) [(a)] A program provider must ensure that an individual's record includes the following:

(1) the individual's current IPC and any other [each revision] IPC authorized for the current IPC period;

(2) the individual's current IPP and any other [each revision] IPP developed for the current IPC period;

(3) the individual's current ID/RC Assessment and the original [last] ID/RC Assessment, signed by a physician or, if applicable, the original [last] level of care form signed by a physician prior to use of the ID/RC Assessment form;

(4) current adaptive behavior screening assessment;

(5) current Related Conditions Eligibility Screening Instrument;

(6) the documentation required by subsection (a)(1) of this section;

(7) [(5)] the completed HHSC Summary of Services Delivered forms signed and dated by a timekeeper [form completed] as required by subsection (b) of this section [described in the DBMD Provider Manual];

(8) [(6)] any other relevant documentation concerning the individual [supporting services on the IPC];

(9) [(7)] documentation of the progress or lack of progress in achieving a goal or outcome in the individual's IPP [goals or outcomes] in observable, measurable terms that directly relate to the specific goal or outcome [objective] addressed, including [to include]:

(A) assessments, evaluations, and progress notes prepared [submitted to a case manager] by a service provider for review by a case manager in accordance with §42.223(a)(1)(E) of this chapter (relating to Renewal and Revision [Periodic Review and Update] of an IPC and IPP);

(B) the IPP reviews for the current IPC period prepared by a case manager in accordance with §42.223(a)(2) of this chapter; and

(C) for day habilitation, residential habilitation, and CFC PAS/HAB, the individual's progress or lack of progress in achieving the following outcomes:

(i) the ability to effectively communicate the individual's wants and needs to a day habilitation, residential habilitation, or CFC PAS/HAB service provider;

(ii) the ability to actively participate in activities of daily living to the extent of the individual's ability;

(iii) the ability to implement the individual's choices;

(iv) the ability to access and participate in community activities; and

(v) the ability to move safely and efficiently within the day habilitation, residential habilitation, or CFC PAS/HAB setting;[.]

(10) [(8)] the individual's current Verification of Freedom of Choice form documenting [designating] the individual's or LAR's choice of [regarding enrollment in] the DBMD Program over [enrollment in] the ICF/IID Program;

(11) [(9)] the individual's current Documentation of Provider Choice form documenting the individual's or LAR's choice of a program provider;

(12) [(10)] if required by §42.407 of this subchapter (relating to Service Backup Plans) [applicable], any new or revised Provider Agency Model Service Backup Plan form for residential habilitation, nursing, specialized nursing, or CFC/PAS HAB for the current IPC period;

(13) [(11)] if the IPC includes transportation as a residential habilitation activity or as an adaptive aid, a copy of the individual's transportation plan;

(14) [(12)] if a protective device is used, the documentation required by §42.408 of this subchapter (relating to Protective Devices); and

(15) [(13)] if a restraint is used, the documentation required by §42.409 of this subchapter (relating to Restraints).

[(b) In addition to the requirements in subsection (a) of this section, a program provider must ensure a service provider documents service activities in the individual's record, including:]

[(1) the date, the time service activities begin and end, and the duration of contact;]

[(2) the type of contact (phone or face to face);]

[(3) the person with whom the contact occurred;]

[(4) a description of the service activities provided, unless the service activity provided is a non-delegated task provided by an unlicensed service provider that is documented on the IPP; and]

[(5) the signature and title of the service provider.]

§42.406.Quality Assurance.

(a) A program provider must conduct an annual survey of individuals, LARs, and actively involved family members and friends to determine satisfaction with services.

(b) At least annually, a program provider must:

(1) 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; and

(2) evaluate critical incident data reported in accordance with §42.401(d) of this subchapter (relating to Protection of Individual), compare the program provider's use of restraint to aggregate data provided by HHSC on HHSC's website, and identify program process improvements that help prevent the occurrence of critical incidents and improve service delivery.

[(b) A program provider must not terminate or otherwise retaliate against:]

[(1) a service provider, individual, or other person, because the service provider, individual, or other person, files a complaint, presents a grievance, or otherwise provides good faith information relating to the:]

[(A) misuse of restraint by the program provider; or]

[(B) use of seclusion by the program provider; or]

[(2) an individual because someone on behalf of the individual files a complaint, presents a grievance, or otherwise provides good faith information relating to the:]

[(A) misuse of restraint by the program provider; or]

[(B) use of seclusion by the program provider.]

§42.410.Reporting Allegations of Abuse, Neglect, or Exploitation of an Individual.

If a program provider, service provider, staff person, volunteer, or controlling person knows or suspects that 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:

(1) for an individual receiving licensed assisted living, in accordance with Chapter 92 of this title (relating to Licensing Standards for Assisted Living Facilities); or

(2) for an individual who is not receiving licensed assisted living, to DFPS immediately, but not later than 24 hours, after having knowledge or suspicion by:

(A) calling the DFPS Abuse Hotline toll-free telephone number, 1-800-252-5400; or

(B) using the DFPS Abuse Hotline website.

§42.411.Requirements Related to the Abuse, Neglect, and Exploitation of an Individual.

(a) If a report required by §42.410 of this subchapter (relating to Reporting Allegations of Abuse, Neglect, or Exploitation of an Individual) alleges abuse, neglect, or exploitation by a person who is not a service provider, staff person, volunteer, or controlling person, a program provider must:

(1) as necessary:

(A) obtain immediate medical or psychological services for the individual; and

(B) assist in obtaining ongoing medical or psychological services for the individual; and

(2) discuss with the individual or LAR alternative residential settings and additional services that may help ensure the individual's safety.

(b) If a report required by §42.410 of this subchapter alleges abuse, neglect, or exploitation by a service provider, staff person, 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 person, volunteer, or controlling person, the program provider must:

(1) as necessary:

(A) obtain immediate 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) preserve and protect any evidence related to the allegation; and

(4) as soon as possible, but no later than 24 hours, after the program provider reports or is notified of the allegation, notify the individual, the LAR, and the case manager 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.

(c) During an HHSC investigation of an alleged perpetrator who is a service provider, staff person, 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 persons, volunteers, and controlling persons; and

(C) records pertinent to the investigation of the allegation; and

(3) ensure that service providers, staff persons, volunteers, and controlling persons comply with paragraphs (1) and (2) of this subsection.

(d) After a program provider receives a final investigative report from HHSC for an investigation described in subsection (c) of this section, the program provider must:

(1) if the allegation of abuse, neglect, or exploitation is confirmed or substantiated by HHSC:

(A) review the report, including any concerns and recommendations by HHSC; and

(B) take appropriate action within the program provider's authority to prevent the reoccurrence of abuse, neglect or exploitation, including, when warranted, disciplinary action against the service provider, staff person, 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, as necessary; and

(3) immediately, but not later than five calendar days after the date the program provider receives the HHSC final investigative report, notify the individual, the LAR, and the case manager of:

(A) the investigation finding; and

(B) the action taken by the program provider in response to the HHSC investigation as required by paragraphs (1) and (2) of this subsection.

(e) A program provider must not retaliate against:

(1) a staff person, 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; or

(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 the individual.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900463

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-2622


40 TAC §42.403

STATUTORY AUTHORITY

The repeal is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The repeal implements Texas Government Code, §531.0055, §531.021, and Texas Human Resources Code, §32.021.

§42.403.Training.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900464

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-2622


SUBCHAPTER F. SERVICE DESCRIPTIONS AND REQUIREMENTS

DIVISION 2. MINOR HOME MODIFICATIONS

40 TAC §§42.613, 42.614, 42.617

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendments implements Texas Government Code, §531.0055, §531.021, and Texas Human Resources Code, §32.021.

§42.613.Requesting Authorization to Purchase a Minor Home Modification that Costs Less than $1,000.

(a) To purchase a minor home modification for an individual that costs less than $1,000, a [the] program provider:

(1) does not have to obtain specifications as described in §42.615 of this division (relating to Specifications for a Minor Home Modification);

(2) includes the cost of the minor home modification and the cost of the inspection of the minor home modifications, not to exceed $150, in an IPC and IPP developed in accordance with:

(A) for an enrollment IPC and IPP, §42.214 of this chapter (relating to Development of Enrollment Individual Plan of Care (IPC)) and §42.215 of this chapter (relating to Development of Enrollment Individual Program Plan (IPP)); or

(B) for a revision or renewal IPC and IPP, §42.223(a), (b), (c), or (d), of this chapter (relating to Renewal and Revision [Periodic Review and Update] of an IPC and IPP);

(3) ensures the case manager:

(A) obtains an HHSC [a DADS] Rationale for Adaptive Aids, Medical Supplies, and Minor Home Modifications form completed in accordance with the DBMD Program Manual; and

(B) [(4)] submits to HHSC [the documentation described in paragraphs (2) and (3) of this subsection to DADS]:

(i) the IPC and IPP:

(I) [(A)] in accordance with §42.212(l)(2) [§42.212(k)] of this chapter (relating to Process for Enrollment of an Individual), for an individual requesting enrollment in the DBMD Program; or

(II) [(B)] in accordance with §42.223(a), (b), (c), or (d) of this chapter, for an individual receiving DBMD Program services; and[.]

(ii) the completed HHSC Rationale for Adaptive Aids, Medical Supplies, and Minor Home Modifications form.

(b) HHSC [DADS] reviews the documentation submitted in accordance with subsection (a)(3)(B) [(a)(4) ] of this section and makes a determination in accordance with:

(1) for an enrollment IPC and IPP, §42.216 [§42.216(f)] of this chapter (relating to HHSC's [DADS] Review of Request for Enrollment); or

(2) for a revision or renewal IPC and IPP, §42.223(f) [§42.223(a), (b), (c), or (d),] of this chapter.

[(c) The program provider must electronically access TMHP information to verify that services requested on an IPC have been authorized by DADS utilizing the Medicaid Eligibility Service Authorization Verification (MESAV).]

(c) [(d)] Before construction of the minor home modification begins, the program provider must:

(1) obtain written approval for construction of the modification from the owner of the property in question, unless such approval is granted in an applicable lease agreement; and

(2) ensure that the selected vendor obtains any required building permits.

(d) [(e)] The program provider must direct the vendor to begin construction of the minor home modification within seven calendar days after one of the following, whichever is later:

(1) the date HHSC [DADS] authorizes the proposed IPC; or

(2) the effective date of the IPC as determined by the service planning team.

§42.614.Requesting Authorization to Purchase a Minor Home Modification that Costs $1,000 or More.

(a) To purchase a minor home modification for an individual that costs $1,000 or more, a program provider must:

(1) ensure that the individual's service planning team includes the cost, not to exceed $200, of the specifications for the requested minor home modification in the individual's IPC and IPP developed in accordance with:

(A) for an enrollment IPC and IPP, §42.214 of this chapter (relating to Development of Enrollment Individual Plan of Care (IPC)) and §42.215 of this chapter (relating to Development of Enrollment Individual Program Plan (IPP); or

(B) for a revision or renewal IPC and IPP, §42.223(a), (b), (c), or (d), of this chapter (relating to Renewal and Revision [Periodic Review and Update] of an IPC and IPP));

(2) ensure the case manager:

(A) obtains an HHSC [a DADS] Rationale for Adaptive Aids, Medical Supplies, and Minor Home Modifications form completed in accordance with the DBMD Program Manual; and

(B) [(3)] submits to HHSC [ submit the documentation described in paragraphs (1) and (2) of this subsection to DADS]:

(i) the IPC and IPP:

(I) [(A)] in accordance with §42.212(l)(2) [§42.214] of this chapter (relating to Process for Enrollment of an Individual), for an individual requesting enrollment in the DBMD Program; or

(II) [(B)] in accordance with §42.223(a), (b), (c), or (d) of this chapter, for an individual receiving DBMD Program services; and [.]

(ii) the completed HHSC Rationale for Adaptive Aids, Medical Supplies, and Minor Home Modifications form.

(b) HHSC [DADS] reviews the documentation submitted in accordance with subsection (a)(2)(B) [(a)(3) ] of this section, and makes a determination in accordance with:

(1) for an enrollment IPC and IPP, §42.216 [§42.216(f)] of this chapter (relating to HHSC's [DADS] Review of Request for Enrollment); or

(2) for a revision or renewal IPC and IPP, §42.223(f) [§42.223(a), (b), (c), or (d),] of this chapter.

[(c) The program provider must electronically access TMHP information to verify that services requested on an IPC have been authorized by DADS utilizing the Medicaid Eligibility Service Authorization Verification (MESAV).]

(c) [(d)] If HHSC [DADS ] authorizes the IPC for payment of the specifications, the program provider must:

(1) within 30 calendar days after the date HHSC [DADS] authorizes the IPC, obtain the specifications in accordance with §42.615 of this division (relating to Specifications for a Minor Home Modification); and

(2) within 60 calendar days after the specifications are obtained:

(A) obtain bids from vendors in accordance with §42.616(a) - (c) of this division (relating to Bid Requirements for a Minor Home Modification); and

(B) select a vendor in accordance with §42.616(d) of this division to complete construction of the minor home modification.

(d) [(e)] A [The] program provider must:

(1) include the cost of the minor home modification from the bid submitted by the vendor selected as described in subsection (c)(2)(B) of this section [(d)(2)(B)] and the cost of the inspection of the minor home modification, not to exceed $150, in an IPC and IPP developed in accordance with:

(A) for an enrollment IPC and IPP, §42.214 and §42.215 of this chapter; or

(B) for a revision or renewal IPC and IPP, §42.223(a), (b), (c), or (d), of this chapter; and

(2) ensure the case manager submits [submit ] the IPC and IPP to HHSC [DADS]:

(A) in accordance with §42.212(l)(2) [§42.212(k)] of this chapter [(relating to Process for Enrollment of an Individual)], for an individual requesting enrollment in the DBMD Program; or

(B) in accordance with §42.223(a), (b), (c), or (d) of this chapter, for an individual receiving DBMD Program services.

(e) [(f)] HHSC [DADS ] reviews the documentation submitted in accordance with subsection (d)(2) [(e)(2)] of this section, and makes a determination in accordance with:

(1) for an enrollment IPC and IPP, §42.216 [§42.216(f)] of this chapter; or

(2) for a revision or renewal IPC and IPP, §42.223(f) [§42.223(a), (b), (c), or (d)] of this chapter.

[(g) The program provider must electronically access TMHP information to verify that services requested on an IPC have been authorized by DADS utilizing the Medicaid Eligibility Service Authorization Verification (MESAV).]

(f) [(h)] Before construction of the minor home modification begins, the program provider must:

(1) obtain written approval for construction of the modification from the owner of the property in question, unless such approval is granted in an applicable lease agreement; and

(2) ensure that the selected vendor obtains any required building permits.

(g) [(i)] The program provider must direct the vendor to begin construction of the minor home modification within seven calendar days after one of the following, whichever is later:

(1) the date HHSC [DADS] authorizes the proposed IPC; or

(2) the effective date of the IPC as determined by the service planning team.

§42.617.Time Frames for Completion of Minor Home Modification.

(a) A program provider must ensure that a minor home modification is completed within 60 calendar days after the date the vendor begins construction as directed by the program provider, in accordance with:

(1) §42.613(d) [§42.613(e)] of this division (relating to Requesting Authorization to Purchase a Minor Home Modification that Costs Less than $1,000); or

(2) §42.614(g) [§42.614(i)] of this division (relating to Requesting Authorization to Purchase a Minor Home Modification that Costs $1,000 or More).

(b) If the program provider determines that the minor home modification will not be completed within the timeframe required by subsection (a) of this section, the program provider must notify the individual, in writing, of a new proposed date of completion. The new proposed date of completion must not be more than 30 calendar days after the timeframe required by subsection (a) of this section.

(c) The program provider must maintain of copy of the notice described in subsection (b) of this section in the individual's record.

(d) If, before a minor home modification is completed, an individual or LAR notifies the program provider of the individual's intention to transfer, the program provider must ensure that the minor home modification is completed before the effective date of the transfer.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900465

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-2622


DIVISION 3. REQUIREMENTS FOR OTHER DBMD PROGRAM SERVICES

40 TAC §42.623, §42.632

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendments implement Texas Government Code, §531.0055, §531.021, and Texas Human Resources Code, §32.021.

§42.623.Case Management.

[(a)] The only activities that a program provider may bill as case management are: [A program provider must ensure that a case manager performs the following case management activities:]

(1) a face-to-face, email, phone call, or text message contact with an individual;

(2) a face-to-face, email, phone call, or text message contact with the LAR, primary caregiver, or actively involved family members and friends regarding the individual's services;

(3) a phone call, text message, email, letter, or meeting [phone calls, text messages, emails, letters, or meetings] with HHSC [DADS] or community resources regarding the individual's services; and

(4) working with service providers regarding the individual including:

(A) reviewing services and goals as described in the individual's IPC and IPP;

(B) providing the training described in §42.403(g) [specific to an individual as described in §42.403(e)] of this chapter (relating to Training);

(C) monitoring training strategies used by service providers to carry out goals described in the IPP; and

(D) activities performed as a member of [participating on] the service planning team.

[(b) A program provider may bill DADS only for the case management activities described in subsection (a) of this section at the case management rate.]

§42.632.Therapies.

(a) A program provider must provide or ensure the provision of [may provide] the following therapies:

(1) occupational therapy;

(2) physical therapy;

(3) speech, language, audiology therapy; and

(4) dietary services. [;]

(b) A program provider must ensure a therapy:

(1) is delivered by an appropriately licensed service provider, as follows:

(A) for occupational therapy, an occupational therapist licensed in accordance with Texas Occupations Code, Chapter 454, Occupational Therapists;

(B) for physical therapy, a physical therapist licensed in accordance with Texas Occupations Code, Chapter 453, Physical Therapists;

(C) for speech, language, audiology therapy, a speech and language pathologist or audiologist licensed in accordance with Texas Occupations Code, Chapter 401, Speech-Language Pathologists and Audiologists; or

(D) for dietary services, a dietitian licensed in accordance with Texas Occupations Code, Chapter 701, Dieticians.

(2) includes, as appropriate, the following activities:

(A) screening and assessment;

(B) developing and implementing [development and implementation of] a treatment plan that, as appropriate, includes a plan to:

(i) transfer a therapy task to an unlicensed service provider; and

(ii) change the role of the therapist to a supervisory role;

(C) directing [direct] therapeutic intervention in accordance with the appropriate chapter of the Texas Occupations Code;

(D) consulting with or training of family members and other service providers;

(E) participating on an individual's service planning team, when appropriate;

(F) informing the physician and other appropriate professionals of changes in the individual's health status that may require a change in the IPC;

(G) preparing a report to the case manager as described in subsection (g) [(f)(3)] of this section;

(H) supervising and training an unlicensed service provider within the scope of applicable state statutes and rules; and

(I) conducting assessments and preparing specifications for the procurement of an adaptive aid or minor home modification; and

(3) is provided to an individual at a location agreeable to the individual or LAR.

(c) A program provider must:

(1) obtain a physician's order for therapy before the delivery of the therapy;

(2) ensure that the physician's order includes the following:

(A) individual's name;

(B) type of therapy;

(C) frequency and duration of therapy;

(D) other instructions, if applicable;

(E) physician's name and medical specialty; and

(F) effective date of the order; and

(3) retain the physician's order in the individual's record.

(d) The program provider may accept faxed physician's orders for therapy services.

(1) The program provider does not have to obtain a countersignature of the faxed orders by the prescribing physician.

(2) The program provider must ensure the faxed orders are legible.

(e) If requested by an individual's service planning team, a service provider of a therapy may screen an individual for therapy services without obtaining a physician's order.

(f) A [The] program provider may bill HHSC [DADS] only for the following therapy activities:

(1) screening, assessing, and evaluating the need for services;

(2) developing and implementing a treatment plan;

(3) periodically evaluating [periodic evaluations of] the individual's progress toward achieving the goals and objectives described in the IPP for the therapy service and providing [with] updates to the program provider;

(4) providing direct therapeutic intervention;

(5) interacting with the individual or LAR regarding the individual's condition and progress toward or achievement of goals;

(6) training the individual to use an adaptive aid;

(7) delegating therapy tasks to an unlicensed person in accordance with rules of the appropriate licensing board;

(8) consulting with family members and other service providers regarding the individual's DBMD Program and CFC services;

(9) informing the physician and the program provider of changes in the individual's health status requiring a service plan change;

(10) participating in service planning team meetings, if requested;

(11) supervising and training an unlicensed service provider within the scope of the therapy examining board rules;

(12) participating in a fair hearing at the request of a member of the service planning team to provide information within the scope of the service provider's license;

(13) assisting with writing specifications for adaptive aids; and

(14) providing consultation or justification for the procurement of an adaptive aid or minor home modification.

(g) A program provider must ensure an appropriately licensed therapist provides a report to the individual's case manager at least 10 calendar days before the [quarterly] review described in §42.223(a) of this chapter (relating to Renewal and Revision [Periodic Review and Update] of an IPC and IPP) that:

(1) reviews the individual's progress toward achieving the goals and objectives described in the IPP for that therapy;

(2) reviews whether the services are meeting the individual's needs;

(3) documents whether the individual's needs have changed; and

(4) documents attempts to teach maintenance services and techniques to other [direct] service providers.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900466

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-2622


DIVISION 4. ADDITIONAL REQUIREMENTS

40 TAC §42.641

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendment implements Texas Government Code, §531.0055, §531.021, and Texas Human Resources Code, §32.021.

§42.641.Non-Billable Time and Activities.

A program provider must not bill for and HHSC [DADS ] does not reimburse for:

(1) services provided to an individual before HHSC's [DADS] approval of the individual's request for enrollment in the DBMD Program;

(2) supervision of service providers unless providing delegated tasks;

(3) phone calls, text messages, emails, letters, or meetings with HHSC [DADS] or community resources that do not directly address an individual's services;

(4) administrative meetings or staff meetings;

(5) in-service training, general training, continuing education, or conferences;

(6) employee conferences or evaluations;

(7) filing claims for services;

(8) traveling to and from an individual's residence, except when a day habilitation, residential habilitation, or in-home respite service provider is transporting the individual;

(9) processing paperwork or completing records or reports;

(10) services not included on an approved IPC;

(11) services that are mutually exclusive;

(12) other services and activities not authorized, permitted, or allowed under this chapter;

(13) routine care and supervision that a family member is legally obligated to provide;

(14) activities or supervision for which a payment is made by a source other than Medicaid;

(15) room and board;

(16) any expense related to providing residential habilitation, nursing, out-of-home respite in a camp, case management, adaptive aids, intervener services, or CFC PAS/HAB outside the program provider's contracted service delivery area, including costs for transportation or lodging; [and]

(17) residential habilitation, nursing, out-of-home respite in a camp, case management, adaptive aids, intervener services, or CFC PAS/HAB provided to an individual outside the program provider's contracted service delivery area if the individual has received services outside the program provider's contracted service delivery during a period of more than 60 consecutive days; or [.]

(18) two or more services provided at the same time by the same service provider.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900467

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-2622


CHAPTER 44. CONSUMER MANAGED PERSONAL ATTENDANT SERVICES (CMPAS) PROGRAM

As required by Texas Government Code, §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all of its functions were transferred to the Health and Human Services Commission (HHSC) in accordance with Texas Government Code, §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1, govern functions previously performed by DADS that have transferred to HHSC. Texas Government Code, §531.0055, requires the executive commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, including rules in Title 40, Part 1. Therefore, the executive commissioner of HHSC proposes amendments to §§44.102, 44.202, 44.302, 44.306 - 44.308, 44.402, 44.421, 44.422, 44.441, 44.442, 44.502, 44.504, and 44.505; and new §§44.310, 44.311, 44.443, and 44.444 in Title 40 Part 1, Chapter 44, Consumer Managed Personal Attendant Services.

BACKGROUND AND PURPOSE

The proposed rules include requirements in Chapter 44 related to abuse, neglect, and exploitation of an individual in the Consumer Managed Personal Attendant Services (CMPAS) Program. The CMPAS Program is a non-Medicaid Program in which an individual may receive services in one of three service delivery options: the traditional service option; the block grant option; or the consumer directed services (CDS) option. In the CDS option, an individual is the employer of the attendants who provide CMPAS services, while a provider provides financial management services to the individual and completes HHSC training to function as a financial management services agency. In the traditional services option, a provider is the employer of the attendants who provide personal attendant services to an individual. In the block grant option, an individual is the employer of the attendant and a provider is the employer of the substitute attendant. In all three options, a provider is required to provide case management to an individual.

The purpose of the proposed rules is to address changes in the investigatory process for abuse, neglect, and exploitation resulting from amendments to Texas Human Resources Code, Chapter 48. The statutory amendments gave the Department of Family and Protective Services (DFPS) Adult Protective Services (APS) Provider Investigation (PI) Program the authority to investigate an allegation of abuse, neglect or exploitation of an individual receiving CMPAS Program services through the CDS option when the alleged perpetrator is a "provider," as defined for the CDS option under Texas Human Resources Code, Chapter 48. As further specified in the proposed rules, this includes when the alleged perpetrator is an employee of the individual or a staff person or controlling person of the provider.

Effective September 1, 2017, in accordance with Texas Government Code, §531.02011 and §531.02013, the functions performed by the DFPS APS PI Program were transferred to HHSC. Therefore, the proposed rules address investigations of allegations of abuse, neglect, and exploitation conducted by HHSC for an individual receiving CMPAS Program services through the CDS option and describe requirements for the individual and provider to protect an individual from abuse, neglect, and exploitation and secure the safety of an individual who may have been abused, neglected, or exploited.

The proposed rules also include the current requirements in Texas Administrative Code, Title 40, (40 TAC) §49.310, Abuse, Neglect, and Exploitation Allegations, that apply to a CMPAS provider. Those rules, as proposed in Chapter 44, use terminology specific to the CMPAS Program, add specificity to the current requirements of §49.310, and add new requirements. For example, the proposed rules require a provider to: (1) conduct training of staff persons on abuse, neglect, and exploitation before the staff persons assume job duties and annually thereafter; (2) ensure such persons are trained and knowledgeable about signs and symptoms of abuse, neglect, or exploitation; (3) educate an individual and representative about protecting the individual from abuse, neglect, and exploitation; and (4) give written information to staff on how to report abuse, neglect, or exploitation. Rules in 40 TAC Chapter 49, Contracting for Community Services, are also being proposed in this issue of the Texas Register to exclude a CMPAS provider from complying with §49.310.

The proposed rules define "abuse," "exploitation," "neglect," and other terms related to abuse, neglect, and exploitation to clarify the terms when used in 40 TAC Chapter 44. In addition, the proposed rules define the terms "chemical restraint," "mechanical restraint," "physical restraint," "restraint," and "seclusion." They also define "physical abuse" to include the use of restraint or seclusion because restraint and seclusion are prohibited by the proposed CMPAS rules. This is consistent with DFPS rules, which provide that the use of restraint or seclusion not in compliance with rules constitutes physical abuse.

The proposed rules also make changes to clarify and update provider requirements for interdisciplinary team (IDT) meetings; development and maintenance of records; attendant time sheets; and billing. The proposed rules also clarify terminology and rules that apply to an individual's legally authorized representative (LAR).

SECTION-BY-SECTION SUMMARY

The proposed amendment to §44.102, Definitions, adds definitions of "abuse," "alleged perpetrator," "chemical restraint," "controlling person," "DFPS," "exploitation," "HHSC," "home and community support services agency," "mechanical restraint," "neglect," "physical abuse," "physical restraint," "restraint," "seclusion," "Section 1915(c)," "sexual abuse," "sexual activity," "sexual exploitation," "staff person," and "verbal or emotional abuse" to define what these terms mean when used in the chapter. The proposed rule amends the definition of "individual" and adds a definition of "LAR--legally authorized representative" to clarify the rules that apply to an individual's LAR. The term "representative" is separately defined to distinguish its meaning, when used, from LAR. The proposed amendment also makes minor editorial changes to update agency names and terminology.

The proposed amendment to §44.202, CMPAS Interest Lists, replaces "representative" with "LAR", and makes minor editorial changes to update agency names and terminology.

The proposed amendment to §44.302, Provider Qualifications and Responsibilities in All CMPAS Service Delivery Options, broadens the requirement that a provider's required licensure under 40 TAC Chapter 97 be in the personal assistance services category of licensure, to allow other categories of licensure under which CMPAS services may also be offered. The proposed amendment also requires compliance with 40 TAC Chapter 97 for a provider to participate in the CMPAS Program. The proposed amendment also reformats the section and makes minor editorial changes to update agency names and terminology.

The proposed amendment to §44.306, Individual Training by a Provider, adds a rule reference, reformats the rule, and makes minor editorial changes to improve clarity.

The proposed amendment to §44.307, Individual Responsibilities in All CMPAS Service Delivery Options, includes an LAR among the persons alternatively required to perform the responsibilities described in the section, and makes minor editorial changes to update agency names and terminology.

The proposed amendment to §44.308, Suspension of Services, makes minor editorial changes to update agency names and terminology and improve clarity.

Proposed new §44.310, Prohibition of Restraint and Seclusion, prohibits a provider from using restraint or seclusion while providing services in any CMPAS Program service delivery option.

Proposed new §44.311, Provider Responsibilities Related to the Abuse, Neglect, and Exploitation of an Individual in All CMPAS Service Delivery Options, sets out requirements for a provider, in all CMPAS Service Delivery Options, to educate an individual and representative about how to report an allegation of abuse, neglect, or exploitation and how to protect the individual from abuse, neglect, and exploitation. The proposed rule requires a provider to train staff persons about how to recognize abuse, neglect, and exploitation and methods to prevent abuse, neglect, and exploitation; to provide abuse, neglect, or exploitation reporting requirements to staff persons and train them in those requirements; and to report known or suspected abuse, neglect, or exploitation. If a provider is notified of, or there is a report of, an allegation of abuse, neglect, or exploitation, the proposed rule requires a provider to take specific action, including taking measures to secure the safety of the individual, and notifying the individual or the LAR of the allegation of abuse, neglect, or exploitation and the protective measures the provider has or will take based on the allegation. In addition, the proposed rule prohibits a provider from retaliating against a staff person or individual who files a complaint alleging abuse, neglect, or exploitation, and requires a provider, on an annual basis, to review all abuse, neglect, or exploitation reports of which the provider is notified and identify program process improvements that help prevent the occurrence of abuse, neglect, or exploitation.

The proposed amendment to §44.402, Provider Responsibilities in the Traditional Service Option, requires a provider in the traditional service option to comply with the requirements of §44.302, Provider Qualifications and Responsibilities in All CMPAS Service Delivery Options, and deletes the requirement that a provider train an attendant on reporting suspected abuse, neglect, or exploitation. The training requirement for reporting suspected abuse, neglect, or exploitation is relocated to proposed new §44.311. The proposed amendment also makes minor editorial changes to update agency names and terminology and improve clarity.

The proposed amendment to §44.421, Provider Responsibilities in the Block Grant Option, requires a provider that provides services in the block grant option to comply with the requirements of §44.302. If the provider learns that an individual is failing to fully perform a duty the individual is required to perform as the attendant's employer of record under the block grant option, the amendment requires a provider to offer an individual the choice to participate in the traditional service option. This replaces the requirement to offer the individual the choice of another CMPAS Program option under those circumstances. The proposed amendment also makes minor editorial changes to reformat the section and improve clarity.

The proposed amendment to §44.422, Individual Responsibilities in the Block Grant Option, requires an individual receiving services in the block grant service option to comply with the requirements of §44.307, Individual Responsibilities in All CMPAS Service Delivery Options, and, within certain time frames, to train an attendant about abuse, neglect, and exploitation as required by HHSC, and record the training and notify the provider concerning the training as specified in the rule. The proposed amendment also makes minor editorial changes to improve clarity.

The proposed amendment to §44.441 retitles the section to "Provider Responsibilities in the CDS Option" to use the defined acronym for the CDS option and makes editorial changes that reformat and clarify the provider responsibilities currently listed in the rule.

The proposed amendment to §44.442, which retitles the section to "Individual Responsibilities in the CDS Option," requires an individual, receiving services through the CDS Option, to comply with the requirements of §44.307; perform employer responsibilities described in Title 40, Chapter 41, with the exception of the requirements of Subchapter G of that chapter; train an attendant and substitute attendant about abuse, neglect, and exploitation as required by HHSC, within the time frames specified in the rule; and record the training and notify the provider as specified in rule. The proposed amendment also contains abuse, neglect, or exploitation reporting requirements for the individual if the individual knows or suspects that the individual is being or has been abused, neglected, or exploited. In addition, the proposed amendment uses the defined acronym for the CDS option within the section and in the new section title. The proposed amendment also makes editorial changes that reformat the section and clarify the responsibilities of an individual that are currently listed in the rule.

Proposed new rule §44.443, Provider and Individual Responsibilities in the CDS Option Related to HHSC Investigations When an Alleged Perpetrator is an Attendant or Substitute Attendant, sets out requirements which apply to providers and individuals who participate in the CDS option after an allegation of abuse, neglect, or exploitation has been reported as required by §44.311 or §44.442, or after the provider or individual has been notified by HHSC of an allegation, and the alleged perpetrator is an attendant or substitute attendant for whom the individual is the employer of record. The proposed new rule requires an individual to obtain necessary immediate and ongoing medical or psychological services; take actions to secure the individual's safety; preserve and protect evidence related to the abuse, neglect, or exploitation allegation; cooperate with an HHSC investigation; and ensure attendants also comply with requirements to preserve evidence and cooperate with an HHSC investigation. The proposed new rule also requires providers to preserve and protect evidence related to the abuse, neglect, or exploitation allegation, cooperate with an HHSC investigation, and ensure that staff persons and controlling persons do the same. In addition, the proposed new rule requires providers to convene an IDT meeting to discuss and document the actions that the individual has taken or will take to protect the individual during an HHSC investigation. The proposed new rule sets out the actions a provider must take after the provider receives the final investigative report from HHSC. The proposed new rule requires a provider to maintain a copy of the initial intake report, the final investigative report and other required documentation in the individual's record.

Proposed new rule §44.444, Provider and Individual Responsibilities in the CDS Option Related to HHSC Investigations When an Alleged Perpetrator is a Staff Person or a Controlling Person of a Provider, sets out requirements which apply to providers and individuals who participate in the CDS option after an allegation of abuse, neglect, or exploitation has been reported as required by §44.311 and §44.442, or if the provider or individual has been notified by HHSC of an allegation, and the alleged perpetrator is a staff person or a controlling person of the provider. The proposed new rule requires a provider to take actions to secure the individual's safety; preserve and protect evidence related to the abuse, neglect, or exploitation allegation; cooperate with an HHSC investigation; and ensure that staff persons and controlling persons also cooperate with an HHSC investigation and provide HHSC the same access a provider must provide for the investigation. The proposed new rule also requires individuals to cooperate with an HHSC investigation; provide HHSC access to records as necessary; and ensure that attendants and substitute attendants also cooperate with the investigation. In addition, the proposed new rule requires providers to convene an IDT meeting, and document any actions that have been taken or will be taken as a result of the allegation. The proposed new rule sets out the actions a provider must take after the provider receives the final investigative report from HHSC. The proposed new rule requires a provider to maintain a copy of the initial intake report, the final investigative report and other required documentation in the individual's record.

The proposed amendment to §44.502 retitles the section to "Convening an IDT" to use the defined acronym for interdisciplinary team. The proposed amendment requires an IDT to include the individual and a provider representative, and allows an individual to request other persons on the IDT, including the individual's "representative." The proposed amendment also clarifies when a provider must convene an IDT meeting, including convening an IDT meeting as described in §44.308 and proposed new §44.443 and §44.444 for investigations by HHSC relating to an individual receiving services through the CDS option. Additionally, the proposed amendment requires a provider, if unable to convene an IDT meeting with all the required members specified in the rule, to document in the individual's record the provider's efforts to convene an IDT meeting with all the required members. The proposed amendment requires the IDT to meet by telephone conference call or in person and clarifies what the IDT must discuss, including the specific reason for convening an IDT meeting and possible solutions to resolve the reason for the meeting. Documentation requirements for the IDT are made more specific, requiring that a provider document the specific reason for the meeting, the names of the IDT members attending the meeting, the recommendations of the IDT, and the actions to be taken or that have been taken by the provider or the individual, to replace the more general requirement currently in rule that the provider document the outcome of the IDT meeting. The proposed amendment also requires a provider to notify the individual of the right to request a fair hearing, as provided by §44.503, if an action to be taken or taken denies, reduces, or terminates the individual's services.

The proposed amendment to §44.504, Records, requires a provider to develop and maintain records in compliance with Subchapter C of Title 40, Chapter 49, which includes doing so in compliance with a provider's contract, so the requirement of recordkeeping in accordance with a provider's contract was deleted as unnecessary. The current reference to Chapter 69 was also deleted, since that chapter has been repealed. The proposed amendment also clarifies the requirements for a provider to develop and maintain service delivery records consisting of attendant timesheets contained in a single document for each attendant and records to demonstrate compliance with enumerated program rules in the chapter. In addition, the proposed amendment makes editorial changes to reorganize the requirements for a provider's financial records; specifies that the recordkeeping requirements in relation to subcontracts in §49.308, Subcontracts, apply if a provider uses a subcontractor; and updates the terminology and makes clarifying changes in describing the actions HHSC may take against a provider for its failure to maintain records in accordance with this section.

The proposed amendment to §44.505, Reimbursement, updates a reference to a Chapter 49 rule on claims payment. The proposed amendment also reorganizes and clarifies the billing requirements relating to attendant tasks, and makes minor editorial changes to improve clarity.

FISCAL NOTE

Ms. Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that for each year of the first five years that the sections will be in effect, there will be no fiscal implications to state or local governments as a result of enforcing and administering the sections as proposed.

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

(3) implementation of the proposed rules will not require an increase or decrease in future legislative appropriations;

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

(5) the proposed rules will create new rules;

(6) the proposed rules will expand an existing rule;

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

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

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

Ms. Greta Rymal, Deputy Executive Commissioner for Financial Services, has also determined that there will be an adverse economic effect on providers in the CMPAS Program that are small businesses or micro-businesses. HHSC lacks sufficient data to estimate the number of CMPAS providers designated as a small business or micro-business that would be impacted by the proposed rules. A CMPAS provider may incur a cost for revising its policies and procedures and written information related to abuse, neglect, and exploitation, and for providing training. HHSC lacks sufficient information on the numbers of staff persons who must receive new training, their payment rates, or the amount of time it may take them to complete any new training. Therefore, HHSC is unable to provide an estimate for these provider costs. There is no anticipated cost for compliance with any of the other proposed requirements, which largely add clarity and specificity to the rules, consistent with present practices of CMPAS providers, to enhance compliance with current requirements. Since the rules that may have an adverse economic effect on small or micro-businesses have the specific purpose of preventing and addressing abuse, neglect, and exploitation, HHSC determined that alternative methods to achieve the purpose of the proposed rules for small businesses or micro-businesses would not be consistent with ensuring the health and safety of all individuals receiving services in the CMPAS Program.

Ms. Rymal has determined that there will not be an adverse economic effect on rural communities because no rural communities contract as a CMPAS provider.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There is an anticipated economic cost to persons who are required to comply with the sections as proposed because providers may incur a cost to revise their policies, procedures, written information, and provide training related to abuse, neglect, and exploitation. HHSC lacks sufficient data to estimate these costs.

There is no anticipated negative impact on local employment.

COSTS TO REGULATED PERSONS

Texas Government Code, §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas and to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT

Stephanie Muth, State Medicaid Director, has determined that for each year of the first five years the sections are in effect, the public will benefit from the adoption of the sections. The public benefit anticipated as a result of enforcing or administering the sections will be the improvement of a system that identifies, addresses, and seeks to prevent abuse, neglect, and exploitation, and provides greater protections for individuals who are subjected to abuse, neglect, and exploitation.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 4900 North Lamar Boulevard, Austin, Texas 78751; or e-mailed to HHSRulesCoordinationOffice@hhsc.state.tx.us.

To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday. Therefore, comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) e-mailed by midnight on the last day of the comment period. When e-mailing comments, please indicate "Comments on Proposed Rule 40R017" in the subject line.

SUBCHAPTER A. INTRODUCTION

40 TAC §44.102

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code §531.0055 which authorizes the executive commissioner to adopt rules governing the delivery of services to persons served by the health and human services system.

The amendment implements Texas Government Code §531.0055.

§44.102.Definitions.

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

(1) Abuse--Any of the following:

(A) physical abuse;

(B) sexual abuse; or

(C) verbal or emotional abuse.

[(1) §1915(c)--A section of the Social Security Act that allows states to establish, by waiver of certain Medicaid requirements, alternative community-based services for individuals who qualify for institutional services.]

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

(3) [(2)] Applicant--A Texas resident who requests services under the CMPAS Program.

(4) [(3)] Assessor of need--A provider employee responsible for determining an applicant's or individual's need for CMPAS.

(5) [(4)] Attendant--A person who provides direct care to an individual.

(6) [(5)] Block grant option--One of three CMPAS Program service delivery and payment options. In the block grant option, the individual is the employer of record of an attendant and the provider is the employer of record of a substitute attendant.

(7) [(6)] CDS [Consumer directed services (CDS)] option--Consumer directed services option. One of three CMPAS Program service delivery and payment options. In the CDS option, the individual is the employer of record of the attendant and substitute attendant.

(8) 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.

(9) [(7)] CMPAS Program--Consumer Managed Personal Attendant Services Program. An HHSC [A DADS] program for personal attendant services in which individuals manage their attendant services to varying degrees.

(10) [(8)] Contract--The written agreement between HHSC [DADS] and a provider to provide services to individuals eligible under this chapter in exchange for payment.

(11) [(9)] Contract manager--An HHSC [A DADS] employee who is responsible for the overall management of a contract.

(12) Controlling person--A person who:

(A) has an ownership interest in a provider;

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

(C) is a partner in a partnership that is a provider;

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

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

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

(13) [(10)] DADS--HHSC [The Department of Aging and Disability Services].

(14) [(11)] DADS region--HHSC region. A region of Texas designated by HHSC [DADS] in which the CMPAS Program is available.

(15) [(12)] DADS regional designee --An HHSC [A DADS] employee appointed by the HHSC [DADS] regional director of an HHSC [a DADS] region.

(16) [(13)] Day--A calendar day, including weekends and holidays.

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

(18) Exploitation--

(A) in the traditional service option and the block grant option, exploitation means 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, including theft as defined in Chapter 31 of the Texas Penal Code; and

(B) in the CDS option, exploitation means 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.

(19) [(14)] Family member--A person who [for whom an individual] has a duty under state law to provide care for an individual.

(20) [(15)] FMSA--Financial management services agency. [--] An entity that contracts with HHSC [DADS] to provide financial management services, as defined in §41.103 of this title (relating to Definitions).

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

(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.

(22) [(17)] Health-related task--An activity of daily living, a health maintenance task, or a nursing task, as described in 22 TAC Chapter 225.

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

(24) Home and community support services agency--An agency licensed under Texas Health and Safety Code, Chapter 142.

(25) [(18)] IDT--Interdisciplinary team. A designated group of persons [that meets to discuss service delivery issues of an individual,] as described in §44.502(a) of this chapter (relating to Convening an IDT [Interdisciplinary Team]).

(26) [(19)] Individual--A person enrolled in the CMPAS Program. A reference in this chapter to "individual" includes the individual's LAR, unless the context indicates otherwise.

(27) LAR--Legally authorized representative. A person authorized by law to act on behalf of an individual with regard to a matter described in this chapter, including the guardian of an adult.

(28) 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.

(29) 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.

(30) [(20)] Military member--A member of the United States military serving in the Army, Navy, Air Force, Marine Corps, or Coast Guard 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.

[(21) 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.]

(31) 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.

(32) 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; or

(C) the use of a restraint or seclusion.

(33) 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.

(34) [(22)] Practitioner--A physician currently licensed in Texas, Louisiana, Arkansas, Oklahoma, or New Mexico; a physician assistant currently licensed in Texas; or an advanced practice registered nurse licensed by the Texas Board of Nursing.

(35) [(23)] Practitioner's statement--The HHSC [DADS] Practitioner's Statement of Medical Need form [(DADS Form 3052)].

(36) [(24)] Provider--A home and community support services agency that contracts with HHSC [DADS] to provide services under the CMPAS Program.

(37) Restraint--Any of the following:

(A) a chemical restraint;

(B) a mechanical restraint; or

(C) a physical restraint.

(38) [(25)] Representative--An adult [A person] designated by an individual, such as the individual's spouse, relative, or friend, who volunteers to assist the individual with a responsibility of the individual described in this chapter [; or the individual's legal representative].

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

(40) Section 1915(c)--A section of the Social Security Act that allows states to establish, by waiver of certain Medicaid requirements, alternative community-based services for individuals who qualify for institutional services.

(41) [(26)] Service plan--A document that lists the service tasks and states the hours of services agreed to by the individual and assessor of need.

(42) 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 an attendant, staff person, or controlling person, unless a consensual sexual relationship with an adult individual existed before the attendant, staff person, or controlling person became an attendant, staff person, or controlling person.

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

(44) 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.

(45) Staff person--An employee, contractor, or volunteer of a provider.

(46) [(27)] State mental health facility--A Texas state hospital or a state center with an inpatient psychiatric component [operated by the Texas Department of State Health Services].

(47) [(28)] Substitute attendant--A person who, on a temporary basis and in place of an attendant, provides services to an individual.

(48) [(29)] Traditional service option--One of three CMPAS Program service delivery and payment options. In the traditional service option, the provider is the employer of record of the attendant and substitute attendant.

(49) 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.

(50) [(30)] Working day--Any day except a Saturday, Sunday, or national or state holiday listed in Texas Government Code §662.003(a) or (b).

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900493

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-5645


SUBCHAPTER B. ELIGIBILITY AND SERVICE PLANS

40 TAC §44.202

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code §531.0055, which authorizes the executive commissioner to adopt rules governing the delivery of services to persons served by the health and human services system.

The amendment implements Texas Government Code §531.0055.

§44.202.CMPAS Interest Lists.

(a) HHSC [DADS] maintains a CMPAS interest list for each HHSC [DADS] region. An interest list contains the names of applicants who are interested in receiving services through the CMPAS Program.

(b) A person may request that an applicant's name be added to a CMPAS interest list in an HHSC [a DADS] region by contacting:

(1) a provider;

(2) an HHSC [a DADS] regional office, or

(3) the 2-1-1 Texas Program.

(c) If a person contacts a provider, as described in subsection (b) of this section, the provider must follow HHSC's [DADS] instructions in the CMPAS Provider Manual available at the HHSC website [www.dads.state.tx.us], to request the applicant's:

(1) name;

(2) a physical address in Texas and a mailing address;

(3) birth date;

(4) phone number;

(5) social security number;

(6) current living arrangements;

(7) employment status;

(8) HHSC's [DADS] individual number; and

(9) status regarding receipt of Supplemental Security Income.

(d) Within five working days after the contact described in subsection (b)(1) of this section, a provider must send to an HHSC [a DADS] regional office:

(1) the applicant information obtained in accordance with subsection (c) of this section; and

(2) the date and time the person contacted the provider.

(e) HHSC [DADS] adds an applicant's name to a CMPAS interest list if:

(1) a request is made in accordance with subsection (b) of this section; or

(2) an applicant's name is on the interest list for an HHSC [a DADS] region and the applicant or a representative notifies HHSC [DADS] that the applicant has moved to another HHSC [DADS] region and requests that the applicant's name be added to the interest list for the HHSC [DADS] region to which the applicant has moved.

(f) HHSC [DADS] adds an applicant's name to an interest list with an interest list request date as follows:

(1) for a request to add an applicant's name to the interest list made in accordance with subsection (b) of this section, the date of the request; or

(2) for a request to add an applicant's name to the interest list made in accordance with subsection (e)(2) of this section, the date of the original request made in accordance with subsection (b) of this section.

(g) HHSC [DADS] removes an applicant's name from a CMPAS interest list if:

(1) the applicant or LAR [representative] requests that the applicant's name be removed from the interest list;

(2) the applicant moves out of Texas, unless the applicant is a military family member living outside of Texas:

(A) while the military member is on active duty; or

(B) for less than one year after the former military member's active duty ends;

(3) the applicant or LAR [representative] declines an offer of CMPAS Program services, unless the applicant is a military family member living outside of Texas:

(A) while the military member is on active duty; or

(B) for less than one year after the former military member's active duty ends;

(4) the applicant is a military family member living outside of Texas for more than one year after the former military member's active duty ends;

(5) the applicant is deceased; or

(6) HHSC [DADS] denies an applicant's eligibility for the CMPAS Program and the applicant has had an opportunity to exercise the applicant's right to request a fair hearing in accordance with §44.503 of this chapter (relating to Fair Hearing) and did not request a fair hearing, or requested a fair hearing and did not prevail.

(h) If HHSC [DADS] removes an applicant's name from a CMPAS interest list in accordance with subsection (g)(1) - (4) of this section and, within 90 calendar days after the name was removed, HHSC [DADS] receives an oral or written request from a person to reinstate the applicant's name on the interest list, HHSC [DADS]:

(1) reinstates the applicant's name to the interest list with an interest list request date described in subsection (f)(1) or (2) of this section; and

(2) notifies the applicant in writing that the applicant's name has been reinstated to the interest list in accordance with paragraph (1) of this subsection.

(i) If HHSC [DADS] removes an applicant's name from a CMPAS interest list in accordance with subsection (g)(1) - (4) of this section and, more than 90 calendar days after the name was removed, HHSC [DADS] receives an oral or written request from a person to reinstate the applicant's name on the interest list, HHSC [DADS]:

(1) adds the applicant's name to the interest list with an interest list request date of:

(A) the date HHSC [DADS] receives the oral or written request; or

(B) because of extenuating circumstances as determined by HHSC [DADS], the original request date described in subsection (f)(1) or (2) of this section; and

(2) notifies the applicant in writing that the applicant's name has been added to the interest list in accordance with paragraph (1) of this subsection.

(j) If HHSC [DADS] removes an applicant's name from a CMPAS interest list in accordance with subsection (g)(6) of this section and HHSC [DADS] subsequently receives an oral or written request from a person to reinstate the applicant's name on the interest list, HHSC [DADS]:

(1) adds the applicant's name to the interest list with an interest list request date of the date HHSC [DADS ] receives the oral or written request; and

(2) notifies the applicant in writing that the applicant's name has been added to the interest list in accordance with paragraph (1) of this subsection.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900494

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-5645


SUBCHAPTER C. SERVICE DELIVERY IN ALL CMPAS OPTIONS

40 TAC §§44.302, 44.306 - 44.308, 44.310, 44.311

STATUTORY AUTHORITY

The amendments and new section are proposed under Texas Government Code §531.0055, which authorizes the executive commissioner to adopt rules governing the delivery of services to persons served by the health and human services system.

The amendments and new sections implement Texas Government Code §531.0055.

§44.302.Provider Qualifications and Responsibilities in All CMPAS Service Delivery Options.

To participate as a provider in the CMPAS Program, the provider must:

(1) maintain a license from HHSC [DADS] under Chapter 97 of this title (relating to Licensing Standards for Home and Community Support Services Agencies) in one or more of the following categories of licensure: [, in the personal assistance services category of licensure;]

(A) personal assistance services;

(B) licensed home health services; or

(C) licensed and certified home health services;

(2) comply with the requirements of Chapter 97 of this title;

(3) [(2)] comply with Chapter 49 of this title (relating to Contracting for Community Services);

(4) [(3)] obtain required [ secure requisite] training to function as an FMSA for those individuals who choose the CDS [consumer directed services] option for CMPAS services;

(5) [(4)] comply with [ enter into a contract with DADS to provide CMPAS Program services and meet] the requirements described in this chapter;

(6) [(5)] have contract compliance monitored by an HHSC [a DADS] contract manager;

(7) [(6)] be able to provide services under all three service delivery options; and

(8) [(7)] provide case management services, including:

(A) determining applicant eligibility and co-payment amount;

(B) preparing individual registration data entry forms;

(C) assessing and reassessing individual needs using the HHSC [DADS Form 2060,] Assessment Questionnaire and Task/Hour Guide; and

(D) developing a service plan.

§44.306.Individual Training by a Provider.

Before providing services to an individual [enrolled in the CMPAS Program], a provider must educate and train the individual in:

(1) rights and responsibilities of the individual;

(2) [if desired by the individual,] skills for recruiting, selecting, instructing, supervising, and dismissing attendants, if desired by the individual;

(3) procedures for preparing attendant time sheets as described in §44.504(b)(1) of this chapter (relating to Records);

(4) procedures for the CMPAS Program service delivery option that the individual chooses; and

(5) rights and responsibilities of the attendant and the substitute attendant.

§44.307.Individual Responsibilities in All CMPAS Service Delivery Options.

An applicant, individual, or the LAR or representative of an applicant or individual must:

(1) obtain and submit a practitioner's statement to the assessor of need;

(2) negotiate with the assessor of need at an assessment or reassessment to determine which allowable tasks in §44.304 of this subchapter (relating to Allowable and Unallowable Tasks) are included in the individual's service plan;

(3) select, supervise, and release from service an attendant;

(4) train and supervise a personal attendant in the specifics of the delivery of services;

(5) certify the attendant's time worked on or after the last day of each recording period by:

(A) verifying, signing, dating, and submitting to the provider the attendant's time sheet; or

(B) if applicable, submitting appropriate certification of the attendant's time worked through a provider's electronic service delivery documentation system;

(6) notify the provider within 10 days after the date the individual begins receiving services under another HHSC [DADS] program that duplicates the services provided under the CMPAS Program;

(7) submit any required co-payment to the provider as required by §44.501 of this chapter (relating to Determining an Individual's Co-payment);

(8) provide proof of income to the assessor of need upon request;

(9) obtain and submit to the assessor of need a proper physician's order and physician's or registered nurse's documentation for any delegated health-related task to be included in the service plan before the task is included in the service plan; and

(10) inform the provider and HHSC [DADS] within 10 days after a change in the individual's:

(A) mailing or residence address;

(B) telephone number;

(C) physical condition that may affect the need for services;

(D) total monthly income, as calculated in accordance with §44.501(f) of this chapter;

(E) income exclusions, as described in §44.501(i) of this chapter; and

(F) monthly deductions, as described in §44.501(j) of this chapter.

§44.308.Suspension of Services.

(a) A provider must suspend services to an individual if:

(1) the individual changes residence to outside the state of Texas;

(2) the individual moves to a location where the provider does not provide CMPAS Program services to the individual except as provided for in §44.403 of this chapter (relating to Attendant Services Provided Outside the Provider Contracted Service Delivery Area in the Traditional Services Option);

(3) the individual dies;

(4) the individual is admitted to:

(A) a hospital;

(B) a nursing facility;

(C) a state supported living center;

(D) a state mental health facility; or

(E) an intermediate care facility for individuals with an intellectual disability or related conditions;

(5) the individual [or the individual's legal representative] requests that services end;

(6) the individual, [the individual's] representative, or someone in the individual's home, as applicable, refuses to:

(A) supervise the attendant;

(B) adhere to the service plan; or

(C) otherwise comply with a requirement of the CMPAS Program;

(7) the individual or [the individual's] representative, as applicable, does not have the ability to:

(A) supervise the attendant;

(B) adhere to the service plan; or

(C) otherwise comply with a requirement of the CMPAS Program;

(8) the individual does not submit a co-payment as required by §44.501 of this chapter (relating to Determining an Individual's Co-payment);

(9) the individual does not provide a practitioner's statement as required by §44.307 of this subchapter (relating to Individual Responsibilities in All CMPAS Service Delivery Options); or

(10) the provider becomes aware that the individual no longer meets eligibility requirements for the CMPAS Program.

(b) The provider may suspend services if:

(1) the individual or someone in the individual's home engages in discrimination in violation of law;

(2) the individual or representative fails to effectively manage attendant care, including problems with:

(A) hiring, selecting, or retaining an attendant for reasons other than workforce issues;

(B) reaching an agreement on the amount of reimbursement the provider will retain in the block grant option [(in the block grant option)]; or

(C) completing or submitting required program documentation; or

(3) the individual or someone in the individual's home exhibits reckless behavior that may result in imminent danger to the health or safety of the individual, the attendant, or another person.

(c) Under the circumstances described in subsection (b)(3) of this section, the provider must immediately report the situation to:

(1) DFPS [the Department of Family and Protective Services] or other appropriate protective services agency;

(2) local law enforcement; and

(3) the HHSC [DADS] regional designee.

(d) Within seven days after suspending an individual's services, the provider must notify the HHSC [DADS] regional designee of the suspension in writing and provide a copy of the notice to the individual. The written notice of suspension must include:

(1) the date of service suspension;

(2) the reason for the suspension;

(3) the duration of the suspension, if known; and

(4) an explanation of the provider's attempts to resolve the problem that caused the suspension, and the reasons why the problem was not resolved.

(e) A provider must convene an IDT meeting, as described in §44.502 of this chapter (relating to Convening an IDT [Interdisciplinary Team]), within seven days after sending the written notice of suspension, if services are suspended for a reason described in subsection (a)(6) and (7) or (b)(1) - (3) of this section.

(f) A provider must resume services after a suspension:

(1) after an individual returns [upon the individual's return] home, if applicable;

(2) on the date specified in writing by the HHSC [DADS] regional designee;

(3) as a result of a recommendation by the IDT; or

(4) after the provider receives [upon the provider's receipt of] notification from the HHSC [DADS] regional designee that the provider must resume services pending the outcome of a fair hearing.

(g) The provider must send written notice to the HHSC [DADS] regional designee that services have resumed within seven days after the date services resume.

§44.310.Prohibition of Restraint and Seclusion.

A provider must not use restraint or seclusion.

§44.311.Provider Responsibilities Related to the Abuse, Neglect, and Exploitation of an Individual in All CMPAS Service Delivery Options.

(a) A provider, before providing services to an individual and on an annual basis, must:

(1) inform the individual and representative of how to report allegations of abuse, neglect, or exploitation to DFPS and provide the individual with the DFPS Abuse Hotline toll-free telephone number, 1-800-252-5400, in writing; and

(2) educate the individual and representative of how to protect the individual from abuse, neglect, and exploitation.

(b) A provider, before a staff person assumes job duties and on an annual basis, must:

(1) train a staff person:

(A) about acts that constitute abuse, neglect, and exploitation;

(B) about signs and symptoms of abuse, neglect, and exploitation;

(C) about methods to prevent abuse, neglect, and exploitation; and

(D) to report to DFPS immediately, but not later than 24 hours, after the staff person has knowledge or suspects that an individual is being or has been abused, neglected, or exploited by:

(i) calling the DFPS Abuse Hotline toll-free telephone number, 1-800-252-5400; or

(ii) using the DFPS Abuse Hotline website; and

(2) provide the staff person with the reporting requirements described in paragraph (1)(D) of this subsection in writing.

(c) If a provider, staff person, or controlling person knows or suspects that an individual is being or has been abused, neglected, or exploited, the 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 24 hours, after having knowledge or suspicion by:

(1) calling the DFPS Abuse Hotline toll-free telephone number, 1-800-252-5400; or

(2) using the DFPS Abuse Hotline website.

(d) If a report required by subsection (c) of this section alleges abuse, neglect, or exploitation of an individual, or if the provider is notified of an allegation of abuse, neglect, or exploitation, the provider must:

(1) take necessary actions to secure the safety of the individual; and

(2) as soon as possible, but no later than 24 hours, after the provider reports or is notified of the allegation, notify the individual or LAR of:

(A) the allegation report; and

(B) the actions the 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 under this subsection.

(e) A provider must not retaliate against:

(1) a staff person, 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; or

(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 the individual; and

(f) A provider, on an annual basis, must:

(1) review all reports of abuse, neglect, or exploitation of an individual of which the provider is notified and all final investigative reports received from HHSC for an investigation described in §44.443 of this chapter (relating to Provider and Individual Responsibilities in the CDS Option Related to HHSC Investigations When an Alleged Perpetrator is an Attendant or Substitute Attendant) and §44.444 of this chapter (relating to Provider and Individual Responsibilities in the CDS Option Related to HHSC Investigations When an Alleged Perpetrator is a Staff Person or a Controlling Person of a Provider); and

(2) based on the review, identify program process improvements that help prevent the occurrence of abuse, neglect, and exploitation and improve the delivery of services.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900495

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-5645


SUBCHAPTER D. SERVICE DELIVERY OPTIONS

DIVISION 1. TRADITIONAL SERVICE OPTION

40 TAC §44.402

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code §531.0055 which authorizes the executive commissioner to adopt rules governing the delivery of services to persons served by the health and human services system.

The amendment implements Texas Government Code §531.0055.

§44.402.Provider Responsibilities in the Traditional Service Option.

In the traditional service option, a provider must:

(1) comply with the requirements of §44.302 of this chapter (relating to Provider Qualifications and Responsibilities in All CMPAS Service Delivery Options); [and must:]

(2) [(1)] maintain and supervise a pool of substitute attendants to provide attendant services upon the individual's request;

(3) [(2)] refer prospective attendants to the individual until the individual selects an attendant;

(4) [(3)] hire an attendant who meets the qualifications of §44.303 of this chapter (relating to Attendant Qualifications) and whom the individual agrees to supervise;

(5) [(4)] if an individual has not selected a prospective attendant within seven days after [from] the date the assessor of need determined the individual to be eligible for services:

(A) confer with the individual;

(B) identify the reasons the individual has not selected an attendant; and

(C) provide training when necessary to enable the individual to select an attendant;

(6) [(5)] provide to an attendant an initial orientation training before the attendant provides services to an individual that includes the following topics:

(A) basic interpersonal skills;

(B) needs of persons with disabilities;

(C) first aid;

(D) universal safety precautions;

(E) safety and emergency procedures;

(F) proper completion of required forms;

(G) explanation of the individual's role as supervisor;

(H) explanation of the provider's responsibilities to attendants;

(I) attendant rights and responsibilities;

(J) specific information needed to provide tasks to the individual;

(K) reporting changes in the individual's condition to the provider [, including any suspected abuse, neglect, or exploitation]; and

(L) instructions to provide only authorized tasks according to the service plan, unless the individual pays for additional time with the individual's own funds;

(7) [(6)] assume all responsibility for paying and filing attendant income and unemployment taxes and associated paperwork;

(8) [(7)] assume liability for attendant work-related injuries to the same extent as any employer;

(9) [(8)] prepare payroll and distribute payroll checks to attendants as required by state and federal law;

(10) [(9)] actively intervene to resolve problems between an individual and the individual's attendant when they cannot resolve problems on their own;

(11) [(10)] determine the salary and benefit package of an attendant;

(12) [(11)] not discriminate against an attendant or applicant in violation of law;

(13) [(12)] accept responsibility for acts of an attendant while the attendant performs services for the individual [attendants on the job] to the same extent as any employer would be responsible for the acts of an employee; and

(14) [(13)] conduct on-site visits in addition to those described in §44.203 of this chapter (relating to Assessment and Eligibility Determination) and §44.204 of this chapter (relating to Reassessments), based on the specific needs of the individual or attendant, but at least annually, to assess and document whether the:

(A) [that the] individual's service plan is adequate;

(B) [that the] individual continues to need the services;

(C) [whether the] individual needs a service plan change;

(D) [that the] attendant remains competent to perform the allowable tasks; and

(E) [that the] attendant is performing the allowable tasks.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900496

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-5645


DIVISION 2. BLOCK GRANT OPTION

40 TAC §44.421, §44.422

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code §531.0055 which authorizes the executive commissioner to adopt rules governing the delivery of services to persons served by the health and human services system.

The amendments implement Texas Government Code §531.0055.

§44.421.Provider Responsibilities in the Block Grant Option.

In the block grant option, a provider must:

(1) comply with the requirements of §44.302 of this chapter (relating to Provider Qualifications and Responsibilities in All CMPAS Service Delivery Options); [and must:]

(2) [(1)] reimburse the individual for attendant wages and employment taxes paid by the individual;

(3) [(2)] negotiate with the individual and agree on an amount that the provider will retain from reimbursements made under §44.505 of this chapter (relating to Reimbursement) to compensate the provider for its services to the individual [and that is] based on the provider's actual cost of providing services to the individual, which may include:

(A) the cost of providing substitute attendants;

(B) the cost of providing administrative services;

(C) the history of the individual's use of substitute attendants; and

(D) the need for provider intervention;

(4) [(3)] maintain and supervise a pool of substitute attendants to provide attendant services at [upon] the individual's request;

(5) [(4)] provide each substitute attendant an initial orientation before the attendant provides services to the individual that includes the following topics:

(A) basic interpersonal skills;

(B) needs of persons with disabilities;

(C) first aid;

(D) universal safety precautions;

(E) safety and emergency procedures;

(F) proper completion of required forms;

(G) explanation of the individual's role as supervisor;

(H) explanation of the provider agency's responsibilities to attendants;

(I) attendant rights and responsibilities;

(J) specific information needed to provide tasks to the individual;

(K) reporting changes in the individual's condition to the provider [agency]; and

(L) instructions to provide only authorized tasks in accordance to the service plan, unless the individual pays for additional time with the individual's own funds;

(6) [(5)] send a substitute attendant at the individual's request; and

(7) [(6)] for an [any ] individual the provider learns is failing to fully perform a [any] duty the individual is required to perform as the attendant's employer of record:

(A) counsel the individual regarding the consequences of noncompliance;

(B) offer the individual the choice of the traditional services [another CMPAS Program] option; and

(C) consider suspending services as provided by §44.308 of this chapter (relating to Suspension of Services) if the individual does not choose the traditional service option and does not perform the duties as the employer of record.

§44.422.Individual Responsibilities in the Block Grant Option.

In the block grant option, an individual must:

(1) comply with the requirements of [responsibilities listed in] §44.307 of this chapter (relating to Individual Responsibilities in All CMPAS Service Delivery Options); [and must:]

(2) [(1)] select, hire, and pay the individual's [his or her own] attendants as the employer of record;

(3) before the individual's attendant provides a service and on an annual basis:

(A) train an attendant regarding abuse, neglect, and exploitation as described in HHSC Form 1732 Management and Training of Service Provider;

(B) sign and date Form 1732 and have the attendant sign and date the form to document completion of the training; and

(C) send a copy of the signed form to the provider within 30 days after the date the form is signed by the individual and the attendant;

(4) [(2)] resolve any employment-related problems or disagreements directly with the [his or her] attendant;

(5) [(3)] not discriminate against an attendant or applicant in violation of law;

(6) [(4)] assume liability for work-related attendant injuries and responsibility for work-related attendant conduct to the same extent as any employer would assume liability for injuries and responsibility for conduct of an employee;

(7) [(5)] spend funds received from the provider that were reimbursed under §44.505 of this chapter (relating to Reimbursement) [only] on attendant wages, employment-related tax payments, and employee benefits;

(8) [(4)] prepare and sign an agreement with the attendant that includes:

(A) the tasks the attendant is to perform for the individual;

(B) the schedule the attendant will work for the individual;

(C) the hourly rate, at or above the minimum wage required by law, the individual will pay the attendant;

(D) the schedule the individual will use to pay the attendant (at least twice per month);

(E) the reasons the individual may terminate the attendant's employment; and

(F) a requirement that the attendant provide the individual at least 24 hours advance notice if unable to work a scheduled shift;

(9) [(7)] supervise the attendant's recording of hours worked, including signing, dating, and submitting the attendant's time sheet to the provider on or after the last day of the reporting period during which services were provided; and

(10) [(8)] submit to the provider, within 30 days after filing, copies of any employment-related government forms the individual files for the attendant [his or her employees] as the employer of record, including all required Internal Revenue Service obligations and required reports to the Texas Workforce Commission.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900497

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-5645


DIVISION 3. CONSUMER DIRECTED SERVICE (CDS) OPTION

40 TAC §§44.441 - 44.444

STATUTORY AUTHORITY

The amendments and new sections are proposed under Texas Government Code §531.0055 which authorizes the executive commissioner to adopt rules governing the delivery of services to persons served by the health and human services system.

The amendments and new sections implement Texas Government Code §531.0055.

§44.441.Provider Responsibilities in the CDS [Consumer Directed Services] Option.

In the CDS [consumer directed services] option, a provider must:

(1) comply with the requirements of [responsibilities listed in] §44.302 of this chapter (relating to Provider Qualifications and Responsibilities in All CMPAS Service Delivery Options); [and must]

(2) function as an FMSA to provide financial management services to an individual; [as a financial management services agency on behalf of the individual:]

(3) [(1)] approve and monitor [approving and monitoring] a budget for services delivered through the CDS [consumer directed services] option;

(4) [(2)] manage [managing ] payroll, including calculating employee withholdings and employer contributions and depositing the funds with the appropriate agencies;

(5) [(3)] comply [complying ] with applicable government regulations concerning employee withholding, garnishments, mandated withholding, and benefits;

(6) [(4)] prepare and file [preparing and filing] required tax forms and reports;

(7) [(5)] pay [paying ] allowable expenses incurred by the individual;

(8) [(6)] obtain [obtaining ] employer-agent status with the Internal Revenue Service, the Texas Workforce Commission, and any other appropriate government agencies within the time frame established by each agency;

(9) [(7)] perform [performing ] all employer-agent responsibilities required by government agencies that regulate the relationship between the employer-agent and the individual acting as the employer of record and maintain an original or a copy of each form required to document compliance; and

(10) [(8)] attend [attending ], at least annually, HHSC's [DADS] training for FMSAs [financial management services agencies].

§44.442.Individual Responsibilities in the CDS [Consumer Directed Services] Option.

(a) In the CDS [consumer directed services] option, an individual must: [comply with]

(1) comply with the requirements in §44.307 of this chapter (relating to Individual Responsibilities in All CMPAS Service Delivery Options); [and comply with]

(2) perform the employer responsibilities described in Chapter 41 of this title (relating to Consumer Directed Services Option), with the exception of the responsibilities described in Chapter 41, Subchapter G of this title (relating to Allegations of Abuse, Neglect and Exploitation); [.]

(3) train each attendant and substitute attendant, during the initial orientation and on an annual basis, regarding abuse, neglect, and exploitation as described in HHSC Form 1732 Management and Training of Service Provider;

(4) sign and date Form 1732 and have the attendant or substitute attendant sign and date the form to document completion of the training; and

(5) send a copy of the signed form to the provider within 30 days after the date the form is signed by the individual and the attendant or substitute attendant.

(b) In the CDS option, if an individual knows or suspects that the individual is being or has been abused, neglected, or exploited, the individual must:

(1) report the abuse, neglect, or exploitation to DFPS immediately, but not later than 24 hours, after the abuse, neglect, or exploitation occurred by:

(A) calling the DFPS Abuse Hotline toll-free telephone number, 1-800-252-5400; or

(B) using the DFPS Abuse Hotline website;

(2) take actions to secure the individual's safety;

(3) obtain immediate and ongoing medical or psychological services as necessary; and

(4) ensure an attendant or substitute attendant who knows or suspects that the individual is being or has been abused, neglected, or exploited, reports the allegation of abuse, neglect, or exploitation to DFPS immediately, but not later than 24 hours, after having knowledge or suspicion by:

(A) calling the DFPS Abuse Hotline toll-free telephone number, 1-800-252-5400; or

(B) using the DFPS Abuse Hotline website.

§44.443.Provider and Individual Responsibilities in the CDS Option Related to HHSC Investigations When an Alleged Perpetrator is an Attendant or Substitute Attendant.

(a) This section applies in the CDS option to alleged abuse, neglect, or exploitation by an attendant or substitute attendant:

(1) when an allegation is reported as required by §44.311(c) of this chapter (relating to Provider Responsibilities Related to the Abuse, Neglect, and Exploitation of an Individual in All CMPAS Service Delivery Options);

(2) when an allegation is reported as required by §44.442 of this division (relating to Individual Responsibilities in the CDS Option); or

(3) if a provider or individual is notified by HHSC of an allegation.

(b) An individual must:

(1) obtain immediate and ongoing medical or psychological services as necessary;

(2) take actions to secure the individual's safety, including if necessary, ensuring that the individual does not have contact with the alleged perpetrator until HHSC completes the investigation;

(3) preserve and protect any evidence related to the allegation, including timesheets and other employee-related documentation;

(4) cooperate with the investigation as requested by HHSC, including providing documentation and participating in an interview; and

(5) ensure that attendants or substitute attendants comply with paragraphs (3) and (4) of this subsection.

(c) A provider must:

(1) preserve and protect any evidence related to the allegation, including timesheets and other employee-related documentation;

(2) cooperate with the investigation as requested by HHSC, including providing documentation and participating in an interview; and

(3) ensure that staff persons and controlling persons comply with paragraphs (1) and (2) of this subsection.

(d) A provider who receives an initial intake report for an allegation of abuse, neglect, or exploitation described in subsection (a) of this section, must:

(1) within four working days after receiving the report, convene an IDT meeting in person or by phone to review the report and discuss the actions the individual has taken or will take to protect the individual during the HHSC investigation, which may include having an attendant or substitute attendant other than the alleged perpetrator provide services;

(2) document in writing any actions that have been or will be taken as a result of the allegation; and

(3) if appropriate, offer the individual the choice of receiving services through the traditional service option and consider a suspension of services as described in §44.308 of this chapter (relating to Suspension of Services) if the individual does not choose the traditional service option.

(e) After a provider receives the final investigative report from HHSC for an allegation of abuse, neglect, or exploitation described in subsection (a) of this section, the provider must:

(1) within four working days after receiving the report, if the report confirms the allegation, contains an inconclusive finding, or includes concerns and recommendations by HHSC:

(A) convene an IDT meeting in person or by phone to discuss the content of the report, including any concerns and recommendations by HHSC; and

(B) document in writing any actions that have been or will be taken by the individual as a result of the findings in the report or the concerns and recommendations by HHSC;

(2) within five working days after receiving the report:

(A) use the report to complete Form 1719, Notification of Investigatory Findings; and

(B) send the completed form to the alleged perpetrator;and

(3) if appropriate, offer the individual the choice of receiving services through the traditional service option and consider a suspension of services as described in §44.308 of this chapter if the individual does not choose the traditional service option.

(f) A provider must maintain in an individual's record an initial intake report and a final investigative report received from HHSC and a completed Form 1719.

§44.444.Provider and Individual Responsibilities in the CDS Option Related to HHSC Investigations When an Alleged Perpetrator is a Staff Person or a Controlling Person of a Provider.

(a) This section applies in the CDS option to an allegation of abuse, neglect, or exploitation by a staff person or a controlling person:

(1) when the allegation is reported as required by §44.311(c) of this chapter (relating to Provider Responsibilities Related to the Abuse, Neglect, and Exploitation of an Individual in All CMPAS Service Delivery Options);

(2) when the allegation is reported as required by §44.442 of this division (relating to Individual Responsibilities in the CDS Option); or

(3) if a provider or individual is notified by HHSC of an allegation.

(b) A provider must:

(1) 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 receiving services from the provider until HHSC completes the investigation; and

(2) preserve and protect any evidence related to the allegation.

(c) During an HHSC investigation of an alleged perpetrator who is a staff person or controlling person:

(1) a provider must:

(A) cooperate with the investigation as requested by HHSC, including providing documentation and participating in an interview;

(B) provide HHSC access to:

(i) sites owned, operated, or controlled by the provider;

(ii) individuals, staff persons, and controlling persons; and

(iii) records pertinent to the investigation of the allegation; and

(C) ensure that staff persons and controlling persons comply with subparagraphs (A) and (B) of this paragraph; and

(2) an individual must:

(A) cooperate with the investigation as requested by HHSC, including providing documentation and participating in an interview;

(B) provide HHSC access to:

(i) attendants and substitute attendants; and

(ii) records pertinent to the investigation of the allegation; and

(C) ensure that attendants and substitute attendants comply with subparagraph (A) of this paragraph.

(d) Within four working days after receiving an initial intake report for an allegation described in subsection (a) of this section, a provider must:

(1) convene an IDT meeting in person or by phone to discuss the report and the actions the individual has taken or will take to protect the individual during the HHSC investigation; and

(2) document in writing any actions that have been or will be taken as a result of the allegation.

(e) After a provider receives a final investigative report from HHSC for an investigation described in subsection (a) of this section, the provider must:

(1) within four working days after receiving the report, if the report confirms the allegation, contains an inconclusive finding, or includes concerns and recommendations by HHSC:

(A) convene an IDT meeting in person or by phone to discuss the content of the report, including any concerns and recommendations by HHSC; and

(B) document in writing any actions that have been or will be taken by the individual as a result of the findings in the report or the concerns and recommendations by HHSC; and

(2) within five working days after receipt of the report:

(A) use the report to complete Form 1719, Notification of Investigatory Findings; and

(B) send the completed form to the alleged perpetrator; and

(3) take appropriate action within the provider's authority in response to the HHSC investigation, including, when warranted, disciplinary action against a staff person confirmed to have committed abuse, neglect, or exploitation.

(f) A provider must maintain in an individual's record an initial intake report and a final investigative report received from HHSC and a completed Form 1719.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900499

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-5645


SUBCHAPTER E. ADDITIONAL PROGRAM REQUIREMENTS

40 TAC §§44.502, 44.504, 44.505

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code §531.0055 which authorizes the executive commissioner to adopt rules governing the delivery of services to persons served by the health and human services system.

The amendments implement Texas Government Code §531.0055.

§44.502.Convening an IDT [Interdisciplinary Team].

(a) An IDT must include:

(1) the individual[, the individual's representative, or both];

(2) a provider representative; and

(3) other persons [as necessary or] as requested by the individual.

(b) A [The] provider must convene an IDT meeting [by telephone conference call or in person within five working days after]:

(1) within five working days after:

(A) an individual accepts the provider's offer for an informal dispute resolution process due to a service plan or co-payment disagreement as described in §44.206 of this chapter (relating to Service Plan and Co-payment Disagreements);

(B) the provider determines it cannot provide services to an individual for any of the health and safety reasons described in §44.301(c)(2) - (4) of this chapter (relating to Initiation of Services); or

(C) the provider identifies the need to discuss with the individual a service delivery issue that prevents the provider from carrying out a provider responsibility described in this chapter;

(2) as described in §44.308(e) of this chapter (relating to Suspension of Services); or P> (3) as described in §44.443 of this chapter (relating to Provider and Individual Responsibilities in the CDS Option Related to HHSC Investigations When an Alleged Perpetrator is an Attendant or Substitute Attendant) and §44.444 of this chapter (relating to Provider and Individual Responsibilities in the CDS Option Related to HHSC Investigations When an Alleged Perpetrator is a Staff Person or a Controlling Person of a Provider).

[(1) suspending or terminating services to an individual under §44.308 of this chapter (relating to Suspension of Services) or §44.309 of this chapter (relating to Termination of Services);]

[(2) identifying an issue that prevents the provider from carrying out a requirement of the CMPAS Program; or]

[(3) at the request of the individual to mediate service plan or co-payment disagreements as provided for in §44.206 of this chapter (relating to Service Plan and Co-payment Disagreements).]

(c) If a [the] provider is unable to convene an IDT meeting with all the members described in subsection (a) of this section, the provider must:

(1) convene the IDT meeting with the available members; [and]

(2) send documentation of t e IDT meeting to the individual; and [.]

(3) document in the individual's record the provider's efforts to convene an IDT meeting with all the members described in subsection (a) of this section.

(d) The IDT must:

(1) meet by telephone conference call or in person;

[(1) evaluate the problem, ensuring that the problem is not due to discrimination in violation of law;]

(2) discuss the specific reason for conducting the IDT meeting;

(3) [(2)] identify any possible solutions to resolve the specific reason for the meeting [the problem]; and

(4) [(3)] make recommendations to the provider and the individual.

(e) Within two working days after an IDT meeting, a [The] provider must[, within two working days after the IDT meeting]:

(1) document:

(A) the specific reason for calling the IDT meeting;

(B) the names of the IDT members attending the meeting;

(C) the recommendations of the IDT to the provider and the individual; and

(D) the actions to be taken or that have been taken by the provider or the individual; [the outcome of the IDT meeting and keep the documentation in the individual's record; and]

(2) provide a written copy of the documentation to the individual; and

(3) notify the individual of the right to request a fair hearing, as provided by §44.503 of this subchapter (relating to Fair Hearing), if an action to be taken or that has been taken by the provider denies, reduces, or terminates the individual's services. [if the individual is not satisfied with the meeting outcome.]

§44.504.Records.

(a) General requirements. A [The] provider must develop and maintain records in accordance with [according to]:

(1) this chapter; and

(2) Chapter 49, Subchapter C, of this title (relating to Requirements of a Contractor). [Contracting for Community Care Services);]

[(3) Chapter 69 of this title (relating to Contract Services);]

[(4) the terms of the contract; and]

[(5) the provider's policy.]

(b) Service delivery documentation. A [The ] provider must develop and maintain service delivery records as described in this subsection [of the services delivered to the individual, including records relating to disagreements, suspensions, and termination of services].

(1) A provider must: [An individual must periodically record on a time sheet the attendant's delivery of services to the individual and must submit a copy of each completed time sheet to the provider. Each time sheet must be a single document that contains:]

(A) maintain for each individual the attendant time sheets an individual submits to the provider as required in §44.307(5) of this chapter (relating to Individual Responsibilities in All CMPAS Service Delivery Options);

(B) ensure that each attendant time sheet is a single document that contains:

(i) [(A)] the name of the individual;

(ii) [(B)] the name of the attendant who provided services to the individual;

(iii) [(C)] the beginning and ending dates of the service delivery period;

(iv) [(D)] the specific days and times the attendant worked;

(v) [(E)] the signature of the attendant, or another person designated by the attendant, [if the provider documents the reason the attendant was unable to complete or sign the time sheet and the name of the person the attendant authorized to sign the time sheet for the attendant,] and the date signed; and

(vi) [(F)] the signature of the individual, [or] representative, or another person designated by the individual or representative, [if the provider documents the reason the individual or representative was unable to sign the time sheet and the name of the person the individual or representative authorized to sign the time sheet for the individual,] and the date signed to certify the time worked and verify the services performed by the attendant [verifying the performance and time] as documented on the time sheet; [.]

(C) ensure that if another person signs and dates an attendant's time sheet for the attendant, the provider documents the reason the attendant is unable to complete or sign the time sheet and the name of the person the attendant authorized to sign the time sheet for the attendant; and

(D) ensure that if another person signs and dates an attendant's timesheet for an individual or representative, the provider documents the reason the individual or representative was unable to sign the time sheet and the name of the person the individual or representative authorized to sign the time sheet for the individual or representative.

(2) A provider must develop and maintain records to demonstrate the provider's compliance with:

(A) §44.203 of this subchapter (relating to Assessment and Eligibility Determination);

(B) §44.206 of this chapter (relating to Service Plan and Co-payment Disagreements);

(C) §44.308 of this chapter (relating to Suspension of Services);

(D) §44.309 of this chapter (relating to Termination of Services);

(E) §44.501 of this subchapter (relating to Determining an Individual's Co-Payment); and

(F) §44.502 of this subchapter (relating to Convening an IDT).

[(2) The provider must document any suspension or termination of services, and any IDT meeting held under §44.502 of this subchapter (relating to Convening an Interdisciplinary Team), and must include in the documentation:]

[(A) the reason for the IDT meeting;]

[(B) the recommendation of the IDT resulting from the meeting; and]

[(C) the provider's response to the IDT recommendations.]

[(3) The provider must document any service plan disagreement and must maintain documentation of the procedures it follows under §44.206 of this chapter (relating to Service Plan and Co-payment Disagreements) to resolve the disagreement.]

[(4) The provider must document and maintain documentation of visit by an assessor of need performed in accordance with §44.203 of this chapter (relating to Assessment and Eligibility Determination).]

(c) Financial records. A [The] provider must, in accordance with generally accepted accounting principles (GAAP) and HHSC requirements, document and maintain financial records:

(1) to support claims submitted to HHSC and payments received from HHSC [its billings to DADS for payment under §44.505 of this subchapter (relating to Reimbursement)]; and

(2) to support each individual's co-payment as calculated by the provider in accordance with [assessor of need under] §44.501 of this subchapter (relating to Determining an Individual's Co-payment), including documentation to support income, exclusions and deductions. [;]

[(3) to document reimbursements made by DADS, with records that must include:]

[(A) the amount of reimbursement;]

[(B) the voucher number;]

[(C) the warrant number;]

[(D) the date of receipt; and]

[(E) any other information necessary to trace deposits of reimbursements and payments made from the reimbursements in the provider's accounting system; and]

[(4) in accordance with generally accepted accounting principles (GAAP) and DADS procedures.]

(d) Required financial records. A provider's financial records must include:

(1) the amount of payments received from HHSC, including:

(A) the voucher number;

(B) the warrant number;

(C) the date of receipt; and

(D) any other information necessary to trace deposits of payments received and payments made from the payments received in the provider's accounting system;

(2) [(1)] deposit slips, bank statements, cancelled checks, and receipts;

(3) [(2)] purchase orders;

(4) [(3)] invoices;

(5) [(4)] journals and ledgers;

(6) [(5)] time sheets, payroll, and tax records;

(7) [(6)] Internal Revenue Service, Department of Labor, and other required governmental financial [government] records [and forms];

(8) [(7)] records of insurance coverage, claims, and payments, including [(for example,] medical, liability, fire and casualty, and workers' compensation records [)];

(9) [(8)] equipment inventory records;

(10) [(9)] records of the provider's internal accounting procedures;

(11) [(10)] a chart of accounts, as defined by GAAP; and

(12) [(11)] records of company policies.

(e) Subcontractor records. If a provider uses a subcontractor, the provider must maintain records of the subcontractor's activities in accordance with §49.308 of this title (relating to Subcontracts). The provider must maintain records to support subcontractor claims.

(f) Failure to maintain records. If a [the ] provider fails to maintain records in accordance with this section [or other applicable DADS requirements], HHSC [DADS] may initiate a corrective action plan and [may] pursue any appropriate sanction against the provider.

§44.505.Reimbursement.

(a) General billing requirements. A provider must submit to HHSC a claim [bill DADS] for services provided to an individual in accordance with §49.311 [§49.41 ] of this title (relating to [Billings and] Claims Payment).

(b) Billing requirements relating to attendant tasks. A provider must bill HHSC:

(1) only for the allowable tasks described in §44.304 of this chapter (relating to Allowable and Unallowable Tasks) that comprise services actually delivered to an individual in accordance with the individual's service plan authorized by HHSC;

(2) in accordance with the hourly rate negotiated by HHSC; and

(3) for attendant tasks in quarter-hour increments, meaning that:

(A) time worked that is not an exact quarter-hour must be rounded up to a quarter-hour if it is eight minutes or more; and

(B) time worked that is less than eight minutes must not be billed.

[(b) Hourly rate. The provider must bill DADS in accordance with the hourly rate negotiated by DADS.]

[(c) Documentation. The provider must comply with §44.504 of this subchapter (relating to Records) to be eligible for reimbursement from DADS.]

[(d) Rounding. The provider must bill DADS for services in quarter-hour increments. Time worked that is not an exact quarter-hour must be rounded up to a quarter-hour if it is eight minutes or more, or not billed if it is less than eight minutes.]

[(e) Allowable tasks. The provider must bill DADS only for the allowable tasks described in §44.304 of this chapter (relating to Allowable and Unallowable Tasks) that comprise services actually delivered to an individual in accordance with the individual's service plan. A provider must not bill DADS for services provided to an individual, through agreement with the individual or otherwise, if DADS did not authorize the services.]

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900501

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-5645


CHAPTER 45. COMMUNITY LIVING ASSISTANCE AND SUPPORT SERVICES AND COMMUNITY FIRST CHOICE (CFC) SERVICES

As required by Texas Government Code, §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all of its functions were transferred to the Health and Human Services Commission (HHSC) in accordance with Texas Government Code, §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1 govern functions previously performed by DADS that have transferred to HHSC. Texas Government Code, §531.0055, requires the executive commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, including rules in Title 40, Part 1. Therefore, the executive commissioner of HHSC proposes amendments to §45.103, §45.201, §§45.212 - §45.214, §45.216, §45.221, §45.223, §45.225, §45.403, §45.405, §45.406, §45.702, §45.704, §45.707, §45.802, §45.804, and §45.807; new §45.226, §45.227, §45.706, §45.708, §45.709, §45.810, and §45.811; and the repeal of §45.706, in Title 40, Part 1, Chapter 45, Community Living Assistance and Support Services and Community First Choice (CFC) Services.

BACKGROUND AND PURPOSE

Chapter 45, Community Living Assistance and Support Services and Community First Choice (CFC) Services, governs the Community Living Assistance and Support Services (CLASS) Program. The CLASS Program is a Medicaid waiver program approved by the Centers for Medicare & Medicaid Services (CMS) under §1915(c) of the Social Security Act. It provides community-based services and supports to an eligible individual as an alternative to services provided in an institutional setting through the Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions (ICF/IID) Program. "Direct services," as defined in Chapter 45, are provided by a CLASS direct services agency (DSA) that contracts with HHSC and holds a home and community support services agency (HCSSA) license. Case management services are provided by a CLASS case management agency (CMA) that contracts with HHSC.

One of the purposes of the proposed rules is to address adjustments to the investigatory process for abuse, neglect, and exploitation as a result of amendments to Texas Human Resources Code, Chapter 48, and Texas Family Code, Chapter 261, effective September 1, 2015. The amendments gave the Department of Family and Protective Services (DFPS) Adult Protective Services (APS) Provider Investigation (PI) Program the authority to investigate an allegation of abuse, neglect or exploitation of an individual in the CLASS Program when the alleged perpetrator is a staff person, service provider, volunteer, or controlling person of a CMA or DSA. Effective September 1, 2017, in accordance with Texas Government Code, §531.02011 and §531.02013, the functions performed by the DFPS APS PI Program were transferred to HHSC. The proposed rules address investigations of allegations of abuse, neglect, and exploitation conducted by HHSC for an individual in the CLASS Program and describe requirements for the CMA and DSA to protect an individual from abuse, neglect, and exploitation and help ensure the health, safety, and welfare of an individual who is abused, neglected, or exploited.

The proposed rules also include the current requirements in Texas Administrative Code, Title 40, (40 TAC) §49.310, Abuse, Neglect, and Exploitation Allegations, that apply to a CMA and DSA. Rules in 40 TAC Chapter 49, Contracting for Community Services, are proposed for amendment in this issue of the Texas Register to exclude the CLASS Program from §49.310. These rules are proposed in Chapter 45 to use terminology specific to the CLASS Program, add specificity to the current requirements of §49.310, and add new requirements for a CMA and DSA. For example, the proposed rules require a CMA and DSA to (1) conduct training of staff persons, service providers, and volunteers related to abuse, neglect, and exploitation according to specified time frames; (2) ensure that the persons who are trained are knowledgeable about signs and symptoms of abuse, neglect, or exploitation; and (3) educate an individual and legally authorized representative (LAR) or person actively involved with the individual about protecting the individual from abuse, neglect, and exploitation.

The proposed rules require a CMA and DSA to report critical incidents to HHSC to address the CMS requirement that HHSC have an incident management system in place to help ensure an individual's health and welfare.

In response to direction from CMS to help meet the requirement in the Code of Federal Regulations, Title 42 (42 CFR), §441.302(b) regarding financial accountability, the proposed rules require a program provider to ensure that, after a CMA case manager or a DSA service provider completes an HHSC Documentation of Services Delivered form, that a staff person other than the case manager or service provider who completed the form signs and dates the form as a timekeeper as verification of the accuracy of the information on the form.

In response to direction from CMS to meet the requirement in 42 CFR §441.302(c)(2), regarding reevaluations of an individual's level of care (LOC), the proposed rules require a DSA to have and implement written policies and procedures to ensure the DSA complies with the requirement to submit to HHSC, at least 60 calendar days before the expiration of an individual's individual plan of care (IPC) period, the documentation HHSC needs to determine whether an individual continues to meet the required LOC. The proposed rules require a DSA's written policies and procedures to include using a written or electronic tracking system that alerts the DSA to activities that must occur for the DSA to timely submit the documentation to HHSC. The proposed rules also replace "diagnostic eligibility" with "LOC VIII" throughout the chapter to conform with the terms used in the eligibility criteria for the CLASS Program described in 40 TAC §9.239.

In response to direction from CMS to meet the requirement in 42 CFR §441.301(c)(3), regarding reviews of an individual's service plan, the proposed rules require a CMA to have and implement written policies and procedures to ensure the CMA complies with the requirement to submit to HHSC, at least 30 calendar days before the end of the individual's IPC period, the documentation HHSC needs to determine whether the individual's IPC will be authorized. The proposed rules also require a CMA's written policies and procedures to include using a written or electronic tracking system that alerts the CMA to activities that must occur for the CMA to timely submit the documentation to HHSC.

The proposed rules address a CMS requirement that, if an individual's LOC VIII expires before HHSC determines whether the individual meets the LOC VIII criteria, or an individual's IPC period expires before HHSC authorizes a proposed renewal IPC, the CMA and the DSA must continue to provide services to the individual until HHSC authorizes the proposed renewal IPC to ensure continuity of care and prevent the individual's health and welfare from being jeopardized.

In response to direction from CMS to meet the requirement in 42 CFR, §441.302(d), the proposed rules require a CMA to at least annually, after enrollment, obtain the signature of the individual or LAR on a Waiver Program Verification of Freedom of Choice form documenting the individual's or LAR's choice of the CLASS Program over the ICF/IID Program.

The proposed rules require a service provider of CFC personal assistance services/habilitation (PAS/HAB) to have training in cardiopulmonary resuscitation (CPR) and choking prevention so that the service provider is prepared and qualified to assist an individual who needs CPR.

The proposed rules require a CMA and DSA to electronically access the Medicaid Eligibility Service Authorization Verification (MESAV) system to determine if the information on an individual's enrollment IPC, revision IPC, or renewal IPC authorized by HHSC is consistent with the information in MESAV and, if inconsistent, to notify HHSC of the inconsistency. The purpose of this requirement is to help prevent billing discrepancies and payment adjustments that result from inaccurate information being entered into MESAV.

The proposed rules also update agency names and replace specific website addresses.

SECTION-BY-SECTION SUMMARY

The proposed amendments change "DADS" to "HHSC" throughout Chapter 45 to reflect that DADS was abolished effective September 1, 2017, and functions have transferred to HHSC.

The proposed amendment to §45.103, Definitions, adds a definition for "abuse," "alleged perpetrator," "exploitation," "neglect," "physical abuse," "sexual abuse," "sexual activity," "sexual exploitation," and "verbal or emotional abuse" because those terms are related to abuse, neglect, and exploitation. The proposed amendment adds a definition for "controlling person" and "volunteer" because those terms are related to abuse, neglect, and exploitation and to safeguarding an individual against conflicts of interest, acts of financial impropriety, and damage of personal possessions. The proposed amendment adds a definition for "LOC--Level of care" to use instead of "diagnostic eligibility," a term not defined but used in other sections of Chapter 45. The use of "LOC" is consistent with the eligibility criteria described in 40 TAC §9.239, one of the eligibility criterion for the CLASS Program as stated in §45.201(a)(2). The proposed amendment adds a definition for "MESAV-- Medicaid Eligibility Service Authorization Verification," a new term used in the chapter. The proposed amendment makes clarifying changes in the definition for "adaptive behavior level," "adaptive behavior screening assessment," "CMS," "HHSC," "own home or family home," and "seclusion." The proposed amendment moves "CLASS Program" to its correct alphabetical position. The proposed amendment defines the "Department of Assistive and Rehabilitative Services" as "The Texas Workforce Commission" and changes the definition of "DADS" to reflect the consolidation of the health and human services agencies. The proposed amendment deletes the definition for "ICF/MR," a term no longer used in the chapter. The proposed amendment also updates agency names and references to rules and websites and makes minor editorial changes.

The proposed amendment to §45.201, Eligibility Criteria for CLASS Program Services and CFC Services, replaces "diagnostic eligibility" with "LOC VIII." The proposed amendment deletes the condition of eligibility in subsection §45.201(a)(3) that an individual must be diagnosed with a related condition that manifested before the individual was 22 years of age, because this condition is already included in the eligibility criteria in 40 TAC §9.239, as referenced in §45.201(a)(2). The proposed amendment also updates references to rules and websites and makes a minor editorial change.

The proposed amendment to §45.212, Process for Enrollment of an Individual, requires that, at the CMA face-to-face visit with an individual during enrollment, the case manager explain to the individual and LAR or person actively involved with the individual that an allegation of abuse, neglect or exploitation is reported to DFPS by calling the toll-free telephone number at 1-800-252-5400 and that a complaint is made by calling the HHSC Ombudsman Office telephone number at 1-877-787-8999. The DFPS telephone number is added because DFPS is responsible for the intake of all reports alleging abuse, neglect, or exploitation of an individual and the HHSC Ombudsman Office telephone number is added because, in accordance with 40 TAC §49.309, Complaint Process, the Ombudsman Office is handling complaints related to CMAs. The proposed amendment also requires that a CMA, at the face-to-face visit, educate the individual and LAR or person actively involved with the individual about protecting the individual from abuse, neglect, and exploitation to help ensure the health and safety of the individual. The proposed amendment also requires that, at the DSA face-to-face visit with an individual during enrollment, the DSA explain to the individual and LAR or person actively involved with the individual that an allegation of abuse, neglect or exploitation is reported to DFPS by calling the DFPS toll-free telephone number and that a complaint is made by calling the HHSC Consumer Rights and Services toll-free telephone number at 1-800-458-9858. The HHSC Consumer Rights and Services telephone number is added because, in accordance with 40 TAC §49.309, the Consumer Rights and Services Office is handling complaints related to DSAs. The proposed amendment also requires that a DSA, at the face-to-face visit, educate the individual and LAR or person actively involved with the individual about protecting the individual from abuse, neglect, and exploitation. The proposed amendment relocates within the section the requirement for a program provider not to provide services to an individual until notified by HHSC that the individual's request for enrollment has been approved. The proposed amendment requires a CMA and DSA to electronically access the MESAV system to determine if the information on an individual's enrollment IPC authorized by HHSC is consistent with the information in MESAV and, if inconsistent, to notify HHSC of the inconsistency. The proposed amendment requires a CMA to comply with §45.216(f) and (g), if HHSC notifies the CMA that the request for enrollment is approved but a CLASS Program or CFC service is being denied, instead of including the specific activities in §45.212. The proposed amendment also updates terminology regarding LOC, adds and updates references, and makes minor editorial changes.

The proposed amendment to §45.213, Determination of Diagnostic Eligibility by DADS, requires a DSA to submit information requested by HHSC related to an individual's LOC VIII criteria within 10 calendar days after the date of the request to help ensure that HHSC can complete its review of the criteria in a timely manner. The proposed amendment also states that the LOC VIII is effective on a date determined by HHSC instead of being effective the date HHSC receives the completed ID/RC Assessment. This change is consistent with current practice which allows HHSC staff to make the LOC effective on a date other than the date of receipt of the ID/RC Assessment if, for example, the individual's Medicaid eligibility is not established when the assessment is submitted. The proposed amendment reformats a portion of the section and makes editorial changes for clarity. The proposed amendment also changes the section title and updates terminology and rule references.

The proposed amendment to §45.214, Development of Enrollment IPC, requires, at the service planning team (SPT) meeting convened by a case manager to develop an individual's proposed enrollment IPC, that the SPT review the CLASS/DBMD Nursing Assessment form completed by the RN; address any information included in Addendum E of the form regarding recommendations by the RN; and document on the CLASS/DBMD Coordination of Care form how the information in Addendum E was addressed. This change is proposed to help ensure the SPT addresses any health and safety concerns identified by the RN when developing an individual's IPC and IPP. The proposed amendment requires the case manager to send the proposed enrollment IPC and other specified enrollment documents to the DSA to help ensure that the DSA has the necessary information to provide CLASS Program services to an individual after HHSC authorizes the IPC. The proposed amendment deletes rule language regarding HHSC's review of a proposed enrollment IPC because this process is included in §45.216. The proposed amendment updates terminology and rule references and makes minor editorial changes.

The proposed amendment to §45.216, DADS Review of an Enrollment IPC, requires the individual's case manager to notify the individual or LAR of HHSC's approval of the request for enrollment and, to replace a provision deleted from §45.214, requires the case manager to send the specified enrollment documents to the DSA and, if the individual will receive a service through the CDS option, to the FMSA. The proposed amendment also requires a CMA to comply with §45.403(c) if HHSC notifies the CMA of the denial of a CLASS Program or CFC service, instead of including the specific activities in §45.216. Further, the proposed amendment requires a CMA and DSA to electronically access the MESAV system to determine if the information on an individual's enrollment IPC authorized by HHSC is consistent with the information in MESAV and, if inconsistent, to notify HHSC of the inconsistency. The proposed amendment updates references and makes minor editorial changes.

The proposed amendment to §45.221, Annual Review and Reinstatement of Diagnostic Eligibility, requires that, if an individual's LOC VIII expires before HHSC determines whether the individual meets the LOC VIII criteria, the CMA and the DSA continue to provide services to the individual until HHSC authorizes the proposed renewal IPC to ensure continuity of care and prevent the individual's health and welfare from being jeopardized. The proposed amendment also describes how HHSC will reimburse the CMA and DSA for services provided while the LOC VIII was expired, if HHSC determines that the individual meets the LOC VIII criteria and the individual is otherwise eligible for the CLASS Program. The proposed amendment deletes language relating to a request for reinstatement of an individual's diagnostic eligibility because effective November 15, 2015, a DSA is not required to submit such a request. The proposed amendment also changes the title of rule and makes minor editorial changes.

The proposed amendment to §45.223, Renewal and Revision of an IPC, requires, at the SPT meeting convened by a case manager for renewal of an individual's IPC, that the SPT review the CLASS/DBMD Nursing Assessment form completed by the RN; address any information included in Addendum E of the form regarding recommendations by the RN; and document on the CLASS/DBMD Coordination of Care form how the information in Addendum E was addressed. This change is proposed to help ensure the SPT addresses any health and safety concerns identified by the RN when developing a renewal IPC and IPP. The proposed amendment requires the case manager to send a copy of the proposed renewal or proposed revised IPC and other specified documents to the DSA to help ensure that the DSA has the necessary information to provide CLASS Program services to an individual. Further, the proposed amendment requires a CMA and DSA to electronically access the MESAV system to determine if the information on an individual's renewal or revised IPC authorized by HHSC is consistent with the information in MESAV and, if inconsistent, to notify HHSC of the inconsistency. The proposed amendment requires that, if an individual's IPC period expires before HHSC authorizes a proposed renewal IPC, the CMA and the DSA continue to provide services to the individual until HHSC authorizes the proposed renewal IPC to ensure continuity of care and prevent the individual's health and welfare from being jeopardized. The proposed amendment also describes how HHSC will reimburse the CMA and DSA for services provided during the time the IPC period was expired, if HHSC authorizes the IPC. The proposed amendment also updates references and makes minor editorial changes.

The proposed amendment to §45.225, Utilization Review of an IPC by DADS, requires a CMA and DSA to comply with the requirement in §45.403 to electronically access the MESAV system to determine if the information on an individual's renewal or revised IPC authorized by HHSC is consistent with the information in MESAV and, if inconsistent, to notify HHSC of the inconsistency. The proposed amendment also updates references and makes minor editorial changes.

Proposed new §45.226, Tracking Annual Renewal of an ID/RC Assessment by a DSA, requires a DSA to have and implement written policies and procedures to ensure the DSA complies with the requirement in §45.221 to submit to HHSC, at least 60 calendar days before the expiration of an individual's IPC period, the documentation HHSC needs to determine whether an individual continues to meet the required LOC. The proposed rule also requires a DSA's written policies and procedures to include using a written or electronic tracking system that alerts the DSA to activities that must occur for the DSA to timely submit the documentation to HHSC.

Proposed new §45.227, Tracking Annual Renewal of an IPC by a CMA, requires a CMA to have and implement written policies and procedures to ensure the CMA complies with the requirement in §45.223 to submit to HHSC, at least 30 calendar days before the expiration of an individual's IPC period, the documentation HHSC needs to determine whether an individual's IPC will be authorized. The proposed rule also requires a CMA's written policies and procedures to include using a written or electronic tracking system that alerts the DSA to activities that must occur for the CMA to timely submit the documentation to HHSC.

The proposed amendment to §45.403, Denial of a CLASS Program Service or CFC Service, requires a CMA to send a copy of a modified IPC to the DSA and, if the individual receives a service through the CDS option, to the FMSA, so that the modified IPC may be implemented. This addition replaces the requirement that the CMA coordinate the implementation of a modified IPC because the CMA, DSA, and FMSA are all responsible for implementing an IPC. The proposed amendment requires a CMA and DSA to electronically access the MESAV system to determine if the information on an individual's modified IPC is consistent with the information in MESAV and, if inconsistent, to notify HHSC of the inconsistency. The proposed amendment also updates references and makes minor editorial changes.

The proposed amendment to §45.405, Reduction of a CLASS Program Service or CFC Service, requires a CMA to send a copy of a modified IPC to the DSA and, if the individual receives a service through the CDS option, to the FMSA, so that the modified IPC may be implemented. The proposed amendment requires a CMA and DSA to, if an individual or LAR does not request a fair hearing before the effective date of the reduction of a CLASS Program service or CFC service, electronically access the MESAV system to determine if the information on an individual's modified IPC is consistent with the information in MESAV and, if inconsistent, to notify HHSC of the inconsistency. The proposed amendment also updates references and makes minor editorial changes.

The proposed amendment to §45.406, Termination of CLASS Program Services and CFC Services With Advance Notice Because of Ineligibility or Leave from the State or Because DSAs Cannot Ensure Health and Safety, updates references.

The proposed amendment to §45.702, Protection of Individual, Initial and Annual Explanations, and Offering Access to Other Services, requires a CMA to have written policies and procedures to safeguard an individual against conflicts of interest with and deliberate damage of personal possessions by a volunteer and a controlling person of the CMA. This addition is to help ensure the health and welfare of an individual. A CMA is already required to have such policies regarding a staff person of the CMA. The proposed amendment also requires a CMA to have written policies and procedures to safeguard an individual against abuse, neglect, and exploitation. The proposed amendment requires a case manager to educate the individual and LAR or person actively involved with the individual about protecting the individual from abuse, neglect, and exploitation to help ensure the health and safety of the individual. The proposed amendment requires the CMA to, at least annually, obtain the signature of the individual or LAR on a Waiver Program Verification of Freedom of Choice form documenting the individual's or LAR's choice of the CLASS Program over the ICF/IID Program. The proposed amendment requires a CMA, in accordance with the CLASS Provider Manual, to report critical incidents to HHSC and the DSA using the CLASS/DBMD Notification of Critical Incidents form. A CMA is required to report an incident to the DSA to make the DSA aware of the occurrence and prevent the DSA from submitting a duplicate report to HHSC. The proposed amendment requires a CMA to ensure that a program director who receives a copy of an HHSC initial intake report or a final investigative report from an FMSA, gives a copy of the report to the individual's case manager so that the case manager can perform functions related to those reports as required by 40 TAC Chapter 41 (relating to Consumer Directed Services Option). The proposed amendment also updates a reference and makes minor editorial changes.

The proposed amendment to §45.704, Training of CMA Staff Persons, requires a CMA staff person, instead of just a case manager, to complete training on the CLASS Program and CFC to help ensure the protection of individuals from abuse, neglect, and exploitation. The proposed amendment requires a CMA to ensure that CMA staff persons and volunteers (1) are trained on and knowledgeable of acts that constitute, signs and symptoms of, and methods to prevent abuse, neglect, and exploitation; (2) are instructed to call the DFPS Abuse Hotline or use the DFPS Abuse Hotline website to report to DFPS immediately, but not later than 24 hours after having knowledge or suspicion, that an individual has been or is being abused, neglected, or exploited; and (3) are provided the instructions, in writing. For a CMA staff person or volunteer hired before September 1, 2018, the CMA must conduct these activities within one year after the person's most recent training on abuse, neglect, and exploitation and annually thereafter. For a CMA staff person or volunteer hired on or after September 1, 2018, the CMA must conduct these activities before assuming job duties and annually thereafter. The requirement for a CMA to conduct the activities within one year after a person's most recent training, or by September 1, 2018, is consistent with a requirement included in an information letter. The proposed amendment also includes requirements for the CMA regarding documentation of the training.

Proposed new §45.706, CMA Documentation of Services Delivered and Recordkeeping, describes the information that must be documented when a case manager provides case management. The proposed rule includes the current requirement that a case manager complete an HHSC Documentation of Services Delivered form to document the provision of case management. The proposed rule requires that a CMA ensure that, after a case manager makes the last entry on an HHSC Documentation of Services Delivered form, a staff person other than the case manager who completed the form signs and dates the form as a timekeeper as verification of the accuracy of the information on the form. The proposed rule requires a CMA to maintain a separate record for each individual receiving case management from the CMA and lists certain documents to be kept in the record that were not listed in the version of §45.706 proposed for repeal. The proposed rule requires a CMA to keep in the record any IPC authorized for the current IPC period, in addition to the individual's current IPC; any IPP developed for the current IPC period, in addition to the individual's current IPP; the individual's current Waiver Program Verification of Freedom of Choice form documenting the individual's or LAR's choice of the CLASS Program over the ICF/IID Program; the individual's current Selection Determination form documenting the individual's or LAR's choice of a CMA and DSA; documentation made by a case manager when case management is provided; and the completed HHSC Documentation of Services Delivered forms signed and dated by a timekeeper as required by §45.706(b).

The proposed repeal of §45.706, CMA Recordkeeping, deletes the current requirements for recordkeeping by a CMA.

The proposed amendment to §45.707, CMA: Quality Management Process, requires a CMA to, at least annually, review all final investigative reports from HHSC in which the alleged perpetrator is a staff person, volunteer, or controlling person of a CMA, and, based on the review, identify program process improvements that help prevent the occurrence of abuse, neglect, and exploitation and improve the delivery of case management services. The proposed amendment requires a CMA to evaluate critical incident data and identify program process improvements that help prevent the occurrence of critical incidents and improve service delivery.

Proposed new §45.708, CMA: Reporting Allegations of Abuse, Neglect, or Exploitation of an Individual, requires a CMA, if the CMA, staff person, volunteer, or controlling person of the CMA knows or suspects an individual is being or has been abused, neglected, or exploited, to 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 24 hours after having knowledge or suspicion, by calling the DFPS Abuse hotline or using the DFPS Abuse Hotline website.

Proposed new §45.709, CMA: Requirements Related to the Abuse, Neglect, and Exploitation of an Individual, describes the actions that a CMA must take, if necessary, to support and protect an individual if a report required by §45.708 is made. The proposed rule requires the CMA, during an HHSC investigation of an alleged perpetrator who is a staff person, volunteer, or controlling person of a CMA, to cooperate with the investigation; provide HHSC access to sites, individuals, staff persons, volunteers, controlling persons, and pertinent records; and ensure that staff persons, volunteers, and controlling persons of the CMA comply with these requirements. The proposed rule describes the actions a CMA must take after the CMA receives a final investigative report from HHSC for an investigation in which the alleged perpetrator is a staff person, volunteer, or controlling person of a CMA, including taking appropriate action within the CMA's authority to prevent the reoccurrence of abuse, neglect or exploitation. The proposed rule also includes requirements regarding the CMA's notifying the individual and LAR of the investigation finding and taking action in response to the HHSC investigation. The proposed rule also prohibits a CMA from retaliating against a staff person, 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; or 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 the individual.

The proposed amendment to §45.802, DSA: Protection of Individuals, requires a DSA to have written policies and procedures to safeguard an individual against conflicts of interest with a volunteer and a controlling person of the DSA. This addition is to help ensure the health and welfare of an individual. A DSA is already required to have such a policy regarding a staff person of the DSA. The proposed amendment also clarifies that the written policies and procedures currently required to safeguard an individual against financial impropriety and deliberate damage of personal possessions pertain to a service provider, staff person, volunteer, or controlling person of the DSA. The proposed amendment requires a DSA to, at least annually, provide an oral and written explanation to an individual, LAR, or person actively involved with the individual of how to report an allegation of abuse, neglect or exploitation and how to file a complaint about CLASS Program services or CFC services. The proposed amendment also requires the DSA to, at least annually, educate the individual and LAR or person actively involved with the individual about protecting the individual from abuse, neglect, and exploitation to help ensure the health and safety of the individual. The proposed amendment requires a DSA, in accordance with the CLASS Provider Manual, to report critical incidents to HHSC and the CMA using the CLASS/DBMD Notification of Critical Incidents form. A DSA is required to report an incident to the CMA to make the CMA aware of the occurrence and prevent the CMA from submitting a duplicate report to HHSC.

The proposed amendment to §45.804, Training of DSA Staff Persons, deletes subsection (a)(2) of this section that a DSA staff person complete training on the CLASS Program and CFC because this requirement is addressed in subsection (a)(1) which requires a DSA staff person who has direct contact with an individual to complete training as described in the CLASS Provider Manual. The proposed amendment requires a service provider of CFC PAS/HAB to complete training in CPR and choking prevention that includes an in-person evaluation by a qualified instructor of the service provider's ability to perform these actions. The proposed amendment requires a DSA to ensure that DSA service providers, staff persons, and volunteers (1) are trained on and knowledgeable of acts that constitute, signs and symptoms of, and methods to prevent abuse, neglect, and exploitation; (2) are instructed to call the DFPS Abuse hotline or use the DFPS Abuse Hotline website to report to DFPS immediately, but not later than 24 hours after having knowledge or suspicion, that an individual has been or is being abused, neglected, or exploited; and (3) are provided the instructions, in writing. For a DSA service provider, staff person, or volunteer hired before September 1, 2018, the DSA must conduct these activities within one year after the person's most recent training on abuse, neglect, and exploitation and annually thereafter. For a DSA service provider, staff person, or volunteer hired on or after September 1, 2018, the DSA must conduct these activities before assuming job duties and annually thereafter. The requirement for a DSA to conduct the activities within one year after a person's most recent training, or by September 1, 2018, is consistent with a requirement included in an information letter. The proposed amendment also includes requirements for the DSA regarding documentation of the training and changes the title of the rule.

The proposed amendment to §45.807, DSA: Systems and Recordkeeping, in accordance with current practice, excepts certain services from the requirement that specific information be documented when a service provider provides a direct service. The proposed amendment includes the current requirement that a service provider complete an HHSC Documentation of Services Delivered form to document the provision of a direct service. The proposed amendment requires that a DSA ensure that, after a service provider makes the last entry on an HHSC Documentation of Services Delivered form, a staff person other than the service provider who completed the form signs and dates the form as a timekeeper as verification of the accuracy of the information on the form. To provide more specificity about recordkeeping, the proposed rule requires a DSA to keep in an individual's record a copy of any IPC authorized for the current IPC period, in addition to a copy of the individual's current IPC; a copy of any IPP developed for the current IPC period, in addition to a copy of the individual's current IPP; the original ID/RC Assessment, signed by a physician or, if applicable, the original level of care form signed by a physician prior to use of the ID/RC Assessment form, in addition to a copy of the individual's current ID/RC Assessment; the documentation made by a service provider when a direct service is provided; and the completed HHSC Documentation of Services Delivered forms. The proposed amendment reorganizes the sequence of information in the section and changes the title of the section.

Proposed new §45.810, DSA: Reporting Allegations of Abuse, Neglect, or Exploitation of an Individual, requires a DSA, if the DSA, service provider, staff person, volunteer, or controlling person of the DSA knows or suspects an individual is being or has been abused, neglected, or exploited, to 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 24 hours after having knowledge or suspicion, by calling the DFPS Abuse hotline or using the DFPS Abuse Hotline website.

Proposed new §45.811, DSA: Requirements Related to the Abuse, Neglect, and Exploitation of an Individual, describes the actions that a DSA must take, if necessary, to support and protect an individual if a report required by §45.810 is made. The proposed rule requires the DSA, during an HHSC investigation of an alleged perpetrator who is a service provider, staff person, volunteer, or controlling person of a DSA, to cooperate with the investigation; provide HHSC access to sites, individuals, staff persons, volunteers, controlling persons, and pertinent records; and ensure that service providers, staff persons, volunteers, and controlling persons of the DSA comply with these requirements. The proposed rule describes the actions a DSA must take after the DSA receives a final investigative report from HHSC for an investigation in which the alleged perpetrator is a service provider, staff person, volunteer, or controlling person of a DSA, including taking appropriate action within the DSA's authority to prevent the reoccurrence of abuse, neglect or exploitation. The proposed rule includes requirements regarding the DSA's notifying the individual, the LAR, and the case manager of the investigation finding and taking action in response to the HHSC investigation. The proposed rule also prohibits a DSA from retaliating against a service provider, staff person, 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; or 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 the individual. Further, the proposed rule requires a DSA to 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. The proposed amendment requires a DSA to evaluate critical incident data and identify program process improvements that help prevent the occurrence of critical incidents and improve service delivery.

FISCAL NOTE

Ms. Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that for each year of the first five years that the sections will be in effect, there will be no effect on costs and revenues of state or local governments as a result of enforcing and administering the sections as proposed.

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

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

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

(3) implementation of the proposed rules will not require an increase or decrease in future legislative appropriations;

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

(5) the proposed rules will create a new rule;

(6) the proposed rules will expand an existing rule;

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

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

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

Ms. Greta Rymal, Deputy Executive Commissioner for Financial Services, has also determined that there will be an adverse economic effect on CMAs and DSAs that are small businesses or micro-businesses. A CMA and DSA may incur a cost for providing training related to abuse, neglect, and exploitation; revising their abuse, neglect, and exploitation policies and procedures; and revising any written information that must be provided to an individual or their staff related to abuse, neglect, or exploitation. A DSA may incur a cost of approximately $89 for a two-year certification in CPR and choking prevention for a service provider of CFC PAS/HAB to complete training in CPR and choking prevention. A CMA and DSA may incur a cost for reporting critical incidents to HHSC and annually evaluating any incidents reported. HHSC lacks the sufficient data to estimate the number of CMAs and DSAs designated as a small business or micro-business that would be impacted by the proposed rules.

HHSC determined that alternative methods to achieve the purpose of the proposed rules for small businesses or micro-businesses would not be consistent with ensuring the health and safety of individuals receiving services in the CLASS Program.

Ms. Rymal has determined that there will not be an adverse economic effect on rural communities because there is no rural community that contracts with HHSC as a DSA or CMA.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There is an anticipated economic costs to persons who are required to comply with the sections as proposed. A CMA and DSA may incur a cost for paying staff to complete any new training related to abuse, neglect, and exploitation, for revising their policies and procedures, and for revising any written information that must be provided to an individual or their staff related to abuse, neglect, or exploitation. A DSA may incur a cost of approximately $89 for a two-year certification in CPR and choking prevention for a service provider of CFC PAS/HAB to complete training in CPR and choking prevention. A CMA and DSA may incur a cost for reporting critical incidents to HHSC and annually evaluating any incidents reported. HHSC lacks sufficient data to estimate these costs.

There is no anticipated negative impact on local employment.

COSTS TO REGULATED PERSONS

Texas Government Code, §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas and to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT

Stephanie Muth, State Medicaid Director, has determined that for each year of the first five years the sections are in effect, the public will benefit from adoption of the sections. The public benefit anticipated as a result of enforcing or administering the sections will be an improved system that identifies, addresses, and seeks to prevent abuse, neglect, and exploitation, and provides greater protections for individuals in the CLASS Program who are subjected to abuse, neglect, and exploitation. Other anticipated public benefits are a critical incident reporting system to help ensure the health and welfare of individuals; the provision of services to individuals after the expiration of LOCs or IPCs to protect their health and welfare; CFC PAS/HAB service providers who are trained in CPR and choking prevention; and more timely authorizations of IPCs and greater financial accountability by HHSC.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

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

To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday. Therefore, comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed by midnight on the last day of the comment period. When emailing comments, please indicate "Comments on Proposed Rule 40R015" in the subject line.

SUBCHAPTER A. GENERAL PROVISIONS

40 TAC §45.103

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendment implements Texas Government Code, §531.0055, §531.021, and Texas Human Resources Code, §32.021.

§45.103.Definitions.

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

(1) Abuse--

(A) physical abuse;

(B) sexual abuse; or

(C) verbal or emotional abuse.

(2) [(1)] Actively involved--Significant, ongoing, and supportive involvement with an individual by a person, as determined by the individual, based on the person's:

(A) interactions with the individual;

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

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

(3) [(2)] Adaptive aid--An item or service that enables an individual to retain or increase the ability to perform ADLs or perceive, control, or communicate with the environment in which the individual lives, and:

(A) is included in the list of adaptive aids in the CLASS Provider Manual; or

(B) is the repair and maintenance of an adaptive aid on such list that is not covered by a warranty.

(4) [(3)] Adaptive behavior--The effectiveness with or degree to which an individual meets the standards of personal independence and social responsibility expected of the individual's age and cultural group as assessed by a standardized measure.

(5) [(4)] Adaptive behavior level--The categorization of an individual's functioning level based on a standardized measure of adaptive behavior. There are four adaptive behavior [Four] levels [are used] ranging from mild limitations in adaptive skills (I) through profound limitations in adaptive skills (IV).

(6) [(5)] Adaptive behavior screening assessment--A standardized assessment used to determine an individual's adaptive behavior level, and conducted using the current version of one of the following assessment instruments:

(A) American Association of Intellectual and Developmental Disabilities (AAIDD) Adaptive Behavior Scales (ABS);

(B) Inventory for Client and Agency Planning (ICAP);

(C) Scales of Independent Behavior [--Revised (SIB-R)]; or

(D) Vineland Adaptive Behavior Scales [, Second Edition (Vineland-II)].

(7) [(6)] ADLs--Activities of daily living. Basic personal everyday activities, including tasks such as eating, toileting, grooming, dressing, bathing, and transferring.

(8) [(7)] Alarm call--A signal transmitted from an individual's CFC ERS equipment to the CFC ERS response center indicating that the individual needs immediate assistance.

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

(10) [(8)] Aquatic therapy--A service that involves a low-risk exercise method done in water to improve an individual's range of motion, flexibility, muscular strengthening and toning, cardiovascular endurance, fitness, and mobility.

(11) [(9)] Auditory integration training/auditory enhancement training--Specialized training that assists an individual to cope with hearing dysfunction or over-sensitivity to certain frequency ranges of sound by facilitating auditory processing skills and exercising the middle ear and auditory nervous system.

(12) [(10)] Behavior support plan--A comprehensive, individualized written plan based on a current functional behavior assessment that includes specific objectives and behavioral techniques designed to teach or increase adaptive skills and decrease or eliminate target behaviors.

(13) [(11)] Behavioral support--Specialized interventions that assist an individual in increasing adaptive behaviors and replacing or modifying challenging or socially unacceptable behaviors that prevent or interfere with the individual's inclusion in the community and which consist of the following activities:

(A) conducting a functional behavior assessment;

(B) developing an individualized behavior support plan;

(C) training of and consultation with an individual, family member, or other persons involved in the individual's care regarding the implementation of the behavior support plan;

(D) monitoring and evaluation of the effectiveness of the behavior support plan;

(E) modifying, as necessary, the behavior support plan based on monitoring and evaluation of the plan's effectiveness; and

(F) counseling with and educating an individual, family members, or other persons involved in the individual's care about the techniques to use in assisting the individual to control challenging or socially unacceptable behaviors.

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

(15) [(13)] Case management--A service that assists an individual in the following:

(A) assessing the individual's needs;

(B) enrolling into the CLASS Program;

(C) developing the individual's IPC;

(D) coordinating the provision of CLASS Program services and CFC services;

(E) monitoring the effectiveness of the CLASS Program services and CFC services and the individual's progress toward achieving the outcomes identified for the individual;

(F) revising the individual's IPC, as appropriate;

(G) accessing non-CLASS Program services and non-CFC services;

(H) resolving a crisis that occurs regarding the individual; and

(I) advocating for the individual's needs.

(16) [(14)] Catchment area--As determined by HHSC [DADS], a geographic area composed of multiple Texas counties.

(17) [(15)] CDS option--Consumer directed services option. A service delivery option as defined in §41.103 of this title (relating to Definitions).

(18) [(16)] CDSA--FMSA.

(19) [(17)] CFC--Community First Choice.

(20) [(18)] CFC ERS--CFC emergency response services. 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.

(21) [(19)] CFC ERS provider--The entity directly providing CFC ERS to an individual, which may be the DSA or a contractor of the DSA.

(22) [(20)] CFC FMS--The term used for FMS on the IPC of an individual if the individual receives only CFC PAS/HAB through the CDS option.

(23) [(21)] CFC PAS/HAB--CFC personal assistance services/habilitation. A service:

(A) that consists of:

(i) personal assistance services that provide assistance to an individual in performing ADLs and 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 in 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 provides assistance to 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.

(24) [(22)] CFC support consultation--The term used for support consultation on the IPC of an individual if the individual receives only CFC PAS/HAB through the CDS option.

(25) [(23)] CFC support management--Training on how to select, manage, and dismiss an unlicensed service provider of CFC PAS/HAB as described in the CLASS Provider Manual.

(26) CLASS Program--The Community Living Assistance and Support Services Program.

(27) [(24)] CMA--Case management agency. A program provider that has a contract with HHSC [DADS] to provide case management.

[(25) CLASS Program--The Community Living Assistance and Support Services Program.]

(28) [(26)] CMS--The Centers for Medicare & [and] Medicaid Services. CMS is the agency within the United States Department of Health and Human Services that administers Medicare and Medicaid programs.

(29) [(27)] Cognitive rehabilitation therapy--A service that:

(A) assists an individual in learning or relearning cognitive skills that have been lost or altered as a result 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.

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

(31) [(29)] Continued family services--Services provided to an individual 18 years of age or older who resides with a support family, as described in §45.531 of this chapter (relating to Support Family Requirements), that allow the individual to reside successfully in a community setting by training the individual to acquire, retain, and improve self-help, socialization, and daily living skills or assisting the individual with ADLs. The individual must be receiving support family services immediately before receiving continued family services. Continued family services consist of services described in §45.533 of this chapter (relating to Support Family Duties).

(32) [(30)] Contract--A provisional contract that HHSC [DADS] enters into in accordance with §49.208 of this chapter (relating to Provisional Contract Application Approval) that has a stated expiration date or a standard contract that HHSC [DADS] enters into in accordance with §49.209 of this chapter (relating to Standard Contract) that does not have a stated expiration date.

(33) 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;

(C) is a partner in a partnership 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.

(34) [(31)] DADS--HHSC [The Department of Aging and Disability Services].

(35) [(32)] Denial--An action taken by HHSC [DADS] that:

(A) rejects an individual's request for enrollment into the CLASS Program;

(B) disallows a CLASS Program service or a CFC service requested on an IPC that was not authorized on the prior IPC; or

(C) disallows a portion of the amount or level of a CLASS Program service or a CFC service requested on an IPC that was not authorized on the prior IPC.

(36) [(33)] Dental treatment--A service that:

(A) consists of the following:

(i) emergency dental treatment, which is procedures necessary to control bleeding, relieve pain, and eliminate acute infection; operative procedures that are required to prevent the imminent loss of teeth; and treatment of injuries to the teeth or supporting structures;

(ii) routine preventative dental treatment, which is examinations, x-rays, cleanings, sealants, oral prophylaxes, and topical fluoride applications;

(iii) therapeutic dental treatment, which includes fillings, scaling, extractions, crowns, pulp therapy for permanent and primary teeth; restoration of carious permanent and primary teeth; maintenance of space; and limited provision of removable prostheses when masticatory function is impaired, when an existing prosthesis is unserviceable, or when aesthetic considerations interfere with employment or social development;

(iv) orthodontic dental treatment, which is procedures that include treatment of retained deciduous teeth; cross-bite therapy; facial accidents involving severe traumatic deviations; cleft palates with gross malocclusion that will benefit from early treatment; and severe, handicapping malocclusions affecting permanent dentition with a minimum score of 26 as measured on the Handicapping Labio-lingual Deviation Index; and

(v) dental sedation, which is sedation necessary to perform dental treatment including non-routine anesthesia, (for example, intravenous sedation, general anesthesia, or sedative therapy prior to routine procedures) but not including administration of routine local anesthesia only; and

(B) does not include cosmetic orthodontia.

(37) Department of Assistive and Rehabilitative Services--The Texas Workforce Commission.

(38) [(34)] Dietary services--The provision of nutrition services, as defined in Texas Occupations Code, Chapter 701.

(39) [(35)] Direct services--The following services:

(A) CLASS Program services other than case management, FMS, support consultation, support family services, continued family services, and [or] transition assistance services; and

(B) CFC PAS/HAB, CFC ERS, and CFC support management.

(40) [(37)] DFPS--The Department of Family and Protective Services.

(41) [(36)] DSA--Direct services agency. A program provider that has a contract with HHSC [DADS] to provide direct services.

(42) [(38)] Employment assistance--Assistance provided to an individual to help the individual locate competitive employment in the community.

(43) [(39)] Enrollment IPC--The first IPC developed for an individual upon enrollment into the CLASS Program.

(44) 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.

(45) [(40)] FMS--Financial management services. A service, as defined in §41.103 of this title, that is provided to an individual participating in the CDS option.

(46) [(41)] FMSA--Financial management services agency. An entity, as defined in §41.103 of this title, that provides FMS.

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

(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.

(48) [(43)] Functional behavior assessment--An evaluation that is used to determine the underlying function or purpose of an individual's behavior, so an effective behavior support plan can be developed.

(49) [(44)] Good cause--As determined by HHSC [DADS], a reason outside the control of the CFC ERS provider.

(50) [(45)] Habilitation--A service that allows an individual to reside successfully in a community setting by training the individual to acquire, retain, and improve self-help, socialization, and daily living skills or assisting the individual with ADLs. Habilitation services consist of the following:

(A) habilitation training, which is interacting face-to-face with an individual who is awake to train the individual in the following activities:

(i) self-care;

(ii) personal hygiene;

(iii) household tasks;

(iv) mobility;

(v) money management;

(vi) community integration;

(vii) use of adaptive equipment;

(viii) management of caregivers;

(ix) personal decision making;

(x) interpersonal communication;

(xi) reduction of challenging behaviors;

(xii) socialization and the development of relationships;

(xiii) participating in leisure and recreational activities;

(xiv) use of natural supports and typical community services available to the public;

(xv) self-administration of medication; and

(xvi) strategies to restore or compensate for reduced cognitive skills;

(B) habilitation ADLs, which are:

(i) interacting face-to-face with an individual who is awake to assist the individual in the following activities:

(I) self-care;

(II) personal hygiene;

(III) ambulation and mobility;

(IV) money management;

(V) community integration;

(VI) use of adaptive equipment;

(VII) self-administration of medication;

(VIII) reinforce any therapeutic goal of the individual;

(IX) provide transportation to the individual; and

(X) protect the individual's health, safety and security;

(ii) interacting face-to-face or by telephone with an individual or an involved person regarding an incident that directly affects the individual's health or safety; and

(iii) performing one of the following activities that does not involve interacting face-to-face with an individual:

(I) shopping for the individual;

(II) planning or preparing meals for the individual;

(III) housekeeping for the individual;

(IV) procuring or preparing the individual's medication; or

(V) arranging transportation for the individual; and

(C) habilitation delegated, which is tasks delegated by a registered nurse to a service provider of habilitation in accordance with 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) or Chapter 225 (relating to RN Delegation to Unlicensed Personnel and Tasks Not Requiring Delegations In Independent Living Environments For Clients With Stable and Predictable Conditions).

(51) [(46)] 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 an 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.

(52) [(47)] HHSC--The Texas Health and Human Services Commission.

(53) [(48)] Hippotherapy--The provision of therapy that:

(A) involves an individual interacting with and riding on horses;

(B) is designed to improve the balance, coordination, focus, independence, confidence, and motor and social skills of the individual; and

(C) is provided by two service providers at the same time, as described in §45.803(d)(11) of this chapter (relating to Qualifications of DSA Staff Persons).

(54) [(49)] IADLs--Instrumental activities of daily living. 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.

(55) [(50)] ICF/IID--Intermediate care facility for individuals with an intellectual disability or related conditions. An ICF/IID is a facility in which ICF/IID Program services are provided and that is:

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

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

(56) [(51)] 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.

[(52) ICF/MR--ICF/IID.]

(57) [(53)] ID/RC Assessment--Intellectual Disability/Related Conditions Assessment. A form used by HHSC [DADS] to determine the LOC [level of care] for an individual.

(58) [(54)] Individual--A person seeking to enroll or who is enrolled in the CLASS Program.

(59) [(55)] Institutional services--Medicaid-funded services provided in a nursing facility licensed in accordance with Texas Health and Safety Code, Chapter 242, or in an ICF/IID.

(60) [(56)] Intellectual disability--Consistent with Texas Health and Safety Code, §591.003, significantly sub-average general intellectual functioning existing concurrently with deficits in adaptive behavior and originating during the developmental period (0-18 years of age).

(61) [(57)] IPC--Individual plan of care. A written plan developed by an individual's service planning team using person-centered planning and documented on an HHSC [a DADS] form that:

(A) meets:

(i) the requirement described in §45.201(a)(4) [§45.201(a)(5)] of this chapter (relating to Eligibility Criteria for CLASS Program Services and CFC Services); and

(ii) the requirements described in §45.214(a)(1)(E) [§45.214(a)(1)(B)] and (b) of this chapter (relating to Development of Enrollment IPC); and

(B) is authorized by HHSC [DADS] in accordance with Subchapter B of this chapter (relating to Eligibility, Enrollment, and Review).

(62) [(58)] IPC cost--The estimated annual cost of CLASS Program services on an IPC.

(63) [(59)] IPC period--The effective period of an enrollment IPC and a renewal IPC as follows:

(A) for an enrollment IPC, the period of time from the effective date of an enrollment IPC, as described in §45.214(g) [§45.214(h)] of this chapter, until the first calendar day of the same month of the effective date in the following year; and

(B) for a renewal IPC, a 12-month period of time starting on the effective date of a renewal IPC as described in §45.222(b) of this chapter (relating to Renewal IPC and Requirement for Authorization to Continue Services).

(64) [(60)] IPP--Individual program plan. A written plan documented on an HHSC [a DADS] form that describes the goals and objectives to be met by the provision of each CLASS Program service and CFC service, other than CFC support management, on an individual's IPC that:

(A) are supported by justifications;

(B) are measurable; and

(C) have timelines.

(65) [(61)] LAR--Legally authorized representative. A person authorized by law to act on behalf of an individual with regard to a matter described in this chapter, and may include a parent, guardian, or managing conservator of a minor, or the guardian of an adult.

(66) [(62)] Licensed vocational nurse--A person licensed to provide vocational nursing in accordance with Texas Occupations Code, Chapter 301.

(67) [(63)] Licensed vocational nursing--The provision of vocational nursing, as defined in Texas Occupations Code, Chapter 301.

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

(69) [(64)] Managed care organization--This term has the meaning set forth in Texas Government Code, §536.001.

(70) [(65)] MAO Medicaid--Medical Assistance Only Medicaid. A type of Medicaid by which an individual qualifies financially for Medicaid assistance but does not receive Supplemental Security Income (SSI) benefits.

(71) [(66)] Massage therapy--The provision of massage therapy as defined in Texas Occupations Code, Chapter 455.

(72) [(67)] Medicaid--A program administered by CMS and funded jointly by the states and the federal government that pays for health care to eligible groups of low-income people.

(73) [(68)] Medicaid waiver program--A service delivery model authorized under §1915(c) of the Social Security Act in which certain Medicaid statutory provisions are waived by CMS.

(74) MESAV--Medicaid Eligibility Service Authorization Verification. The automated system that contains information regarding an individual's Medicaid eligibility and service authorizations.

(75) [(69)] 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.

(76) [(70)] Military member--A member of the United States military serving in the Army, Navy, Air Force, Marine Corps, or Coast Guard 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.

(77) [(71)] Minor home modification--A physical adaptation to an individual's residence that is necessary to address the individual's specific needs and that enables the individual to function with greater independence in the individual's residence or to control his or her environment and:

(A) is included on the list of minor home modifications in the CLASS Provider Manual; or

(B) except as provided by §45.618(c) of this chapter (relating to Repair or Replacement of Minor Home Modification), is the repair and maintenance of a minor home modification purchased through the CLASS Program that is needed after one year has elapsed from the date the minor home modification is complete and that is not covered by a warranty.

(78) [(72)] Music therapy--The use of musical or rhythmic interventions to restore, maintain, or improve an individual's social or emotional functioning, mental processing, or physical health.

(79) [(73)] Natural supports--Unpaid persons, including family members, volunteers, neighbors, and friends, who assist and sustain an individual.

(80) 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.

(81) [(74)] Nursing facility--A facility that is licensed in accordance with Texas Health and Safety Code, Chapter 242.

(82) [(75)] Occupational therapy--The provision of occupational therapy, as described in Texas Occupations Code, Chapter 454.

(83) [(76)] Own home or family home--A residence that is not:

(A) an ICF/IID;

(B) a nursing facility licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 242;

(C) an assisted living facility licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 247;

(D) a residential child-care operation licensed or subject to being licensed by DFPS unless it is a foster family home or a foster group home;

(E) a facility licensed or subject to being licensed by the Department of State Health Services;

(F) a residential facility operated by the Texas Workforce Commission [Department of Assistive and Rehabilitative Services];

(G) a residential facility operated by the Texas Juvenile Justice Department [Youth Commission], a jail, or prison; or

(H) a setting in which two or more dwellings, including units in a duplex or apartment complex, single family homes, or facilities listed in subparagraphs (A) - (G) of this paragraph, but excluding supportive housing under Section 811 of the National Affordable Housing Act of 1990, meet all of the following criteria:

(i) the dwellings create a residential area distinguishable from other areas primarily occupied by persons who do not require routine support services because of a disability;

(ii) most of the residents of the dwellings are individuals with an intellectual disability, a related condition, or a physical disability; and

(iii) the residents of the dwellings are provided routine support services through personnel, equipment, or service facilities shared with the residents of the other dwellings.

(84) [(77)] PAS/HAB plan--Personal Assistance Services (PAS)/Habilitation (HAB) Plan. A written plan developed by an individual's service planning team and documented on an HHSC [a DADS] form that describes the type and frequency of CFC PAS/HAB activities to be performed by a service provider.

(85) [(78)] Person-centered planning--A process that empowers the individual (and the LAR on the individual's behalf) to direct the development of an IPC that meets the individual's outcomes. The process:

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

(B) identifies natural supports available to the individual and negotiates needed services and supports;

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

(D) accommodates the individual's style of interaction and preferences regarding time and setting.

(86) 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 not in compliance with federal and state laws, rules, and regulations; or

(D) seclusion.

(87) [(79)] Physical therapy--The provision of physical therapy, as defined in Texas Occupations Code, Chapter 453.

(88) [(80)] Physician--Based on the definition in §97.2 of this title (relating to Definitions), a person who:

(A) is licensed in Texas to practice medicine or osteopathy in accordance with Texas Occupations Code, Chapter 155;

(B) is licensed in Arkansas, Louisiana, New Mexico, or Oklahoma to practice medicine, who is the treating physician of an individual, and orders home health for the individual in accordance with the Texas Occupations Code, §151.056(b)(4); or

(C) is a commissioned or contract physician or surgeon who serves in the United States uniformed services or Public Health Service if the person is not engaged in private practice, in accordance with the Texas Occupations Code, §151.052(a)(8).

(89) [(81)] Prevocational services--Services that are not job-task oriented and are provided to an individual who the service planning team does not expect to be employed (without receiving supported employment) within one year after prevocational services are to begin, to prepare the individual for employment. Prevocational services consist of:

(A) assessment of vocational skills an individual needs to develop or improve upon;

(B) individual and group instruction regarding barriers to employment;

(C) training in skills:

(i) that are not job-task oriented;

(ii) that are related to goals identified in the individual's PAS/HAB plan;

(iii) that are essential to obtaining and retaining employment, such as the effective use of community resources, transportation, and mobility training; and

(iv) for which an individual is not compensated more than 50 percent of the federal minimum wage or industry standard, whichever is greater;

(D) training in the use of adaptive equipment necessary to obtain and retain employment; and

(E) transportation between the individual's place of residence and prevocational services work site when other forms of transportation are unavailable or inaccessible.

(90) [(82)] Program provider--A DSA or a CMA.

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

(92) [(84)] Recreational therapy--Recreational or leisure activities that assist an individual to restore, remediate, or habilitate the individual's level of functioning and independence in life activities, promote health and wellness, and reduce or eliminate the activity limitations caused by an illness or disabling condition.

(93) [(85)] Reduction--An action taken by HHSC [DADS] as a result of a review of a revised IPC or renewal IPC that decreases the amount or level of a service authorized by HHSC [DADS] on the prior IPC.

(94) [(86)] Registered nurse--A person licensed to provide professional nursing in accordance with Texas Occupations Code, Chapter 301.

(95) [(87)] Registered nursing--The provision of professional nursing, as defined in Texas Occupations Code, Chapter 301.

(96) [(88)] Related condition--As defined in the Code of Federal Regulations (CFR), Title 42, §435.1010, 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 22 years of age;

(C) is likely to continue indefinitely; and

(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.

(97) [(89)] 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 CLASS Provider Manual.

(98) [(90)] Renewal IPC--An IPC developed for an individual in accordance with §45.223 of this chapter (relating to Renewal and Revision of an IPC) because the IPC will expire within 90 calendar days.

(99) [(91)] Respite--The temporary assistance with an individual's ADLs if the individual has the same residence as a person who routinely provides such assistance and support to the individual, and the person is temporarily unavailable to provide such assistance and support.

(A) If the person who routinely provides assistance and support, resides with the individual, and is temporarily unavailable to provide assistance and support, is a service provider of habilitation or CFC PAS/HAB or an employee in the CDS option of habilitation or CFC PAS/HAB, HHSC [DADS] does not authorize respite unless:

(i) the service provider or employee routinely provides unpaid assistance and support with ADLs to the individual;

(ii) the amount of respite does not exceed the amount of unpaid assistance and support routinely provided; and

(iii) the service provider of respite or employee in the CDS option of respite does not have the same residence as the individual.

(B) If the person who routinely provides assistance and support, resides with the individual, and is temporarily unavailable to provide assistance and support, is a service provider of support family services or continued family services, HHSC [DADS] does not authorize respite unless:

(i) for an individual receiving support family services, the individual does not receive respite on the same day the individual receives support family services;

(ii) for an individual receiving continued family services, the individual does not receive respite on the same day the individual receives continued family services; and

(iii) the service provider of respite or employee in the CDS option of respite does not have the same residence as the individual.

(C) Respite services consist of the following:

(i) interacting face-to-face with an individual who is awake to assist the individual in the following activities:

(I) self-care;

(II) personal hygiene;

(III) ambulation and mobility;

(IV) money management;

(V) community integration;

(VI) use of adaptive equipment;

(VII) self-administration of medication;

(VIII) reinforce any therapeutic goal of the individual;

(IX) provide transportation to the individual; and

(X) protect the individual's health, safety, and security;

(ii) interacting face-to-face or by telephone with an individual or an involved person regarding an incident that directly affects the individual's health or safety; and

(iii) performing one of the following activities that do not involve interacting face-to-face with an individual:

(I) shopping for the individual;

(II) planning or preparing meals for the individual;

(III) housekeeping for the individual;

(IV) procuring or preparing the individual's medication;

(V) arranging transportation for the individual; or

(VI) protecting the individual's health, safety, and security while the individual is asleep.

(100) [(92)] Responder--A person designated to respond to an alarm call activated by an individual.

(101) [(93)] Revised IPC--An enrollment IPC or a renewal IPC that is revised during an IPC period in accordance with §45.223 of this chapter to add a new CLASS Program service or CFC service or change the amount of an existing service.

(102) [(94)] Seclusion--The involuntary [separation of an individual away from other individuals and the] placement of an [the] individual alone in an area from which the individual is prevented from leaving.

(103) [(95)] Service planning team--A planning team convened and facilitated by a CLASS Program case manager consisting of the following persons:

(A) the individual;

(B) if applicable, the individual's LAR;

(C) the case manager;

(D) a representative of the DSA;

(E) other persons whose inclusion is requested by the individual or LAR and who agree to participate; and

(F) a person selected by the DSA, with the approval of the individual or LAR, who is:

(i) professionally qualified by certification or licensure and has special training and experience in the diagnosis and habilitation of persons with the individual's related condition; or

(ii) directly involved in the delivery of services and supports to the individual.

(104) [(96)] Service provider--A person who is an employee or contractor of a DSA who provides a direct service.

(105) 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 person, volunteer, or controlling person, unless a consensual sexual relationship with an adult individual existed before the service provider, staff person, volunteer, or controlling person became a service provider, staff person, volunteer, or controlling person. P> (106) Sexual activity--An activity that is sexual in nature, including kissing, hugging, stroking, or fondling with sexual intent.

(107) 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.

(108) [(97)] Specialized licensed vocational nursing--The provision of licensed vocational nursing to an individual who has a tracheostomy or is dependent on a ventilator.

(109) [(98)] Specialized registered nursing--The provision of registered nursing to an individual who has a tracheostomy or is dependent on a ventilator.

(110) [(100)] Specialized therapies--Services to promote skills development, maintain skills, decrease inappropriate behaviors, facilitate emotional well-being, create opportunities for socialization, or improve physical and medical status that consist of the following:

(A) aquatic therapy;

(B) hippotherapy;

(C) massage therapy;

(D) music therapy;

(E) recreational therapy; and

(F) therapeutic horseback riding.

(111) [(99)] Speech and language pathology--The provision of speech-language pathology, as defined in Texas Occupations Code, Chapter 401.

(112) [(101)] Staff person--A full-time or part-time employee of the program provider.

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

(114) [(103)] Support consultation--A service, as defined in §41.103 of this title, that may be provided to an individual who chooses to participate in the CDS option.

(115) [(105)] Support family services--Services provided to an individual under 18 years of age who resides with a support family, as described in §45.531 of this chapter, that allow the individual to reside successfully in a community setting by supporting the individual to acquire, maintain, and improve self-help, socialization, and daily living skills or assisting the individual with ADLs. Support family services consist of the services described in §45.533 of this chapter.

(116) [(104)] Supported employment--Assistance provided to sustain competitive employment to an individual who, because of a disability, requires intensive, ongoing support to be self-employed, work from home, or perform in a work setting at which individuals without disabilities are employed.

(117) [(106)] 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.

(118) [(107)] Target behavior--A behavior identified in a behavior support plan for reduction or elimination.

(119) [(109)] Temporary admission--Being admitted for 180 consecutive calendar days or less.

(120) [(108)] Therapeutic horseback riding--The provision of therapy that:

(A) involves an individual interacting with and riding on horses; and

(B) is designed to improve the balance, coordination, focus, independence, confidence, and motor and social skills of the individual.

(121) [(110)] Transition assistance services--In accordance with Chapter 62 of this title (relating to Transition Assistance Services), services provided to an individual who is receiving institutional services and is eligible for and enrolling into the CLASS Program.

(122) [(111)] Transportation plan--A written plan, based on person-centered planning and developed with an individual using the HHSC [DADS] Individual Transportation Plan form found on the HHSC website [at www.dads.state.tx.us]. A transportation plan is used to document how transportation will be delivered to support an individual's desired goals and objectives for transportation as identified in the IPP.

(123) 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.

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

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900479

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-3078


SUBCHAPTER B. ELIGIBILITY, ENROLLMENT, AND REVIEW

DIVISION 1. ELIGIBILITY AND MAINTENANCE OF INTEREST LIST

40 TAC §45.201

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendment implements Texas Government Code, §531.0055, §531.021, and Texas Human Resources Code, §32.021.

§45.201.Eligibility Criteria for CLASS Program Services and CFC Services.

(a) An individual is eligible for CLASS Program services if:

(1) the individual meets the financial eligibility criteria described in Appendix B of the CLASS Program waiver application approved by CMS and found on the HHSC website [at www.dads.state.tx.us];

(2) the individual is determined by HHSC [DADS] to meet the LOC VIII [diagnostic eligibility ] criteria [for the CLASS Program] as described in §9.239 of this title (relating to ICF/MR Level of Care VIII Criteria);

[(3) the individual has been diagnosed with a related condition that manifested before the individual was 22 years of age;]

(3) [(4)] the individual demonstrates a need for CFC PAS/HAB;

(4) [(5)] the individual has an IPC cost for CLASS Program services at or below $114,736.07;

(5) [(6)] the individual is not enrolled in another waiver program or receiving a service that may not be received if the individual is enrolled in the CLASS Program, as identified in the Mutually Exclusive Services table in Appendix III of the CLASS Provider Manual available on the HHSC website [at www.dads.state.tx.us];

(6) [(7)] the individual resides in the individual's own home or family home; and

(7) [(8)] the individual requires the provision of:

(A) at least one CLASS Program service per month or monthly monitoring; and

(B) at least one CLASS Program service during an IPC period.

(b) An individual is not considered to reside in the individual's own home or family home if the individual is admitted to one of the facilities listed in subparagraphs (A) - (G) in the definition of "own home or family home" in §45.103 [§45.103(76)(A) - (G)] of this chapter (relating to Definitions) for more than 180 consecutive calendar days.

(c) Except as provided in subsection (d) of this section, an individual is eligible for a CFC service under this chapter if the individual:

(1) meets the criteria described in subsections (a) and (b) of this section;

(2) requires the provision of the CFC service; and

(3) is not receiving support family services or continued family services.

(d) To be eligible for a CFC service under this chapter, an [An] individual receiving MAO Medicaid must, in addition to meeting the eligibility criteria described in subsection (c) of this section, receive a CLASS Program service at least monthly, as required by 42 CFR §441.510(d).

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900480

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-3078


DIVISION 2. ENROLLMENT PROCESS

40 TAC §§45.212 - 45.214, 45.216

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendments implement Texas Government Code, §531.0055, §531.021, and Texas Human Resources Code, §32.021.

§45.212.Process for Enrollment of an Individual.

(a) After notification by HHSC [DADS] that an individual selected a CMA as a program provider, the CMA must assign a case manager to perform the following functions within 14 calendar days after HHSC's [of DADS] notification to the CMA:

(1) verify that the individual resides in the catchment area for which the individual's selected CMA and DSA have a contract;

(2) conduct an initial face-to-face, in-home visit with the individual and LAR or person actively involved with the individual to:

(A) provide an oral and written explanation of the following to the individual and LAR or person actively involved with the individual:

(i) [(A)] CLASS Program services, including transition assistance services if the individual is receiving institutional services;

(ii) [(B)] CFC services;

(iii) [(C)] the eligibility requirements for:

(I) [(i)] CLASS Program services as described in §45.201(a) of this subchapter (relating to Eligibility Criteria for CLASS Program Services and CFC Services);

(II) [(ii)] CFC services as described in §45.201(c) of this subchapter to individuals who do not receive MAO Medicaid; and

(III) [(iii)] CFC services as described in §45.201(d) of this subchapter to individuals who receive MAO Medicaid;

(iv) [(D)] the mandatory participation requirements of an individual as described in §45.302 of this chapter (relating to Mandatory Participation Requirements of an Individual);

(v) [(E)] the CDS option as described in §45.217 of this division (relating to CDS Option);

(vi) [(F)] that CLASS Program services or CFC services may be terminated as described in §§45.406 - 45.409 of this chapter (relating to Termination of CLASS Program Services and CFC Services With Advance Notice Because of Ineligibility or Leave from the State or Because DSAs Cannot Ensure Health and Safety, Termination of CLASS Program Services and CFC Services With Advance Notice Because of Non-compliance With Mandatory Participation Requirements, Termination of CLASS Program Services and CFC Services Without Advance Notice, and Termination of CLASS Program Services and CFC Services Without Advance Notice Because of Behavior Causing Immediate Jeopardy);

(vii) [(G)] the right to request a fair hearing in accordance with §45.301 of this chapter (relating to Individual's Right to a Fair Hearing);

(viii) [(H)] that the individual and LAR or person actively involved with the individual may report an allegation of abuse, neglect, or exploitation to DFPS by calling the toll-free telephone number at 1-800-252-5400 [or make a complaint by calling DADS toll-free telephone number (1-800-458-9858)];

(ix) [(I)] the process by which the individual and LAR or person actively involved with the individual may file a complaint regarding case management as required by §49.309 of this title (relating to Complaint Process), and that the HHSC Office of the Ombudsman toll-free telephone number at 1-877-787-8999 may be used to file a complaint;

(x) [(J)] voter registration, if the individual is 18 years of age or older; and

(xi) [(K)] that while the individual is temporarily staying at a location outside the catchment area in which the individual resides, but within the state of Texas during a period of no more than 60 consecutive days, the individual and LAR or person actively involved with the individual may request that the DSA provide:

(I) [(i)] habilitation;

(II) [(ii)] out-of-home respite in a camp described in §45.806(b)(2)(D) of this chapter (relating to Respite and Dental Treatment);

(III) [(iii)] adaptive aids;

(IV) [(iv)] nursing; or

(V) [(v)] CFC PAS/HAB; and

(B) educate the individual and LAR or person actively involved with the individual about protecting the individual from abuse, neglect, and exploitation; and

(3) obtain the signature of the individual or LAR on a Waiver Program Verification of Freedom of Choice form documenting [designating] the individual's or LAR's choice of [for enrollment in] the CLASS Program over [enrollment in] the ICF/IID Program.

(b) The CMA must:

(1) within two business days of the case manager's face-to-face, in-home visit required by subsection (a)(2) of this section:

(A) collect and maintain the information necessary for the CMA and DSA to process the individual's request for enrollment into the CLASS Program in accordance with the CLASS Provider Manual; and

(B) provide the individual's selected DSA with the collected information required by subparagraph (A) of this paragraph;

(2) assist the individual or LAR in completing and submitting an application for Medicaid financial eligibility as required by §45.302(1) of this chapter (relating to Mandatory Participation Requirements of an Individual); and

(3) ensure that the case manager documents in the individual's record the progress toward completing a Medicaid application and enrollment into CLASS Program services.

(c) If an individual or LAR does not submit a Medicaid application to HHSC within 30 calendar days of the case manager's initial face-to-face, in-home visit as required by §45.302(1) of this chapter, but is making good faith efforts to complete the application, the CMA may extend, in 30-calendar day increments, the time frame in which the application must be submitted to HHSC, except as provided in paragraph (1) of this subsection.

(1) The CMA may not grant an extension that results in a time period of more than 365 calendar days from the date of the case manager's initial face-to-face, in-home visit.

(2) The CMA must ensure that the case manager documents each extension in the individual's record.

(d) If an individual or LAR does not submit a Medicaid application to HHSC as required by §45.302(1) of this chapter and is not making good faith efforts to complete the application, the CMA must request, in writing, that HHSC [DADS] withdraw the offer of a program vacancy made to the individual in accordance with §45.211(d)(3) of this division [subchapter ] (relating to Written Offer of CLASS Program Services).

(e) If DSAs serving the catchment area in which the individual resides are not willing to provide CLASS Program services or CFC services to an individual because they have determined that they cannot ensure the individual's health and safety, the CMA must provide to HHSC [DADS], in writing, the specific reasons the DSAs have determined that they cannot ensure the individual's health and safety.

(f) The case manager must determine whether an individual meets the following criteria:

(1) the individual is being discharged from a nursing facility or an ICF/IID;

(2) the individual has not previously received transition assistance services as described in §62.5(e) of this title (relating to Service Description);

(3) the individual's proposed enrollment IPC does not include support family services or continued family services; and

(4) the individual anticipates needing transition assistance services as described in §62.5(e) of this title.

(g) If the case manager determines that an individual meets the criteria described in subsection (f) of this section, the case manager must:

(1) provide the individual or LAR with a list of transition assistance services providers in the catchment area in which the individual will reside;

(2) complete, with the individual or LAR, the Transition Assistance Services (TAS) Assessment and Authorization form found on the HHSC website [at www.dads.state.tx.us] in accordance with the form's instructions, which includes:

(A) identifying the transition assistance services the individual needs as described in §62.5(e) of this title;

(B) estimating the monetary amount for each transition assistance service identified, which must be within the service limit described in §45.218(a)(4) of this division (relating to Service Limits); and

(C) documenting the individual's or LAR's choice of transition assistance services provider;

(3) submit the completed form to HHSC [DADS ] for authorization;

(4) send the form authorized by HHSC [DADS ] to the selected transition assistance services provider; and

(5) include the transition assistance services and the monetary amount authorized by HHSC [DADS] on the individual's proposed enrollment IPC.

(h) After notification by HHSC [DADS] that an individual selected the DSA as a program provider, the DSA must ensure that the following functions are performed during a face-to-face, in-home visit within 14 calendar days after the CMA provides information to the DSA as required by subsection (b)(1)(B) of this section:

(1) a DSA staff person:

(A) informs the individual and LAR or person actively involved with the individual, orally and in writing: [, of]

(i) that the individual, LAR, or person actively involved with the individual may report an allegation of abuse, neglect, or exploitation to DFPS by calling the toll-free telephone number at 1-800-252-5400; and

(ii) the process by which the individual, LAR, or person actively involved with the individual [they] may file a complaint regarding CLASS Program services or CFC services provided by the DSA as required by §49.309 of this title, and that the HHSC Consumer Rights and Services toll-free telephone number at 1-800-458-9858 may be used to file a complaint; and

(B) educates the individual and LAR or person actively involved with the individual about protecting the individual from abuse, neglect, and exploitation;

(2) an appropriate professional completes an adaptive behavior screening assessment in accordance with the assessment instructions; and

(3) a registered nurse, in accordance with the CLASS Provider Manual, completes:

(A) a nursing assessment using the HHSC [DADS ] CLASS/DBMD Nursing Assessment form;

(B) the HHSC [DADS] Related Conditions Eligibility Screening Instrument; and

(C) the ID/RC Assessment.

(i) A DSA must:

(1) ensure that the primary diagnosis of the individual [individual's condition] documented on the ID/RC Assessment is authorized by a physician;

(2) submit to HHSC [DADS:] for HHSC's [a DADS] decision regarding whether the individual meets the LOC VIII criteria required by §45.201(a)(2) of this subchapter (relating to Eligibility Criteria for CLASS Program Services and CFC Services) [the individual's diagnostic eligibility]:

(A) the completed adaptive behavior screening assessment;

(B) the completed HHSC [DADS] Related Conditions Eligibility Screening Instrument; and

(C) the completed ID/RC Assessment; and

(3) send the completed HHSC [DADS] CLASS/DBMD Nursing Assessment form described in subsection (h)(3)(A) of this section to the CMA.

(j) In accordance with §45.213 of this division (relating to Determination by HHSC of Whether an Individual Meets LOC VIII Criteria [Diagnostic Eligibility by DADS]), HHSC [DADS] reviews the documentation described in subsection (i)(2) of this section.

(k) If a DSA receives written notice from HHSC [DADS] that the individual meets the LOC VIII criteria required by §45.201(a)(2) of this subchapter [diagnostic eligibility is approved for an individual, as described in §45.213(d)], the DSA must notify the individual's CMA of HHSC's [DADS] decision within one business day after receiving the notice from HHSC [DADS].

(l) If HHSC determines that an individual does not meet the LOC VIII criteria required by §45.201(a)(2) of this subchapter [DADS denies diagnostic eligibility], HHSC [DADS] sends written notice to the individual or LAR of the denial of the individual's request for enrollment into the CLASS Program in accordance with §45.402(b) of this chapter (relating to Denial of a Request for Enrollment into the CLASS Program).

(m) If the CMA receives notice from the DSA that HHSC determined that an individual meets the LOC VIII criteria required by §45.201(a)(2) of this subchapter [DADS approves diagnostic eligibility], the CMA must comply with this subsection.

(1) The CMA must ensure that the service planning team develops:

(A) a proposed enrollment IPC, PAS/HAB plan, and IPPs for the individual in accordance with §45.214 of this division (relating to Development of Enrollment IPC); and

(B) a transportation plan, if transportation as a habilitation activity or as an adaptive aid is included on the IPC.

(2) The CMA must submit the documents described in paragraph (1)(A) and (B) of this subsection to HHSC [DADS ] for review in accordance with §45.214 of this division.

(n) HHSC [DADS] reviews a proposed enrollment IPC in accordance with §45.216 of this division (relating to HHSC's Review [DADS review] of an Enrollment IPC) to determine if:

(1) the IPC meets the eligibility criterion described in §45.201(a)(4) [§45.201(a)(5)] of this subchapter (relating to Eligibility Criteria for CLASS Program Services and CFC Services); and

(2) the CLASS Program services and CFC services specified in the IPC meet the requirements described in §45.214(a)(1)(E)(iii) [§45.214(a)(1)(B)(iii)] or (iv) and §45.214(b) [(b)] of this division.

(o) The CMA and DSA must not provide CLASS Program services or CFC services to an individual until notified by HHSC that the individual's request for enrollment into the CLASS Program has been approved.

(p) [(o)] If HHSC [DADS ] notifies the [individual's] CMA, in accordance with §45.216(c)(1) [§45.216(c)] of this division, that the individual's request for enrollment is approved:

(1) the CMA must ensure the case manager complies with §45.216(c)(2)(A) - (C) of this division [within one business day after DADS notification, notify the individual or LAR and the individual's DSA of DADS decision]; and

(2) the CMA and DSA must:

(A) electronically access MESAV to determine if the information on the enrollment IPC is consistent with the information in MESAV;

(B) if the information on the enrollment IPC is inconsistent with the information in MESAV, notify HHSC of the inconsistency; and

(C) initiate CLASS Program services and CFC services for the individual in accordance with the individual's enrollment IPC within seven calendar days after the CMA receives HHSC's [DADS] notification.

(q) [(p)] If HHSC [DADS ] notifies the CMA that the individual's request for enrollment into the CLASS Program is approved but action is being taken to deny a CLASS Program service or CFC service as described in §45.216(e) of this division, including modifying the individual's proposed enrollment IPC: [, the CMA must:]

(1) the CMA must comply with §45.216(f) of this division; and

[(1) implement the modified enrollment IPC; and]

(2) the CMA and DSA must comply with §45.216(g) of this division.

[(2) send the individual or LAR written notice of the denial of the CLASS Program service or CFC service in accordance with §45.403(c) of this chapter (relating to Denial of a CLASS Program Service or CFC Service).]

[(q) The CMA and DSA must not provide CLASS Program services to an individual until notified by DADS that the individual's request for enrollment into the CLASS Program has been approved.]

§45.213.Determination by HHSC of Whether an Individual Meets LOC VIII Criteria [Diagnostic Eligibility by DADS].

(a) HHSC [DADS] reviews the documentation submitted by an individual's DSA as required by §45.212(i)(2) of this division (relating to Process for Enrollment of an Individual) and §45.221(a)(2) of this subchapter (related to Annual Review by HHSC of Whether an Individual Meets LOC VIII Criteria [and Reinstatement of Diagnostic Eligibility]) to determine if the individual meets the LOC VIII [eligibility] criteria required by [described in] §45.201(a)(2) [and (3)] of this subchapter (relating to Eligibility Criteria for CLASS Program Services and CFC Services).

(b) HHSC may request [If requested by DADS, the DSA must submit] current data obtained from standardized evaluations and formal assessments related to the LOC VIII criteria [to support the related condition diagnosis required by §45.201(a)(3) of this subchapter]. If HHSC makes such a request, a DSA must submit the information to HHSC within 10 calendar days after the date of the request.

(c) If HHSC determines that an individual meets the LOC VIII criteria:

(1) HHSC notifies the individual's DSA of the determination, in writing; and

(2) the LOC VIII is effective:

(A) on a date determined by HHSC; and

(B) through the last calendar day of the IPC period.

[(c) If DADS determines that the documentation submitted by the DSA in accordance with subsection (a) of this section evidences that the individual meets the eligibility criteria described in §45.201(a)(2) and (3) of this subchapter, DADS approves diagnostic eligibility for the individual.]

(d) If HHSC determines that an individual does not meet the LOC VIII criteria, HHSC notifies the individual's DSA and CMA of the determination, in writing.

[(d) If DADS approves diagnostic eligibility for the individual, DADS notifies the individual's DSA of the approval, in writing. If DADS denies diagnostic eligibility for the individual, DADS notifies the individual's DSA and CMA of the denial, in writing.]

[(e) DADS approval of diagnostic eligibility is effective:]

[(1) the date DADS receives the completed ID/RC Assessment; and]

[(2) through the last calendar day of the IPC period.]

§45.214.Development of Enrollment IPC.

(a) A CMA must, within 30 calendar days after notification by the DSA of HHSC's decision that an individual meets the LOC VIII criteria, [DADS approval of diagnostic eligibility for an individual] as required by §45.212(k) of this division (relating to Process for Enrollment of an Individual), ensure that an individual's case manager:

(1) convenes a service planning team meeting in which the service planning team [develops]:

(A) reviews the CLASS/DBMD Nursing Assessment form completed by the RN;

(B) addresses any information included in Addendum E of the CLASS/DBMD Nursing Assessment form, Recommendations/Coordination of Care, to ensure the individual's needs are met;

(C) documents on the CLASS/DBMD Coordination of Care form how the information in Addendum E of the CLASS/DBMD Nursing Assessment form was addressed;

(D) [(A)] develops a PAS/HAB plan based on information obtained from assessments conducted and observations made by the DSA as required by §45.212(h) of this division;

(E) [(B)] develops a proposed enrollment IPC that:

(i) identifies the type of each CLASS Program service and CFC service, other than CFC support management, to be provided to an individual;

(ii) specifies the number of units of each CLASS Program service and CFC service, other than CFC support management, to be provided to the individual;

(iii) for each CLASS Program service:

(I) is within the service limit described in §45.218 of this division (relating to Service Limits);

(II) if an adaptive aid, meets the requirements in Subchapter F, Division 1, of this chapter (relating to Adaptive Aids [, Minor Home Modifications, and CFC ERS]); and

(III) if a minor home modification, meets the requirements in Subchapter F, Division 2, of this chapter;

(iv) for CFC ERS, meets the requirements in Subchapter F, Division 3, of this chapter;

(v) states if an individual will receive CFC support management;

(vi) describes any other service or support to be provided to the individual through sources other than CLASS Program services or CFC services; and

(vii) if it includes registered nursing, licensed vocational nursing, specialized registered nursing, specialized licensed vocational nursing, habilitation, or CFC PAS/HAB, identifies whether the service is critical to the individual's health and safety, as required by §45.231(a)(2) of this subchapter (relating to Service Backup Plans);

(F) [(C)] develops an IPP for each CLASS Program service and CFC service listed on the proposed enrollment IPC, other than CFC support management; and

(G) [(D) ] [a transportation plan,] if transportation as a habilitation activity or as an adaptive aid is included on the proposed enrollment IPC, develops a transportation plan; and

(2) if the individual may need cognitive rehabilitation therapy, begin assisting the individual in obtaining an assessment as required by §45.705(h) of this chapter (relating to CMA Service Delivery).

(b) The case manager must ensure that each CLASS Program service and CFC service on the proposed enrollment IPC, other than CFC support management:

(1) is necessary to protect the individual's health and welfare in the community;

(2) addresses the individual's related condition;

(3) is not available to the individual through sources other than CLASS Program services or CFC services, including the Medicaid State Plan, other governmental programs, private insurance, or the individual's natural supports;

(4) is the most appropriate type and amount of CLASS Program service and CFC service to meet the individual's needs; and

(5) is cost effective.

(c) If the individual or LAR, case manager, and DSA agree on the type and amount of services to be included in a proposed enrollment IPC, the case manager must:

(1) ensure that during the service planning team meeting required by subsection (a)(1) [(a)] of this section the proposed enrollment IPC is reviewed, signed as evidence of agreement, and dated by:

(A) the individual or LAR;

(B) the case manager; and

(C) the DSA; and

(2) no later than 30 calendar days before the effective date of the proposed enrollment IPC as determined by the service planning team:

(A) submit the following to HHSC [DADS] for its review:

(i) the proposed enrollment IPC;

(ii) the IPPs;

(iii) the PAS/HAB plan;

(iv) the completed HHSC [DADS] CLASS/DBMD Nursing Assessment form provided by the DSA in accordance with §45.212(i)(3) of this division; and

(v) if transportation as a habilitation activity or as an adaptive aid is included on the IPC, the transportation plan; [and]

(B) send to the DSA a copy of:

(i) the proposed enrollment IPC;

(ii) the IPPs;

(iii) any service backup plan; and

(iv) if required by subsection (a)(1)(G) of this section, the transportation plan to the DSA; and

(C) [(B)] if the individual will receive a service through the CDS option, send to the FMSA a copy of the proposed enrollment IPC, the IPP for each service the individual will receive through the CDS option, the PAS/HAB plan and, if required by subsection (a)(1)(G) [(a)(1)(D)] of this section, the transportation plan.

(d) If the individual or LAR requests a CLASS Program service or CFC service that the case manager or DSA has determined does not meet the criteria described in subsection (b) of this section, does not meet the requirements described in Subchapter F of this chapter, or exceeds a service limit described in §45.218 of this division, the CMA must comply with this subsection.

(1) The CMA must, in accordance with the CLASS Provider Manual, send the individual or LAR written notice of the denial of the requested CLASS Program service or CFC service, copying the DSA and FMSA, if the individual or LAR requests a CLASS Program service or CFC service that the CMA or DSA has determined:

(A) does not meet the criteria described in subsection (b) of this section;

(B) does not meet the requirements described in Subchapter F of this chapter; or

(C) exceeds a service limit described in §45.218 of this division.

(2) If the CMA is required to send written notice of denial of a CLASS Program service or CFC service as described in paragraph (1) of this subsection, the CMA must also:

(A) no later than 30 calendar days before the effective date of the proposed IPC as determined by the service planning team, submit to HHSC [DADS] for its review:

(i) the proposed enrollment IPC that includes the type and amount of CLASS Program services or CFC services in dispute and not in dispute and is signed and dated by:

(I) the individual or LAR;

(II) the case manager; and

(III) the DSA;

(ii) the IPPs;

(iii) the PAS/HAB plan; and

(iv) if transportation as a habilitation activity or as an adaptive aid is included on the IPC, the transportation plan; and

(B) if the individual will receive a service through the CDS option, send to the FMSA a copy of the proposed enrollment IPC, the IPP for each service the individual will receive through the CDS option, the PAS/HAB plan, and if required by subsection (a)(1)(G) [(a)(1)(D)] of this section, the transportation plan.

(e) HHSC [DADS] reviews a proposed enrollment IPC in accordance with §45.216 of this division (relating to HHSC's [DADS] Review of an Enrollment IPC). [At DADS request, the CMA must submit additional documentation supporting the proposed enrollment IPC to DADS within 10 calendar days after the date of DADS request.]

[(f) If DADS notifies the individual's CMA, in writing, that the IPC is authorized and the individual's request for enrollment is approved, as described in §45.216(c) of this division, the CMA must send a copy of the authorized IPC to the DSA and, if the individual receives a service though the CDS option, to the FMSA.]

(f) [(g)] The process by which an individual's request for enrollment or a CLASS Program service or CFC service is denied, based on HHSC's [DADS] review of a proposed enrollment IPC, is described in §45.216(d) - (f) of this division.

(g) [(h)] The effective date of an enrollment IPC is one of the following, whichever is later:

(1) the effective date as determined by the service planning team; or

(2) the date HHSC [DADS] notifies the CMA that the individual's request for enrollment is approved and the IPC is authorized in accordance with §45.216(c) or (e)(2)(C) of this division.

(h) [(i)] An enrollment IPC is effective for an IPC period.

(i) [(j)] An individual's enrollment IPC must be reviewed and updated in accordance with §45.223 of this subchapter (relating to Renewal and Revision of an IPC).

§45.216.HHSC's [DADS] Review of an Enrollment IPC.

(a) HHSC [DADS] reviews a proposed enrollment IPC, PAS/HAB plan, IPPs and, if required by §45.214(a)(1)(G) [§45.214(a)(1)(D)] of this division (relating to Development of Enrollment IPC), the transportation plan to determine if:

(1) the IPC meets the requirement described in §45.201(a)(4) [§45.201(a)(5)] of this subchapter (relating to Eligibility Criteria for CLASS Program Services and CFC Services); and

(2) the CLASS Program services and CFC services specified in the IPC meet the requirements described in §45.214(a)(1)(E)(iii) [§45.214(a)(1)(B)(iii)] or (iv) and §45.214(b) [(b)] of this division.

(b) At HHSC's [DADS] request, the CMA must submit additional documentation supporting the proposed enrollment IPC to HHSC [DADS] within 10 calendar days after HHSC's [DADS] request.

(c) If HHSC determines that the proposed enrollment IPC meets the requirements described in subsection (a) of this section:

(1) HHSC notifies the CMA, in writing, that the individual's request for enrollment is approved; and

(2) within one business day after the CMA receives HHSC's notification, the case manager must:

(A) notify the individual or LAR of HHSC's approval of the request for enrollment;

(B) send a copy of:

(i) the enrollment IPC;

(ii) the IPP;

(iii) any service backup plan; and

(iv) if required by §45.214(a)(1)(G) of this division, the transportation plan to the DSA; and

(C) if the individual will receive a service through the CDS option, send the FMSA a copy of the:

(i) enrollment IPC;

(ii) IPP; and

(iii) transportation plan, if required by §45.214(a)(1)(G) of this division.

[(c) DADS notifies the individual's CMA, in writing, that the IPC is authorized and the individual's request for enrollment is approved if DADS determines that:]

[(1) the proposed enrollment IPC meets the requirement described in subsection (a)(1) of this section; and]

[(2) the CLASS Program services and CFC services specified in the IPC meet the requirements described in subsection (a)(2) of this section.]

(d) If HHSC [DADS] determines that the proposed enrollment IPC does not meet the requirements [requirement] described in subsection (a)(1) of this section, HHSC [DADS] notifies the individual's CMA and DSA of such determination and sends written notice to the individual or LAR that the individual's request for enrollment is denied and includes in the notice the individual's right to request a fair hearing in accordance with §45.301 of this subchapter (relating to Individual's Right to a Fair Hearing).

(e) HHSC [DADS] denies a CLASS Program service or CFC service and modifies a proposed enrollment [an] IPC in accordance with this subsection.

(1) HHSC [DADS] denies a CLASS Program service or CFC service if HHSC [DADS] determines that the [proposed enrollment] IPC meets the requirement described in subsection (a)(1) of this section but one or more of the CLASS Program services or CFC services specified in the IPC does not meet the requirements described in subsection (a)(2) of this section.

(2) If HHSC [DADS] denies a service as described in paragraph (1) of this subsection, HHSC [DADS]:

(A) modifies and authorizes the IPC;

(B) approves the individual's request for enrollment with the modified IPC; and

(C) notifies the individual's CMA, in writing, of the action taken.

(f) If HHSC [DADS] notifies the CMA of the denial of the CLASS Program service or CFC service and of the proposed enrollment IPC modified in accordance with subsection (e) of this section, the CMA must comply with §45.403(c) of this chapter (relating to Denial of a CLASS Program Service or CFC Service). [:]

[(1) implement the modified enrollment IPC; and]

[(2) send the individual or LAR written notice of the denial of the CLASS Program service or CFC service in accordance with §45.403(c) of this chapter (relating to Denial of a CLASS Program Service or CFC Service).]

(g) A CMA and DSA must:

(1) electronically access MESAV to determine if the information on the enrollment IPC or modified enrollment IPC is consistent with the information in MESAV;

(2) if the information on the enrollment IPC or modified enrollment IPC is inconsistent with the information in MESAV, notify HHSC of the inconsistency; and

(3) implement the enrollment IPC or modified enrollment IPC.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900481

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-3078


DIVISION 3. REVIEWS

40 TAC §§45.221, 45.223, 45.225 - 45.227

STATUTORY AUTHORITY

The amendments and new sections are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendments and new sections implement Texas Government Code, §531.0055, §531.021, and Texas Human Resources Code, §32.021.

§45.221.Annual Review by HHSC of Whether an Individual Meets LOC VIII Criteria [and Reinstatement of Diagnostic Eligibility].

(a) A DSA must:

(1) ensure that, no more than 120 calendar days before the expiration of an individual's IPC period, a registered nurse in accordance with the CLASS Provider Manual, completes:

(A) the HHSC [DADS] Related Conditions Eligibility Screening Instrument;

(B) the ID/RC Assessment in accordance with the CLASS Provider Manual; and

(C) a nursing assessment of the individual utilizing the HHSC [DADS] CLASS/DBMD Nursing Assessment form;

(2) submit to HHSC [DADS] at least 60 calendar days before the expiration of an individual's IPC period [for a DADS decision regarding the individual's diagnostic eligibility]:

(A) the results of a completed adaptive behavior screening assessment;

(B) the completed HHSC [DADS] Related Conditions Eligibility Screening Instrument; and

(C) the completed ID/RC Assessment; and

(3) send the completed HHSC [DADS] CLASS/DBMD Nursing Assessment form to the CMA.

(b) Information on the ID/RC Assessment must be supported by current data obtained from standardized evaluations and formal assessments conducted of the individual.

(c) HHSC [DADS] reviews the documentation submitted by the DSA in accordance with subsection (a)(2) of this section to determine whether an individual meets the LOC VIII criteria required by §45.201(a)(2) of this subchapter (relating to Eligibility Criteria for CLASS Program Services and CFC Services) and notifies the DSA of its determination in accordance with §45.213 of this subchapter (relating to Determination by HHSC of Whether an Individual Meets LOC VIII Criteria [Determination of Diagnostic Eligibility by DADS]).

(d) A DSA must ensure an appropriate professional completes an adaptive behavior screening assessment in accordance with the assessment instructions:

(1) at least every five years after completion of the most current assessment; and

(2) if significant changes that may be permanent occur in the individual's functioning.

(e) If an individual's LOC VIII expires before HHSC determines whether the individual meets the LOC VIII criteria, as described in subsection (c) of this section:

(1) the CMA and the DSA must continue to provide services to the individual until HHSC authorizes the proposed renewal IPC to ensure continuity of care and prevent the individual's health and welfare from being jeopardized; and

(2) if HHSC determines that the individual meets the LOC VIII criteria, and the individual is otherwise eligible for the CLASS Program, HHSC will reimburse the CMA and DSA for services provided, as required by paragraph (1) of this subsection, for a period of not more than 180 calendar days before the date HHSC receives the documentation described in subsection (a)(2) of this section.

[(e) DADS does not pay a CMA or DSA for CLASS Program services or CFC services provided during a period of time in which DADS has not approved an individual's diagnostic eligibility unless the DSA requests and is granted a reinstatement of such approval.]

[(f) To request reinstatement of approval of diagnostic eligibility, the DSA must submit to DADS the documentation described in subsection (a)(2) of this section.]

[(g) DADS does not grant reinstatement of approval of diagnostic eligibility:]

[(1) if the DSA does not submit the documentation described in subsection (a)(2) of this section;]

[(2) for a period of time for which DADS denied diagnostic eligibility; or]

[(3) for a period of time during which the individual is not financially eligible for Medicaid as required by §45.201(a)(1) of this subchapter (relating to Eligibility Criteria for CLASS Program Services and CFC Services).]

[(h) If DADS grants a reinstatement of approval of diagnostic eligibility, the reinstatement will be for a period of not more than 180 calendar days before the date DADS receives the documentation submitted by the DSA in accordance with subsection (f) of this section.]

§45.223.Renewal and Revision of an IPC.

(a) Beginning the effective date of an individual's IPC, as determined by §45.214(g) [§45.214(h)] of this subchapter (relating to Development of Enrollment IPC) or §45.222(b) of this division (relating to Renewal IPC and Requirement for Authorization to Continue Services), a case manager must, in accordance with the CLASS Provider Manual, meet with the individual or LAR in the individual's home, or as requested by the individual or LAR, in another location where the individual receives CLASS Program services or CFC services.

(b) During each meeting described in subsection (a) of this section, the case manager must:

(1) review the individual's progress toward achieving the goals and objectives as described on the IPP for each CLASS Program service and each CFC service listed on the individual's IPC;

(2) if an individual's IPC includes registered nursing, licensed vocational nursing, specialized registered nursing, specialized licensed vocational nursing, habilitation, or CFC PAS/HAB, and any of those service are not identified as critical to meeting the individual's health and safety, discuss with the individual or LAR whether the service may now be critical to the individual's health and safety;

(3) if a service backup plan has been implemented, discuss the implementation of the service backup plan with the individual or LAR to determine whether or not the plan was effective;

(4) if the case manager determines a service may now be critical to the individual's health and safety, as described in paragraph (2) of this subsection, or that the service backup plan was ineffective as described in paragraph (3) of this subsection, convene a service planning team meeting to discuss revisions to the IPC and the service backup plan; and

(5) complete the HHSC [DADS] IPP Service Review form in accordance with the CLASS Provider Manual.

(c) An individual's case manager must:

(1) at least annually, but no more than 90 calendar days before the end of the IPC period of the IPC being renewed, convene a service planning team meeting in which the service planning team: [to develop a proposed renewal IPC, new IPPs and a new PAS/HAB plan, and if transportation as a habilitation activity or as an adaptive aid is included on the IPC, a new transportation plan;]

(A) reviews the CLASS/DBMD Nursing Assessment form completed by the RN; P> (B) addresses any information included in Addendum E of the CLASS/DBMD Nursing Assessment form, Recommendations/Coordination of Care, to ensure the individual's needs are met;

(C) documents on the CLASS/DBMD Coordination of Care form how the information in Addendum E of the CLASS/DBMD Nursing Assessment form was addressed; and

(D) develops:

(i) a proposed renewal IPC;

(ii) new IPPs;

(iii) a new PAS/HAB plan; and

(iv) if transportation as a habilitation activity or as an adaptive aid is included on the proposed renewal IPC, a new transportation plan;

(2) except as provided in subsection (d) of this section, within five business days after becoming aware that the individual's need for a CLASS Program service or CFC service changes:

(A) develop a proposed revised IPC and revised IPP(s) and, if necessary, a revised PAS/HAB plan and a new or revised transportation plan; and

(B) if the individual may need cognitive rehabilitation therapy, begin assisting the individual to obtain an assessment as required by §45.705(h) of this chapter (relating to CMA Service Delivery); and

(3) if the proposed renewal or proposed revised IPC includes registered nursing, licensed vocational nursing, specialized registered nursing, specialized licensed vocational nursing, habilitation, or CFC PAS/HAB, ensure that the IPC identifies whether the service is critical to the individual's health and safety, as required by §45.231(a)(2) of this division (relating to Service Backup Plans).

(d) If an individual receiving CFC PAS/HAB or LAR requests CFC support management during an IPC year, the case manager must revise the IPC as described in the CLASS Provider Manual.

(e) The case manager must:

(1) ensure that a proposed renewal IPC and proposed revised IPC meet the requirements described in §45.214(a)(1)(E) [§45.214(a)(1)(B)] and §45.214(b) [(b)] of this subchapter; and

(2) ensure that new or revised IPPs are reviewed, signed, and dated as evidence of agreement by:

(A) the individual or LAR;

(B) the case manager; and

(C) the DSA.

(f) If the individual or LAR, case manager, and DSA agree on the type and amount of services to be included in a proposed renewal IPC or a proposed revised IPC, the case manager must:

(1) ensure that the proposed renewal IPC or proposed revised IPC is reviewed, signed, and dated as evidence of agreement by:

(A) the individual or LAR;

(B) the case manager; and

(C) the DSA;

(2) at least 30 calendar days before the end of the IPC period:

(A) submit to HHSC for its review:

(i) the signed proposed renewal IPC;

(ii) the new IPPs;

(iii) the new PAS/HAB plan;

(iv) if required by subsection (c)(1)(D) of this section, a new transportation plan; and

(v) the completed HHSC CLASS/DBMD Nursing Assessment form provided by the DSA in accordance with §45.221(a)(3) of this division (relating to Annual Review by HHSC of Whether an Individual Meets LOC VIII Criteria);

(B) send the DSA a copy of the signed proposed renewal IPC, revised IPPs, any service backup plan, and, if required by subsection (c)(1) or (2)(A) of this section, the new or revised transportation plan; and

(C) if the individual receives a service through the CDS option, send the FMSA a copy of the signed proposed renewal IPC, revised IPP for a service received through the CDS option and, if required by subsection (c)(1)(D) or (2)(A) of this section, the new or revised PAS/HAB and transportation plans; and

[(2) submit to DADS for its review:]

[(A) the signed proposed renewal IPC, new IPPs, new PAS/HAB plan and, if required by subsection (c)(1) of this section, a new transportation plan, and the completed DADS CLASS/DBMD Nursing Assessment form provided by the DSA in accordance with §45.221(a)(3) of this division (relating to Annual Review and Reinstatement of Diagnostic Eligibility) at least 30 calendar days before the end of the IPC period; or]

[(B) the signed proposed revised IPC, any revised IPPs, and if required by subsection (c)(2)(A) of this section, the revised PAS/HAB plan, and the new or revised transportation plan, and the completed DADS CLASS/DBMD Nursing Assessment form at least 30 calendar days before the effective date proposed by the service planning team; and]

(3) at least 30 calendar days before the revised IPC effective date proposed by the service planning team:

(A) submit to HHSC for its review:

(i) the signed proposed revised IPC;

(ii) any revised IPPs;

(iii) if required by subsection (c)(2)(A) of this section, the revised PAS/HAB plan;

(iv) the new or revised transportation plan; and

(v) the completed HHSC CLASS/DBMD Nursing Assessment form;

(B) send the DSA a copy of the signed proposed revised IPC, revised IPPs, any service backup plan, and, if required by subsection (c)(1)(D) or (2)(A) of this section, the new or revised transportation plan; and

(C) if the individual receives a service through the CDS option, send the FMSA a copy of the signed proposed revised IPC, revised IPP for a service received through the CDS option and, if required by subsection (c)(1)(D) or (2)(A) of this section, the new or revised PAS/HAB and transportation plans.

[(3) if the individual receives a service through the CDS option, send to the FMSA a copy of the signed proposed renewal or signed proposed revised IPC, revised IPP for a service received through the CDS option and, if required by subsection (c)(1) or (2)(A) of this section, the new or revised PAS/HAB and transportation plans.]

(g) If the individual or LAR requests a CLASS Program service or a CFC service that the case manager or DSA has determined does not meet the requirements described in §45.214(a)(1)(E)(iii) [§45.214(a)(1)(B)(iii)] or (iv) or §45.214(b) [(b)] of this subchapter, the CMA must comply with this subsection.

(1) The CMA must, in accordance with the CLASS Provider Manual, send the individual or LAR written notice of the denial of or proposal to reduce the requested CLASS Program service, copying the DSA and, if applicable, the FMSA.

(2) If the CMA is required to send a written notice of the denial of, or proposal to reduce, a CLASS Program service or CFC service as described in paragraph (1) of this subsection, the CMA must:

(A) in accordance with the time frames described in subsection (f)(2)(A) or (B) [(e)(2)] of this section, submit to HHSC [DADS] for its review:

(i) the proposed renewal IPC or proposed revised IPC, which includes the type and amount of CLASS Program services or CFC services in dispute and not in dispute, and is signed and dated by:

(I) the individual or LAR;

(II) the case manager; and

(III) the DSA;

(ii) the IPPs;

(iii) the new PAS/HAB plan or any revised PAS/HAB plan; and

(iv) if transportation as a habilitation activity or as an adaptive aid is included on the IPC, the new or revised transportation plan; and

(B) if the individual receives a service through the CDS option, send to the FMSA a copy of the proposed renewal or proposed revised IPC, the revised IPP for a service received through the CDS option and, if required by subsection (c)(1) or (2)(A) of this section, the new or revised PAS/HAB and transportation plans to the FMSA.

(h) At HHSC's [DADS] request, the CMA must submit additional documentation supporting the proposed IPC to HHSC [DADS] within 10 calendar days after the date of HHSC's [DADS] request.

(i) If HHSC [DADS] determines that the proposed renewal IPC or the proposed revised IPC meets the requirement described in §45.201(a)(4) [§45.201(a)(5) ] of this subchapter and the CLASS Program services and CFC services specified in the IPC meet the requirements described in §45.214(a)(1)(E)(iii) [§45.214(a)(1)(B)(iii)] or (iv) and §45.214(b) [(b)] of this subchapter:

(1) HHSC [DADS] notifies the individual's CMA, in writing, that the renewal IPC or revised IPC is authorized; [and]

(2) the CMA must send a copy of the authorized renewal or revised IPC to the DSA and, if the individual receives a service though the CDS option, to the FMSA; and [.]

(3) the CMA and the DSA must:

(A) electronically access MESAV to determine if the information on the renewal or revised IPC is consistent with the information in MESAV; and

(B) if the information on the renewal or revised IPC is inconsistent with the information in MESAV, notify HHSC of the inconsistency.

(j) If an individual's IPC period expires before HHSC authorizes a proposed renewal IPC:

(1) a CMA and DSA must continue to provide services to the individual until HHSC authorizes the proposed renewal IPC to ensure continuity of care and prevent the individual's health and welfare from being jeopardized; and

(2) if HHSC authorizes the proposed renewal IPC as described in subsection (i) of this section, HHSC will reimburse the CMA and DSA for services provided, as required by paragraph (1) of this subsection, for a period of not more than 180 calendar days before the date HHSC receives the documentation described in subsection (f)(2) of this section from the DSA.

(k) [(j)] The process by which an individual's CLASS program services or CFC services are terminated or a CLASS Program service or CFC service is denied, based on [DADS] review by HHSC of a proposed renewal IPC or proposed revised IPC, is described in §45.225(c) - (e) of this division (relating to Utilization Review of an IPC by HHSC [DADS]).

(l) [(k)] The IPC period of a revised IPC is the same IPC period as the enrollment IPC or renewal IPC being revised.

§45.225.Utilization Review of an IPC by HHSC [DADS].

(a) At HHSC's [DADS] discretion, HHSC [DADS] conducts a utilization review of an IPC to determine if:

(1) the IPC meets the requirement described in §45.201(a)(4) [§45.201(a)(5)] of this subchapter (relating to Eligibility Criteria for CLASS Program Services and CFC Services); and

(2) the CLASS Program services and CFC services specified in the IPC meet the requirements described in §45.214(a)(1)(E)(iii) [§45.214(a)(1)(B)(iii)] or (iv) and §45.214(b) [(b)] of this subchapter (relating to Development [DADS Review] of an Enrollment IPC).

(b) If requested by HHSC [DADS], a CLASS Program provider must submit documentation supporting the IPC to HHSC [DADS] within 10 calendar days after HHSC's [DADS] request.

(c) If HHSC [DADS] determines that an IPC does not meet the requirement described in §45.201(a)(4) [§45.201(a)(5)] of this subchapter, HHSC [DADS] notifies the individual's CMA and DSA of such determination and sends written notice to the individual or LAR that the individual's CLASS Program services and CFC services are proposed for termination and includes in the notice the individual's right to request a fair hearing in accordance with §45.301 of this chapter (relating to Individual's Right to a Fair Hearing).

(d) HHSC [DADS] denies or proposes reduction of a CLASS Program service or CFC service and modifies an IPC in accordance with this subsection.

(1) HHSC [DADS] denies or proposes reduction of a CLASS Program service or CFC service if HHSC [DADS] determines that the IPC meets the requirement described in §45.201(a)(4) [§45.201(a)(5)] of this subchapter but one or more of the CLASS Program services or CFC services specified in the IPC do not meet the requirements described in §45.214(a)(1)(E)(iii) [§45.214(a)(1)(B)(iii) ] or (iv) and §45.214(b) of this subchapter [(b)].

(2) If HHSC [DADS] denies or proposes reduction of a CLASS Program service or CFC service as described in paragraph (1) of this subsection, HHSC [DADS]:

(A) modifies and authorizes the IPC; and

(B) notifies the individual's CMA, in writing, of the action taken.

(e) If HHSC [DADS] notifies the CMA of the denial or proposed reduction of the individual's CLASS Program services or CFC services and of the IPC modified in accordance with subsection (d) of this section:

(1) for a denial of a CLASS Program service or CFC service: [, the CMA must:]

(A) the CMA must comply with §45.403(c) of this chapter (relating to Denial of a CLASS Program Service or CFC Service); and

[(A) send the individual or LAR written notice of the denial of the CLASS Program service or CFC service in accordance with §45.403(c) of this chapter (relating to Denial of a CLASS Program Service or CFC Service); and]

(B) the CMA and DSA must comply with §45.403(d) of this chapter; or

[(B) coordinate the implementation of the modified IPC; or]

(2) for a proposed reduction of a CLASS Program service or CFC service:

(A) the CMA must comply [send the individual or LAR written notice of the proposal to reduce the CLASS Program service or CFC service in accordance] with §45.405(c) of this chapter (relating to Reduction of a CLASS Program Service or CFC Service); and

(B) the modified IPC is handled as follows:

(i) in accordance with §45.405(d) of this chapter, if the individual or LAR requests a fair hearing before the effective date of the reduction of a CLASS Program service or CFC service, as specified in the written notice [, the modified IPC may not be implemented]; or

(ii) in accordance with §45.405(e) of this chapter, if the individual or LAR does not request a fair hearing before the effective date of the reduction of a CLASS Program service or CFC service [, as specified in the written notice, the CMA must coordinate the implementation of the modified IPC].

(f) The IPC period of an enrollment IPC or a renewal IPC modified by HHSC [DADS] in accordance with subsection (d) of this section does not change as a result of HHSC's [DADS] modification.

§45.226.Tracking Annual Renewal of an ID/RC Assessment by a DSA.

(a) A DSA must have and implement written policies and procedures to ensure compliance with §45.221(a)(2) and (3) of this division (relating to Annual Review by HHSC of Whether an Individual Meets LOC VIII Criteria).

(b) A DSA's written policies and procedures must include using a written or electronic tracking system that alerts the DSA to activities that must occur for the DSA to timely submit documentation to HHSC as required by §45.221(a)(2) of this division.

§45.227.Tracking Annual Renewal of an IPC by a CMA.

(a) A CMA must have and implement written policies and procedures to ensure compliance with §45.223(f)(2)(A) of this division (relating to Renewal and Revision of an IPC).

(b) A CMA's written policies and procedures must include using a written or electronic tracking system that alerts the CMA to activities that must occur for the CMA to timely submit documentation to HHSC as required by §45.223(f)(2)(A) of this division.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900482

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-3078


SUBCHAPTER D. TRANSFER, DENIAL, SUSPENSION, REDUCTION, AND TERMINATION OF SERVICES

40 TAC §§45.403, 45.405, 45.406

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendments implement Texas Government Code, §531.0055, §531.021, and Texas Human Resources Code, §32.021.

§45.403.Denial of a CLASS Program Service or CFC Service.

(a) HHSC [DADS] denies a CLASS Program service or CFC service on an individual's IPC, based on a review described in §45.216 of this chapter (relating to HHSC's [DADS] Review of an Enrollment IPC), §45.223 of this chapter (relating to Renewal and Revision of an IPC), or §45.225 of this chapter (relating to Utilization Review of an IPC by HHSC [DADS]), if HHSC [DADS] determines that the CLASS Program service or CFC service does not meet the requirements described in §45.214(a)(1)(E)(iii) [§45.214(a)(1)(B)(iii) ] or (iv) and §45.214(b) [(b)] of this chapter (relating to Development of Enrollment IPC).

(b) If HHSC [DADS notifies the CMA selected by the individual, in writing, if DADS] denies a CLASS Program service or CFC service on the individual's IPC, HHSC modifies the IPC and notifies the CMA, in writing, of the denial. [DADS sends a copy of the modified IPC to the CMA.]

(c) Upon receipt of a written notice from HHSC denying [DADS written notice of denial of] a CLASS Program service or CFC service, the CMA must:

(1) send a copy of the modified IPC to the DSA and, if the individual receives a service through the CDS option, to the FMSA;

(2) [(1)] in accordance with the CLASS Provider Manual, send written notice to the individual or LAR of the denial of the service, copying the individual's DSA and, if selected, FMSA; and

(3) [(2)] include in the notice the individual's right to request a fair hearing in accordance with §45.301 of this chapter (relating to Individual's Right to a Fair Hearing). [; and]

[(3) coordinate the implementation of the modified IPC described in subsection (b) of this section.]

(d) A CMA and DSA must:

(1) electronically access MESAV to determine if the information on the modified IPC is consistent with the information in MESAV;

(2) if the information on the modified IPC is inconsistent with the information in MESAV, notify HHSC of the inconsistency; and

(3) implement the modified IPC.

§45.405.Reduction of a CLASS Program Service or CFC Service.

(a) HHSC [DADS] reduces a CLASS Program service or CFC service on an individual's IPC, based on a review described in §45.223 of this chapter (relating to Renewal and Revision of an IPC) or §45.225 of this chapter (relating to Utilization Review of an IPC by HHSC [DADS]), if HHSC [DADS] determines that the CLASS Program service or CFC service on the IPC does not meet the requirements described in §45.214(a)(1)(E)(iii) [§45.214(a)(1)(B)(iii) ] or (iv) and §45.214(b) [(b)] of this chapter (relating to Development of Enrollment IPC).

(b) If HHSC [DADS notifies the individual's CMA, in writing, if it] proposes to reduce a CLASS Program service or CFC service on the individual's IPC, HHSC modifies the IPC and notifies the individual's CMA, in writing, of the proposed reduction. . [DADS sends a copy of the modified IPC to the CMA.]

(c) Upon receipt of a written notice from HHSC [DADS] proposing to reduce a CLASS Program service or CFC service, the CMA must: [,]

(1) send a copy of the modified IPC to the DSA and, if the individual receives a service through the CDS option, to the FMSA;

(2) in accordance with the CLASS Provider Manual, send written notice to the individual or LAR of the proposal to reduce the service, copying the individual's DSA and, if selected, FMSA; and [. The CMA must]

(3) include in the notice the individual's right to request a fair hearing in accordance with §45.301 of this chapter (relating to Individual's Right to a Fair Hearing).

(d) If the individual or LAR requests a fair hearing before the effective date of the reduction of a CLASS Program service or CFC service, as specified in the written notice, the modified IPC described in subsection (b) of this section may not be implemented and the DSA must provide the service to the individual in the amount authorized in the prior IPC while the appeal is pending.

(e) If the individual or LAR does not request a fair hearing before the effective date of the reduction of a CLASS Program service or CFC service, a CMA and DSA must:

(1) electronically access MESAV to determine if the information on the modified IPC is consistent with the information in MESAV;

(2) if the information on the modified IPC is inconsistent with the information in MESAV, notify HHSC of the inconsistency; and

(3) implement the modified IPC.

§45.406.Termination [TTermination ] of CLASS Program Services and CFC Services With Advance Notice Because of Ineligibility or Leave from the State or Because DSAs Cannot Ensure Health and Safety.

(a) HHSC [DADS] terminates an individual's CLASS Program services and CFC services if:

(1) the individual does not meet the eligibility criteria described in §45.201 of this chapter (relating to Eligibility Criteria for CLASS Program Services and CFC Services);

(2) the individual is admitted for more than 180 consecutive calendar days to one of the facilities listed in §45.404(a)(1) of this subchapter [division] (relating to Suspension of CLASS Program Services or CFC Services) and HHSC [DADS] has not extended the individual's suspension in accordance with §45.404(d) of this subchapter [division];

(3) the individual leaves the state for more than 180 consecutive calendar days and HHSC [DADS] has not extended the individual's suspension in accordance with §45.404(d) of this subchapter [division]; or

(4) the DSAs serving the catchment area in which the individual resides are not willing to provide CLASS Program services or CFC services to the individual because they have determined that they cannot ensure the individual's health and safety.

(b) If a CMA becomes aware that a situation described in subsection (a) of this section exists, the CMA must request, in writing, that HHSC [DADS] terminate CLASS Program services and CFC services for the individual. Within two business days after the CMA becomes aware of the situation, the CMA must send the written request with written supporting documentation to HHSC [DADS].

(c) If the reason for the requested termination of services is subsection (a)(4) of this section, the CMA must include in the written documentation the specific reasons the DSAs have determined that they cannot ensure the individual's health and safety.

(d) Except as provided in subsection (f) of this section, HHSC [DADS] notifies the individual's CMA, in writing, of whether it authorizes the proposed termination of CLASS program services and CFC services.

(e) Upon receipt of a written notice from HHSC [DADS] authorizing the proposed termination of CLASS Program services, the CMA must, in accordance with the CLASS Provider Manual, send written notice to the individual or LAR of the proposal to terminate CLASS Program services and CFC services, copying the individual's DSA and, if selected, FMSA. The CMA must include in the notice the individual's right to request a fair hearing in accordance with §45.301 of this chapter (relating to Individual's Right to a Fair Hearing).

(f) If the reason for the proposed termination of CLASS Program services and CFC services is based on the requirement in §45.201(a)(4) [§45.201(a)(5)] of this chapter and HHSC [DADS] authorizes the proposed termination, HHSC [DADS] sends written notice to the individual or LAR of the proposal to terminate CLASS Program services and CFC services and includes in the notice the individual's right to request a fair hearing in accordance with §45.301 of this chapter [(relating to Individual's Right to a Fair Hearing)]. HHSC [DADS] sends a copy of the written notice to the individual's DSA, CMA, and, if selected, FMSA.

(g) If the individual or LAR requests a fair hearing before the effective date of the termination of CLASS Program services and CFC services, as specified in the written notice, the DSA must provide services to the individual in the amounts authorized in the IPC while the appeal is pending.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900483

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-3078


SUBCHAPTER G. ADDITIONAL CMA REQUIREMENTS

40 TAC §§45.702, 45.704, 45.706 - 45.709

STATUTORY AUTHORITY

The amendments and new sections are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendments and new sections implement Texas Government Code, §531.0055, §531.021, and Texas Human Resources Code, §32.021.

§45.702.Protection of Individual, Initial and Annual Explanations, and Offering Access to Other Services.

(a) A CMA must have and implement written policies and procedures that safeguard an individual against:

(1) infectious and communicable diseases;

(2) conflicts of interest with a staff person, volunteer, or controlling person of the CMA [staff persons];

(3) abuse, neglect, and exploitation;

(4) [(3)] acts of financial impropriety by a staff person, volunteer, or controlling person of the CMA [case manager]; and

(5) [(4)] deliberate damage of personal possessions by a staff person, volunteer, or controlling person of the CMA.

(b) A case manager must, at least annually: [,]

(1) provide an oral and written explanation of the topics described in §45.212(a)(2)(A)(i) - (x) [§45.212(a)(2)(A) - (J)] of this chapter (relating to Process for Enrollment of an Individual) to the individual and LAR or person actively involved with the individual; and [.]

(2) educate the individual and LAR or person actively involved with the individual about protecting the individual from abuse, neglect, and exploitation.

(c) After an individual is enrolled in the CLASS Program, a CMA must:

(1) do the following regarding transfers:

(A) at least annually, provide an oral explanation to the individual and LAR or person actively involved with the individual that the individual may transfer to a different CMA or DSA; and

(B) if the individual or LAR expresses a desire for the individual to transfer to a different CMA or DSA:

(i) give the individual and LAR or person actively involved with the individual a written list of CMAs and DSAs serving the catchment area in which the individual resides;

(ii) have the individual or LAR select a CMA and DSA by completing a Selection Determination form as described in the CLASS Provider Manual; and

(iii) coordinate the individual's transfer in accordance with §45.401 of this chapter (relating to Coordination of Transfers), if the individual or LAR selects a different DSA or CMA on the Selection Determination form; and

(2) at least annually:

(A) give the individual or LAR or person actively involved with the individual a written list of CMAs and DSAs serving the catchment area in which the individual resides; [and]

(B) have the individual or LAR select a CMA and DSA by completing a Selection Determination form as described in the CLASS Provider Manual; [and]

(C) obtain the signature of the individual or LAR on a Waiver Program Verification of Freedom of Choice form documenting the individual's or LAR's choice of the CLASS Program over the ICF/IID Program; and

(D) [(3)] [at least annually,] provide an oral explanation to the individual or LAR that the individual or LAR [they] may request:

(i) [(A)] that the DSA provide habilitation, out-of-home respite in a camp described in §45.806(b)(2)(D) of this chapter (relating to Respite and Dental Treatment), adaptive aids, nursing, or CFC PAS/HAB while the individual is temporarily staying at a location outside the catchment area in which the individual resides but within the state of Texas during a period of no more than 60 consecutive days; and

(ii) [(B)] that the DSA provide habilitation, out-of-home respite in a camp, adaptive aids, nursing, or CFC PAS/HAB as described in clause (i) [subparagraph (A)] of this subparagraph [paragraph] more than once during an IPC period.

(d) If the CMA is notified by the DSA that the individual is receiving habilitation, out-of-home respite in a camp described in §45.806(b)(2)(D) of this chapter, adaptive aids, nursing, or CFC PAS/HAB outside the catchment area in which the individual resides in accordance with §45.805(g)(1) of this chapter (relating to DSA: Service Delivery), the CMA must:

(1) if the individual receives habilitation, out-of-home respite in a camp, adaptive aids, nursing, or CFC PAS/HAB outside the catchment area, provide an oral explanation to the individual or LAR, on or before the 35th day of the period services have been provided outside the catchment area, that:

(A) to ensure the continued provision of habilitation, out-of-home respite in a camp, adaptive aids, nursing, or CFC PAS/HAB, the individual must do one of the following before the 61st day:

(i) transfer to a DSA contract for the catchment area in which the individual is receiving habilitation, out-of-home respite in a camp, adaptive aids, nursing, or CFC PAS/HAB; or

(ii) return to the catchment area in which the individual resides; and

(B) if the individual receives habilitation, out-of-home respite in a camp, adaptive aids, nursing, or CFC PAS/HAB outside the catchment area during a period of 60 consecutive days, the individual must return to the catchment area in which the individual resides and receive services in that catchment area before the DSA may accept another request from the individual or LAR that the DSA provide habilitation, out-of-home respite in a camp, adaptive aids, nursing, or CFC PAS/HAB outside the catchment area; and

(2) if the individual or LAR expresses a desire for the individual to transfer to a DSA contract for the catchment area in which the individual is receiving habilitation, out-of-home respite in a camp, adaptive aids, nursing, or CFC PAS/HAB:

(A) give the individual and LAR or person actively involved with the individual a written list of CMAs and DSAs serving the catchment area in which the individual is receiving habilitation, out-of-home respite in a camp, adaptive aids, nursing, or CFC PAS/HAB;

(B) have the individual or LAR select a CMA and DSA by completing a Selection Determination form as described in the CLASS Provider Manual; and

(C) coordinate the individual's transfer in accordance with §45.401 of this chapter (relating to Coordination of Transfers).

(e) If an individual requests that the case manager convene a meeting of the service planning team to discuss the DSA's reasons for declining a request to allow services to be provided outside the catchment area as described in §45.805(h)(1)(B) of this chapter, the case manager must:

(1) convene the meeting to review the reasons the DSA declined the request that was submitted by the DSA; and

(2) facilitate a discussion between the individual or LAR and DSA during the meeting regarding the reasons the DSA declined the request.

(f) If an individual's CLASS Program services and CFC services are terminated in accordance with Subchapter D of this chapter (relating to Transfer, Denial, Suspension, Reduction, and Termination of Services), the CMA must ensure that the case manager informs the individual of:

(1) alternative long-term services and supports in the community, including CFC services through a managed care organization; and

(2) institutional services.

(g) A CMA must have documentation that it provided the oral explanation and information as required under subsections (b), (c)(1)(A), (c)(2) and (3), and (d)(1) of this section and convened a meeting as required under subsection (e) of this section.

(h) A CMA, in accordance with the CLASS Provider Manual, must report critical incidents to HHSC and the DSA using the CLASS/DBMD Notification of Critical Incidents form.

(i) A CMA must ensure that a program director who receives a copy of an HHSC initial intake report or a final investigative report from an FMSA, in accordance with §41.702 of this title (relating to Requirements Related to HHSC Investigations When an Alleged Perpetrator is a Service Provider) or §41.703 of this title (relating to Requirements Related to HHSC Investigations When an Alleged Perpetrator is a Staff Person or a Controlling Person of an FMSA), gives a copy of the report to the individual's case manager.

§45.704.Training of CMA Staff Persons and Volunteers.

(a) A CMA must ensure that:

(1) a CMA staff person completes training as described in the CLASS Provider Manual;

(2) a CMA staff person [case manager] completes training on the CLASS Program and CFC, including the requirements of this chapter and the CLASS Program services and CFC services described in §45.104 of this chapter (relating to Description of the CLASS Program and CFC Option); and

(3) a CMA staff person who is responsible for completing the IPP completes person-centered service planning training approved by HHSC:

(A) by June 1, 2017, if the staff person was hired on or before June 1, 2015; or

(B) within two years after the hire date, if the staff person was hired after June 1, 2015.

(b) A CMA must:

(1) ensure that each CMA staff person and volunteer:

(A) is trained on 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) is instructed to report to DFPS immediately, but not later than 24 hours, 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, 1-800-252-5400; or

(ii) using the DFPS Abuse Hotline website; and

(C) is provided with the instructions described in subparagraph (B) of this paragraph in writing;

(2) conduct the activities described in paragraph (1)(A) - (C) of this subsection:

(A) within one year after the person's most recent training on abuse, neglect, and exploitation and annually thereafter, if the CMA staff person or volunteer was hired before September 1, 2018; or

(B) before assuming job duties and annually thereafter, if the CMA staff person or volunteer is hired on or after September 1, 2018; and

(3) document:

(A) the name of the person who received the training required by this subsection;

(B) the date the training was conducted; and

(C) the name of the person who conducted the training.

§45.706.CMA Documentation of Services Delivered and Recordkeeping.

(a) A CMA must ensure that when a case manager provides case management, the case manager:

(1) documents:

(A) the date of contact;

(B) a description of the case management activity performed;

(C) the progress or lack of progress in achieving goals or objectives in the individual's IPP in observable, measurable terms that directly relate to the specific goal or objective addressed;

(D) the person with whom the contact occurred; and

(E) the signature and title of the case manager who provided the contact; and

(2) completes an HHSC Documentation of Services Delivered form to document the provision of case management that is supported by the documentation required in paragraph (1)(A)-(E) of this subsection.

(b) A CMA must ensure that, after a case manager makes the last entry on an HHSC Documentation of Services Delivered form, a staff person other than the case manager who completed the form signs and dates the form as a timekeeper as verification of the accuracy of the information on the form.

(c) A CMA must maintain a separate record for each individual receiving case management from the CMA. An individual's record must include:

(1) the individual's current IPC and any other IPC authorized for the current IPC period;

(2) the individual's current IPP and any other IPP developed for the current IPC period;

(3) the individual's current ID/RC Assessment;

(4) the individual's current Waiver Program Verification of Freedom of Choice form documenting the individual's or LAR's choice of the CLASS Program over the ICF/IID Program;

(5) the individual's current Selection Determination form documenting the individual's or LAR's choice of a CMA and DSA;

(6) the documentation required by subsection (a)(1) of this section;

(7) the completed HHSC Documentation of Services Delivered forms signed and dated by a timekeeper as required by subsection (b) of this section; and

(8) any other relevant documentation concerning the individual.

§45.707.CMA: Quality Management Process.

(a) A CMA must, at least annually, conduct a survey of all individuals, LARs, and persons actively involved with the individual to determine their satisfaction with the provision of case management.

(b) A CMA must develop a written quality assurance process to evaluate and improve the quality of case management provided by the CMA based, at least in part, on the results of the survey required by subsection (a) of this section.

(c) At least annually, a CMA must:

(1) review all final investigative reports from HHSC for an investigation described in §45.709(c) of this subchapter (relating to CMA: Requirements Related to the Abuse, Neglect, and Exploitation of an Individual) and, based on the review, identify program process improvements that help prevent the occurrence of abuse, neglect, and exploitation and improve the delivery of case management services; and

(2) evaluate critical incident data reported in accordance with §45.702(h) of this subchapter (relating to Protection of Individual, Initial and Annual Explanations, and Offering Access to Other Services) and identify program process improvements that help prevent the occurrence of critical incidents and improve service delivery.

§45.708.CMA: Reporting Allegations of Abuse, Neglect, or Exploitation of an Individual.

If a CMA, staff person, volunteer, or controlling person of the CMA knows or suspects an individual is being or has been abused, neglected, or exploited, the CMA 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 24 hours after having knowledge or suspicion, by:

(1) calling the DFPS Abuse Hotline toll-free telephone number, 1-800-252-5400; or

(2) using the DFPS Abuse Hotline website.

§45.709.CMA: Requirements Related to the Abuse, Neglect, and Exploitation of an Individual.

(a) If a report required by §45.708 of this subchapter (relating to CMA: Reporting Allegations of Abuse, Neglect, or Exploitation of an Individual) alleges abuse, neglect, or exploitation by a person who is not a staff person, volunteer, or controlling person of a CMA, the CMA must:

(1) as necessary:

(A) obtain immediate medical or psychological services for the individual; and

(B) assist in obtaining ongoing medical or psychological services for the individual; and

(2) discuss with the individual or LAR alternative residential settings and additional services that may help ensure the individual's safety.

(b) If a report required by §45.708 of this subchapter alleges abuse, neglect, or exploitation of an individual by a staff person, volunteer, or controlling person of a CMA; or if the CMA is notified by HHSC of an allegation of abuse, neglect, or exploitation by a staff person, volunteer, or controlling person of the CMA, the CMA must:

(1) as necessary:

(A) obtain immediate 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 of the abuse, neglect, or exploitation does not have contact with the individual or any other individual until HHSC completes the investigation;

(3) preserve and protect any evidence related to the allegation; and

(4) as soon as possible, but no later than 24 hours, after the CMA reports or is notified of the allegation, notify the individual, the LAR, and the DSA of:

(A) the allegation report; and

(B) the actions the CMA 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.

(c) During an HHSC investigation of an alleged perpetrator who is a staff person, volunteer, or controlling person of a CMA, the CMA 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 CMA;

(B) individuals, staff persons, volunteers, and controlling persons; and

(C) records pertinent to the investigation of the allegation; and

(3) ensure that staff persons, volunteers, and controlling persons of the CMA comply with paragraphs (1) and (2) of this subsection.

(d) After a CMA receives a final investigative report from HHSC for an investigation described in subsection (c) of this section, the CMA 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 appropriate action within the CMA's authority to prevent the reoccurrence of abuse, neglect or exploitation, including, when warranted, disciplinary action against a staff person or volunteer of the CMA 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 CMA's authority, as necessary; and

(3) immediately, but not later than five calendar days after the date the CMA receives the HHSC final investigative report, notify the individual and the LAR of:

(A) the investigation finding; and

(B) the action taken by the CMA in response to the HHSC investigation as required by paragraphs (1) and (2) of this subsection.

(e) A CMA must not retaliate against:

(1) a staff person, 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; or

(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 the individual.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900484

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-3078


40 TAC §45.706

STATUTORY AUTHORITY

The repeal is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The repeal implements Texas Government Code, §531.0055, §531.021, and Texas Human Resources Code, §32.021.

§45.706.CMA Recordkeeping.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900485

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-3078


SUBCHAPTER H. ADDITIONAL DSA REQUIREMENTS

40 TAC §§45.802, 45.804, 45.807, 45.810, 45.811

STATUTORY AUTHORITY

The amendments and new sections are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendments and new sections implement Texas Government Code, §531.0055, §531.021, and Texas Human Resources Code, §32.021.

§45.802.DSA: Protection of Individuals and Annual Explanations.

(a) A DSA must have and implement written [human resource] policies and procedures that safeguard an individual against:

(1) infectious and communicable diseases;

(2) conflicts of interest with a service provider, staff person, volunteer, or controlling person of the DSA [staff persons];

(3) acts of financial impropriety by a service provider, staff person, volunteer, or controlling person of the DSA;

(4) abuse, neglect, and exploitation; and

(5) deliberate damage of personal possessions by a service provider, staff person, volunteer, or controlling person of the DSA.

(b) At least annually, a DSA must:

(1) provide an oral and written explanation of the topics described in §45.212(h)(1)(A) of this chapter (relating to Process for Enrollment of an Individual) to the individual and LAR or person actively involved with the individual; and

(2) educate the individual and LAR or person actively involved with the individual about protecting the individual from abuse, neglect, and exploitation.

(c) A DSA, in accordance with the CLASS Provider Manual, must report critical incidents to HHSC and the CMA using the CLASS/DBMD Notification of Critical Incidents form.

§45.804.Training of DSA Staff Persons, Service Providers, and Volunteers.

(a) A DSA must ensure:

(1) that a DSA staff person who has direct contact with an individual completes training as described in the CLASS Provider Manual; and

[(2) that a DSA staff person completes training on the CLASS Program and CFC, including the requirements of this chapter and the CLASS Program services and CFC services described in §45.104 of this chapter (relating to Description of the CLASS Program and CFC Option); and]

(2) [(3)] that a DSA staff person who is responsible for developing the PAS/HAB plan completes person-centered service planning training approved by HHSC:

(A) by June 1, 2017, if the staff person was hired on or before June 1, 2015; or

(B) within two years after the hire date, if the staff person was hired after June 1, 2015.

(b) A DSA must ensure that, before providing services to an individual:

(1) a service provider of habilitation completes:

(A) two hours of orientation covering the following:

(i) an overview of related conditions; and

(ii) an explanation of commonly performed tasks regarding habilitation;

(B) training in cardiopulmonary resuscitation and choking prevention that includes an in-person evaluation by a qualified instructor of the service provider's ability to perform these actions; and

(C) training in the habilitation activities necessary to meet the needs and characteristics of the individual to whom the service provider is assigned, in accordance with the CLASS Provider Manual, with training to occur in the individual's home with full participation from the individual, if possible; and

(2) a service provider of CFC PAS/HAB completes:

(A) two hours of orientation covering the following:

(i) an overview of related conditions; and

(ii) an explanation of commonly performed CFC PAS/HAB activities;

(B) training in cardiopulmonary resuscitation and choking prevention that includes an in-person evaluation by a qualified instructor of the service provider's ability to perform these actions; and

(C) [(B)] training in the CFC PAS/HAB activities necessary to meet the needs and characteristics of the individual to whom the service provider is assigned, in accordance with the CLASS Provider Manual, with training to occur in the individual's home with full participation from the individual, if possible.

(c) A DSA must, if requested by the individual or LAR:

(1) allow the individual or LAR to train a CFC PAS/HAB service provider in the specific assistance needed by the individual and to have the service provider perform CFC PAS/HAB in a manner that comports with the individual's personal, cultural, or religious preferences; and

(2) ensure that a CFC PAS/HAB service provider attends training by HHSC [or DADS] so the service provider meets any additional qualifications desired by the individual or LAR.

(d) The supervisor of a service provider of habilitation or CFC PAS/HAB must, in accordance with the CLASS Provider Manual, evaluate the performance of the service provider, in person, to ensure the needs of the individual are being met. The evaluation must occur annually.

(e) A DSA must:

(1) ensure that each service provider, staff person, and volunteer of the DSA:

(A) are trained on and knowledgeable of:

(i) acts that constitute abuse, neglect, and exploitation of an individual;

(ii) signs and symptoms of abuse, neglect, and exploitation; and

(iii) methods to prevent abuse, neglect, and exploitation;

(B) are instructed to report to DFPS immediately, but not later than 24 hours, 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, 1-800-252-5400; or

(ii) using the DFPS Abuse Hotline website; and

(C) are provided with the instructions described in subparagraph (B) of this paragraph in writing;

(2) conduct the activities described in paragraph (1)(A) - (C) of this subsection:

(A) within one year after the person's most recent training on abuse, neglect, and exploitation and annually thereafter, if the service provider, staff person, or volunteer of the DSA was hired before September 1, 2018; or

(B) before assuming job duties and annually thereafter, if the service provider, staff person, or volunteer of the DSA is hired on or after September 1, 2018; and

(3) document:

(A) the name of the person who received the training required by this subsection;

(B) the date the training was conducted; and

(C) the name of the person who conducted the training.

§45.807.DSA: Documentation of Services Delivered and [Systems and] Recordkeeping.

(a) A DSA must ensure that for each direct service provided, except adaptive aids, dental treatment, minor home modifications, CFC ERS, CFC support management, and a direct service that is documented through an electronic visit verification system as defined in §68.102 of this title (relating to Definitions), a service provider:

(1) documents:

(A) the type of service provided;

(B) the date and the time the service begins and ends;

(C) the type of contact (phone or face-to-face);

(D) the name of the person with whom the contact occurred;

(E) a description of the activity performed, unless the activity is a non-delegated task that is provided by an unlicensed service provider and is documented on the IPP;

(F) the signature and title of the service provider; and

(G) the progress or lack of progress in achieving a goal or objective in the individual's IPP in observable, measurable terms that directly relate to the specific goal or objective; and

(2) completes an HHSC Documentation of Services Delivered form to document the provision of a direct service that is supported by the documentation required in paragraph (1)(A)-(G) of this subsection.

(b) A DSA must ensure that, after a service provider makes the last entry on an HHSC Documentation of Services Delivered form, a staff person other than the service provider signs and dates the form as a timekeeper as verification of the accuracy of the information on the form.

(c) [(a)] A DSA must maintain a separate record for each individual receiving CLASS Program services and CFC services from the DSA. The individual's record must include:

(1) a copy of the individual's current IPC and any other IPC authorized for the current IPC period;

(2) a copy of the individual's current IPP and any other IPP developed for the current IPC period;

(3) a copy of the individual's current PAS/HAB plan;

(4) if transportation is included on the IPC as a habilitation activity or as an adaptive aid, a copy of the individual's transportation plan;

(5) a copy of the individual's current ID/RC Assessment and the original ID/RC Assessment, signed by a physician or, if applicable, the original level of care form signed by a physician prior to use of the ID/RC Assessment form;

(6) a copy of the current adaptive behavior screening assessment;

(7) a copy of the current HHSC [DADS] CLASS/DBMD Nursing Assessment form;

(8) a copy of the current Related Conditions Eligibility Screening Instrument;

[(9) documentation of the progress or lack of progress in achieving goals or outcomes in observable, measurable terms that directly relate to the specific goal or objective addressed;]

(9) [(10)] any new or revised HHSC [DADS] Provider Agency Model Service Backup Plan form for the current IPC period;

(10) the documentation required by subsection (a)(1) of this section;

(11) the completed HHSC Documentation of Services Delivered forms signed and dated by a timekeeper as required by subsection (b) of this section [the documentation required by subsection (b) of this section]; and

(12) any other relevant documentation concerning the individual.

[(b) A DSA must ensure a service provider documents in the individual's record:]

[(1) the type of CLASS Program service and CFC service provided;]

[(2) the date and the time the service begins and ends;]

[(3) the type of contact (phone or face-to-face);]

[(4) the name of the person with whom the contact occurred;]

[(5) a description of the activities performed, unless the activity performed is a non-delegated task that is provided by an unlicensed service provider and is documented on the IPP; and]

[(6) the signature and title of the service provider.]

§45.810.DSA: Reporting Allegations of Abuse, Neglect, or Exploitation of an Individual.

If a DSA, service provider, staff person, volunteer, or controlling person knows or suspects that an individual is being or has been abused, neglected, or exploited, the DSA 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 24 hours after having knowledge or suspicion, by:

(1) calling the DFPS Abuse Hotline toll-free telephone number, 1-800-252-5400; or

(2) using the DFPS Abuse Hotline website.

§45.811.DSA: Requirements Related to the Abuse, Neglect, and Exploitation of an Individual.

(a) If a report required by §45.810 of this subchapter (relating to DSA: Reporting Allegations of Abuse, Neglect, or Exploitation of an Individual) alleges abuse, neglect, or exploitation by a person who is not a service provider, staff person, volunteer, or controlling person of a DSA, the DSA must:

(1) as necessary:

(A) obtain immediate medical or psychological services for the individual; and

(B) assist in obtaining ongoing medical or psychological services for the individual; and

(2) discuss with the individual or LAR alternative residential settings and additional services that may help ensure the individual's safety.

(b) If a report required by §45.810 of this subchapter alleges abuse, neglect, or exploitation by a service provider, staff person, volunteer, or controlling person of a DSA; or if the DSA is notified by HHSC of an allegation of abuse, neglect, or exploitation by a service provider, staff person, volunteer, or controlling person of the DSA, the DSA must:

(1) as necessary:

(A) obtain immediate 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) preserve and protect any evidence related to the allegation; and

(4) as soon as possible, but no later than 24 hours, after the DSA reports or is notified of the allegation, notify the individual, the LAR, and the case manager of:

(A) the allegation report; and

(B) the actions the DSA 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.

(c) During an HHSC investigation of an alleged perpetrator who is a service provider, staff person, volunteer, or controlling person of the DSA, a DSA 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 DSA;

(B) individuals, service providers, staff persons, volunteers, and controlling persons; and

(C) records pertinent to the investigation of the allegation; and

(3) ensure that service providers, staff persons, volunteers, and controlling persons of the DSA comply with paragraphs (1) and (2) of this subsection.

(d) After a DSA receives a final investigative report from HHSC for an investigation described in subsection (c) of this section, the DSA 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 appropriate action within the DSA's authority to prevent the reoccurrence of abuse, neglect or exploitation, including, when warranted, disciplinary action against the service provider, staff person, or volunteer of the DSA 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 DSA's authority, as necessary; and

(3) immediately, but not later than five calendar days after the date the DSA receives the HHSC final investigative report, notify the individual, the LAR, and the case manager of:

(A) the investigation finding; and

(B) the action taken by the DSA in response to the HHSC investigation as required by paragraphs (1) and (2) of this subsection.

(e) A DSA must not retaliate against:

(1) a service provider, staff person, 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; or

(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 the individual.

(f) At least annually, a DSA must:

(1) review all final investigative reports from HHSC for investigations described in subsection (c) of this section 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; and

(2) evaluate critical incident data reported in accordance with §45.802(c) of this subchapter (relating to DSA: Protection of Individuals and Annual Explanations) and identify program process improvements that help prevent the occurrence of critical incidents and improve service delivery.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900486

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-3078


CHAPTER 47. PRIMARY HOME CARE, COMMUNITY ATTENDANT SERVICES, AND FAMILY CARE PROGRAMS

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

Therefore, the executive commissioner of HHSC proposes amendments to §§47.1, 47.3, 47.21, 47.23, 47.25, 47.41, 47.45, 47.47, 47.49, 47.57, 47.61, 47.63, 47.67, 47.69, 47.71, 47.73, 47.81, 47.83, 47.85, 47.89, and 47.91 in Title 40, Part 1, Chapter 47, Contracting to Provide Primary Home Care. The executive commissioner of HHSC also proposes new §§47.43, 47.74, 47.101, and 47.103 in Title 40, Part 1, Chapter 47. Finally, the executive commissioner of HHSC proposes the repeal of §§47.43, 47.59, and 47.72 in Title 40, Part 1, Chapter 47.

BACKGROUND AND PURPOSE

The proposed rules add requirements in Texas Administrative Code, Title 40 (40 TAC), Chapter 47 related to abuse, neglect, and exploitation of an individual receiving personal attendant services in the Primary Home Care (PHC) Program, Community Attendant Services (CAS) Program, or Family Care (FC) Program from a provider that is required to be licensed in accordance with 40 TAC Chapter 97, Licensing Standards for Home and Community Support Services Agencies. In the PHC, CAS, and FC Programs an individual may receive services through the provider option as described in 40 TAC Chapter 47; the service responsibility option (SRO) as described in 40 TAC Chapter 43, Service Responsibility Option; or the consumer directed services (CDS) option, as described in 40 TAC Chapter 41, Consumer Directed Services Option. Rules in Chapter 41 related to abuse, neglect, and exploitation of an individual receiving services through the CDS option are proposed elsewhere in this issue of the Texas Register.

The primary purpose of the proposed rules is to address changes in the investigatory process for abuse, neglect, and exploitation as a result of amendments to Texas Human Resources Code, Chapter 48, and Texas Family Code, Chapter 261, effective September 1, 2015. The amendments gave the Department of Family and Protective Services (DFPS) Adult Protective Services (APS) Provider Investigation (PI) Program the authority to investigate an allegation of abuse, neglect, or exploitation of an individual receiving Medicaid state plan services in the PHC and CAS Programs when the alleged perpetrator is a staff person or controlling person of a provider. Because the FC Program is not a Medicaid program, the amendments to state law did not change the investigatory process for abuse, neglect, and exploitation in the FC Program. Investigations in the FC Program remain under the authority of the DFPS APS In-Home Program when the alleged perpetrator is a staff person or controlling person of a provider.

Effective September 1, 2017, in accordance with Texas Government Code, §531.02011 and §531.02013, the functions performed by the DFPS APS PI Program were transferred to HHSC. Therefore, the proposed rules address investigations of allegations of abuse, neglect, and exploitation conducted by HHSC for an individual receiving services in the PHC and CAS Programs through the provider option and the SRO. The proposed rules also describe requirements for the provider to protect an individual from abuse, neglect, and exploitation and help ensure the health, safety, and welfare of an individual who is abused, neglected, or exploited.

The proposed rules also include the current requirements in 40 TAC §49.310, Abuse, Neglect, and Exploitation Allegations, that apply to a provider that contracts with HHSC to provide services in the PHC, CAS, and FC Programs. Rules in 40 TAC Chapter 49, Contracting for Community Services, are proposed for amendment in this issue of the Texas Register to exclude a provider providing services governed by Chapter 47 from complying with §49.310. These rules are proposed in Chapter 47 to use terminology specific to these programs; add specificity to the current requirements of §49.310; add new requirements; provide protections from abuse, neglect, and exploitation; and help ensure the health, safety, and welfare of an individual who is receiving services in each of these programs and who is abused, neglected, or exploited. The proposed rules require a provider to: (1) train staff persons on abuse, neglect, and exploitation before they assume job duties and at least annually; (2) ensure staff persons are trained and knowledgeable about signs and symptoms of abuse, neglect, or exploitation; (3) educate an individual and his or her representative about protecting the individual from abuse, neglect, and exploitation; and (4) give written information to each staff person on how to report abuse, neglect, or exploitation.

The proposed rules also define "abuse," "exploitation," "neglect," and other terms related to abuse, neglect, and exploitation to clarify the terms when used in this chapter. In addition, the proposed rules define the terms "chemical restraint," "mechanical restraint," "physical restraint," "restraint," and "seclusion." They also define "physical abuse" to include the use of a restraint or seclusion because the proposed rules prohibit the use of restraint or seclusion on an individual. This is consistent with DFPS rules, which provide that the use of restraint or seclusion not in compliance with rules constitutes physical abuse.

The proposed amendments also make changes in the title and throughout Chapter 47 to clarify that Chapter 47 governs personal attendant services provided to an individual receiving services in the PHC Program, CAS Program, and FC Program. The proposed amendments replace references to the PHC Program as consisting of PHC services, CAS, and FC services. The proposed amendments also clarify the requirements that apply to each program or programs. The proposed amendments change "DHS" and "DADS" to "HHSC" throughout Chapter 47 to reflect that DHS and DADS have both been abolished and functions have transferred to HHSC. The proposed amendments also change "case manager" to "case worker" throughout Chapter 47. The term "case worker" more accurately reflects the duties of this type of HHSC employee.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §47.1, Purpose, clarifies that Chapter 47 governs services provided in the PHC Program, CAS Program, and FC Program. The proposed amendment also clarifies that services in these programs may be provided through the "provider option" in addition to the SRO and the CDS option.

The proposed amendment to §47.3, Definitions, adds definitions of "abuse," "alleged perpetrator," "chemical restraint," "controlling person," "DFPS," "exploitation," "financial management services," "FMSA," "HHSC," "IADL," "mechanical restraint," "neglect," "physical abuse," "physical restraint," "restraint," "seclusion," "sexual abuse," "sexual activity," "sexual exploitation," "staff person," "verbal or emotional abuse," and "volunteer." Because §47.41 lists the tasks included as ADLs, the proposed amendment amends the definition of "ADL--Activity of daily living" to delete the list of tasks that qualify as ADLs. The proposed amendment defines "CAS Program--Community Attendant Services Program," "FC Program--Family Care Program," and "PHC Program--Primary Home Care Program," and deletes "PHC services," to describe each program and terminology used in the chapter. The proposed amendment defines "case worker" to replace "case manager" to update the title and definition of an HHSC employee who provides case authorization and management activities. The proposed amendment deletes the term "contract" because the contractual relationship between HHSC and a provider is described in the proposed changes in the definition of "provider." The proposed amendment amends the definition of "expedited referral" to clarify that such referrals apply to the PHC Program and CAS Program. The proposed amendment deletes the term "facsimile notice" because this term is replaced by the term "fax" in the proposed rules. The proposed amendment amends the definition of "imminent danger" because the list of whose safety is impacted varies in the rules that include this term. The proposed amendment deletes the definition of "signature" to allow for electronic records and, because the meaning of this term is clear in the context of the rules.

The proposed amendment to §47.21, Supervisor Training Requirements, adds the CAS Program and FC Program in the requirement for a provider to ensure the supervisor understands the rules and procedures of all three programs.

The proposed amendment to §47.23, Attendant Qualifications, makes editorial changes that reformat and clarify the current attendant qualifications. Because the CAS Program is the only program that can serve a minor, the proposed amendment limits the provision stating that an attendant must not be a legal parent, foster parent, or spouse of a parent of a minor to the CAS Program. The proposed amendment updates form titles.

The proposed amendment to §47.25, Attendant Orientation, deletes the language requiring a supervisor to record that an attendant's orientation includes notifying the provider of suspicions or allegations of abuse, neglect, or exploitation of the individual. These reporting and training requirements are relocated to proposed new §47.101.

The proposed amendment to §47.41, Allowable Tasks, makes editorial changes to update the terminology used to describe the two categories of allowable tasks. The proposed amendment also corrects the term "assistance with self-administration of medication," which is defined in 40 TAC §97.2, and uses a reference to §97.2 to update the definition of this term. The proposed amendment removes styling from the list of hair care activities not included in assistance with ADLs. Styling hair could include setting, rolling, or braiding hair, which are defined as part of assistance with ADLs. The proposed amendment also makes minor editorial changes to reformat the section and update terminology.

Proposed new §47.43, Referrals and Authorizations, replaces the current §47.43, Referrals, to clarify the use of referrals and authorizations in the PHC, CAS, and FC Programs. For the PHC Program and CAS Program, the proposed rule: (1) describes the two types of referrals and the methods an HHSC case worker uses to make each type of referral to a provider; (2) requires a provider to accept all referrals; (3) requires a provider, after the provider receives a referral, to conduct the pre-initiation activities described in §47.45; and (4) describes how HHSC makes an authorization determination and notifies the provider that services are authorized. Because HHSC does not make a referral to a provider before authorizing services in the FC Program, the proposed rule requires a provider in that program: (1) to accept all authorizations HHSC sends the provider on an HHSC Authorization for Community Care Services form; and (2) after the provider receives an authorization, to conduct the pre-initiation activities described in §47.45.

The proposed repeal of §47.43, Referrals, deletes the current requirement for a provider to accept all referrals for services.

The proposed amendment to §47.45, Pre-Initiation Activities, makes changes to clarify that a supervisor must complete the pre-initiation activities described in subsection (a)(1) and (2) of this section, while anyone acting on behalf of a provider can complete the activities described in subsection (a)(3) of this section. The proposed amendment deletes that a service delivery plan is on a single document. This requirement is included in the definition of "service delivery plan." The proposed amendment makes changes to clarify that the provider is not responsible for meeting the applicant's needs other than by providing the tasks described in §47.41 and agreed to on the service delivery plan. The proposed amendment clarifies that a provider must send a copy of a complete Practitioner's Statement of Medical Need form to HHSC before HHSC may authorize services in the PHC Program or CAS Program. The proposed amendment clarifies the requirements for expedited referrals and how a provider gets paid beginning on the negotiated service initiation date. The proposed amendment clarifies what constitutes a service delivery plan variance in the PHC Program and CAS Program, what constitutes a service delivery plan variance in the FC Program, and what a provider must do when a service delivery plan variance occurs. To improve the organization of the rules, the proposed amendment deletes subsection (b)(3) - (5) of this section addressing temporary service delivery plan changes and moves this material to §47.67. The proposed amendment clarifies the date by which a provider must complete pre-initiation activities in the PHC Program, CAS Program, and FC Program. The proposed amendment also makes changes to correct form titles and references, clarify rules and procedures that apply to each program or programs, update agency titles and terminology, and delete redundant language.

The proposed amendment to §47.47, Medical Need Determination, retitles the section and makes editorial changes to clarify the individuals for whom a provider must obtain and submit to HHSC the Practitioner's Statement of Medical Need form. The proposed amendment also reformats the section and updates agency names and terminology.

The proposed amendment to §47.49, Interdisciplinary Team, updates terminology, including program names and makes minor editorial changes.

The proposed amendment to §47.57, Service Delivery Options, updates terminology, including program names and makes minor editorial changes.

The proposed repeal of §47.59, Support Consultation, removes information about support consultation, which is duplicative of information found in 40 TAC Chapter 41, Consumer Directed Services Option, and 40 TAC Chapter 43, Service Responsibility Option.

The proposed amendment to §47.61, Service Initiation, clarifies when a provider in the PHC Program and CAS Program must initiate services and when a provider in the FC Program must initiate services. The proposed amendment also updates terminology and makes minor editorial changes.

The proposed amendment to §47.63, Service Delivery, updates terminology and makes minor editorial changes.

The proposed amendment to §47.67, Service Delivery Plan Changes, adds new subsection (f) to replace the rules on temporary service delivery plan changes deleted in the proposed amendment to §47.45. New subsection (f) describes when a provider may temporarily change an individual's service delivery plan, requirements if a temporary change in tasks on the service delivery plan will continue for more than 60 days or result in more hours of service provided than have been approved, and the documentation a provider must maintain in an individual's file regarding a temporary change in the service delivery plan. The proposed amendment makes editorial changes to clarify that the documentation required in subsection (c)(4) of this section is for an immediate increase in hours of service. Because the proposed amendment adds a new subsection (f), it also clarifies that the requirements in subsections (d) and (e) apply to the service delivery plan changes described in subsections (a) - (c) of this section. The proposed amendment updates terminology and makes minor editorial changes.

The proposed amendment to §47.69, Transfers, updates terminology and inserts a form title.

The proposed amendment to §47.71, Suspensions, makes editorial changes to clarify that the requirement for a provider to suspend services if HHSC denies an individual's Medicaid eligibility applies to individuals receiving services in the PHC Program or CAS Program. The proposed amendment also updates terminology and makes other minor editorial changes.

The proposed repeal of §47.72, Compliance with Program Requirements, deletes a provision permitting HHSC to terminate an individual's services after multiple suspensions and a provision giving an individual a right to appeal. The rules on termination and right to appeal for these programs are found in 40 TAC §48.3903 Denial, Reduction, and Termination of Benefits.

The proposed amendment to §47.73, Annual Reauthorization of Community Attendant Services, retitles the section to use the defined acronym for the CAS Program. The proposed amendment updates terminology and makes minor editorial changes.

Proposed new §47.74, Prohibition of Restraint and Seclusion, prohibits a provider from using restraint or seclusion while providing services in the PHC, CAS, and FC Programs.

The proposed amendment to §47.81, Monitoring Medicaid Eligibility, states that HHSC does not pay a provider for services delivered to an individual who is not eligible for Medicaid at the time the provider delivered the services. This replaces the statement that a provider is not entitled to payment for services delivered if the provider fails to verify the individual has current Medicaid eligibility. The proposed amendment also updates agency titles and terminology.

The proposed amendment to §47.83, Monitoring Reviews, deletes rules on fiscal monitoring because these rules were replaced by the rules in 40 TAC §49.411, Contract and Fiscal Monitoring.

The proposed amendment to §47.85, Retroactive Payment Procedures, clarifies that HHSC does not pay a provider for services provided to an individual before the date the provider completes the pre-initiation activities and processes the intake referral as described in this section. The proposed amendment also updates terminology, corrects titles in references, and makes minor editorial changes.

The proposed amendment to §47.89, Reimbursement, changes "seven minutes or less" to "less than eight minutes" in the description of how a provider bills HHSC in quarter-hour increments. The proposed amendment also updates agency names.

The proposed amendment to §47.91, Utilization Review, makes a minor editorial change and updates terminology and agency names.

Proposed new §47.101, Requirements for Providers Related to the Abuse, Neglect, and Exploitation of an Individual, requires a provider to ensure that an individual and his or her representative are: (1) informed of how to report an allegation of abuse, neglect or exploitation to DFPS; and (2) educated about protecting the individual from abuse, neglect, and exploitation. The purpose of educating the individual and representative about protecting the individual from abuse, neglect, and exploitation is to help ensure the health and safety of the individual. The proposed rule requires a provider to ensure that each staff person is trained and knowledgeable about acts that constitute, signs and symptoms of, and methods to prevent abuse, neglect, and exploitation. The proposed rule requires a provider to instruct each staff person to report to DFPS immediately, but not later than 24 hours, after having knowledge or suspicion that an individual has been or is being abused, neglected, or exploited. If a provider, staff person, or controlling person knows or suspects an individual is being or has been abused, neglected, or exploited, the proposed rule requires the provider to 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 24 hours, after having knowledge or suspicion. The proposed rule also requires a provider to secure the safety of the individual, and notify the individual or representative of the allegation of abuse, neglect, or exploitation and the safety measures the provider will take based on the allegation. The proposed rule prohibits a provider from retaliating against a staff person, 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. The proposed rule also prohibits a provider from retaliating against 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 the individual. Further, the proposed rule requires a provider to review reports of abuse, neglect, or exploitation and all final investigative reports from HHSC and identify program process improvements that will prevent the occurrence of abuse, neglect, and exploitation and improve the delivery of services.

Proposed new §47.103, Requirements for Providers Related to the Abuse, Neglect, and Exploitation of an Individual Receiving Services in the PHC Program and CAS Program Through the Agency Option or the Service Responsibility Option, applies when an individual is receiving services in the PHC Program or CAS Program through the agency option or the SRO. The proposed rule describes the actions that a provider must take when a report required by proposed new §47.101(b) is made or HHSC notifies the provider of an allegation that a staff person or controlling person abused, neglected, or exploited an individual. The proposed rule requires a provider, during an HHSC investigation of an alleged perpetrator who is a staff person or controlling person, to cooperate with the investigation; provide HHSC access to sites, individuals, staff persons, controlling persons, and pertinent records; and ensure that staff persons and controlling persons comply with these requirements. The proposed rule describes the actions a provider must take after the provider receives a final investigative report from HHSC. The proposed rule also includes requirements regarding the provider notifying the individual, the representative, and the case worker of the investigation finding and the action taken by the provider in response to the HHSC investigation.

FISCAL NOTE

Ms. Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that, for each year of the first five years that the sections will be in effect, there is no anticipated impact to costs and revenues of state or local governments as a result of enforcing and administering the sections as proposed.

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

(3) implementation of the proposed rules will not require an increase or decrease in future legislative appropriations;

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

(5) the proposed rules will create new rules;

(6) the proposed rules will expand an existing rule;

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

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

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

Ms. Greta Rymal, Deputy Executive Commissioner for Financial Services, has also determined that there will be an adverse economic effect on providers that are small businesses or micro-businesses. HHSC lacks sufficient data to estimate the number of providers designated as a small business or micro-business that would be impacted by the proposed rules. Providers may incur a cost for revising policies and procedures; providing training related to abuse, neglect, and exploitation; and revising written information that must be given to staff and individuals, but HHSC is unable to estimate these provider costs.

HHSC has determined that alternative methods to achieve the purpose of the proposed rules for small businesses or micro-businesses would not be consistent with ensuring the health and safety of individuals receiving services in the PHC, CAS, or FC Programs.

Ms. Rymal has also determined that there will not be an adverse economic effect on rural communities because no rural communities contract as providers in the PHC, CAS, or FC Programs.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There is an anticipated economic cost to persons who are required to comply with the sections as proposed because providers may incur a cost for revising policies and procedures; providing training related to abuse, neglect, and exploitation; and revising written information that must be given to staff and individuals. HHSC lacks sufficient data to provide an estimate of economic impact.

There is no anticipated negative impact on local employment.

COSTS TO REGULATED PERSONS

Texas Government Code, §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas and to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT

Stephanie Muth, State Medicaid Director, has determined that for each year of the first five years the sections are in effect, the public will benefit from the adoption of the sections. The public benefit anticipated as a result of enforcing or administering the sections will be an improved system that identifies, addresses, and seeks to prevent abuse, neglect, and exploitation, and provides greater protections for individuals who are subjected to abuse, neglect, and exploitation. The public benefit anticipated as a result of enforcing or administering the sections will also be clarifying program requirements for providers and individuals receiving services.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

Written comments on the proposal may be submitted to the Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 4900 North Lamar Boulevard, Austin, Texas 78751; or e-mailed to HHSRulesCoordinationOffice@hhsc.state.tx.us.

To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) e-mailed by midnight on the last day of the comment period. When e-mailing comments, please indicate "Comments on Proposed Rule 40R012" in the subject line.

SUBCHAPTER A. INTRODUCTION

40 TAC §47.1, §47.3

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendments affect Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §32.021.

§47.1.Purpose.

(a) This chapter establishes the requirements for a provider contracting to provide community-based services to an individual through the [DADS] PHC Program, CAS Program, and FC Program. In these programs, [PHC Program] services may be provided through the provider option [a home and community support services agency], the service responsibility option (SRO), or the consumer directed services (CDS) option of service delivery. The SRO is described in Chapter 43 of this title (relating to Service Responsibility Option) and the CDS option is described in Chapter 41 of this title (relating to Consumer Directed Services Option).

(b) The requirements in this chapter apply to the PHC Program, CAS Program, and FC Program [services, FC services, and CAS,] unless otherwise specified in the text.

§47.3.Definitions.

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

(1) Abuse--

(A) physical abuse;

(B) sexual abuse; or

(C) verbal or emotional abuse.

(2) [(1)] ADL--Activity of daily living. An activity that is essential to daily self-care [self care, including bathing, dressing, grooming, routine hair and skin care, meal preparation, feeding, exercising, toileting, transferring, and ambulation]. An ADL does not include a service that must be provided or supervised by licensed personnel.

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

(4) [(2)] Attendant--A person who provides authorized tasks to an individual.

[(3) CAS--Community attendant services. A service under the PHC Program providing in-home attendant services to individuals with an approved medical need for assistance with personal care tasks. CAS (formerly known as §1929(b) or frail elderly) are provided under Title XIX of the federal Social Security Act (relating to Grants to States for Medical Assistance Programs) at 42 U.S.C. §1396t (relating to Home and Community Care for Functionally Disabled Elderly Individuals).]

[(4) Case manager--A DADS employee who is responsible for case management activities. Activities include eligibility determination, individual registration, assessment and reassessment of an individual's needs, service delivery plan development, and intercession on the individual's behalf.]

(5) CAS Program--Community Attendant Services Program. A Medicaid state plan program authorized under Title XIX, §1929(b) of the Social Security Act that provides personal attendant services to an eligible individual.

(6) Case worker--An HHSC employee who is responsible for case authorization and management activities.

(7) 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.

[(5) Contract--The formal, written agreement between DADS and a provider to provide PHC Program services to an individual eligible under this chapter in exchange for reimbursement.]

(8) [(6)] Contract manager--An HHSC [A DADS] employee who is responsible for the overall management of the contract with the provider.

(9) Controlling person--A person who:

(A) has an ownership interest in a provider;

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

(C) is a partner in a partnership that is a provider;

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

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

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

(10) [(7)] Days--Any reference to days means calendar days, unless otherwise specified in the text. Calendar days include weekends and holidays.

[(8) DADS--The Department of Aging and Disability Services.]

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

(12) [(9)] Expedited referral--In the PHC Program or CAS Program, an [An] oral request from a case worker [manager] to a provider when the case worker [manager] determines that an individual's needs require that pre-initiation activities be completed in less than 14 days. [The completion date is negotiated between the case manager and provider.]

(13) 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. In the FC Program, if services are not provided through the CDS option, exploitation includes theft as defined in Chapter 31 of the Texas Penal Code.

(14) FC Program--Family Care Program. A program authorized under Title XX, Subtitle A, of the Social Security Act that provides personal attendant services to an eligible individual.

(15) Financial management services--A service, as defined in §41.103 of this title (relating to Definitions), that is provided to an individual participating in the consumer directed services option.

(16) FMSA--Financial management services agency. As defined in §41.103 of this title, an entity that provides financial management services to an individual participating in the consumer directed services option.

[(10) Facsimile notice--written information sent to a designated number via facsimile.]

[(11) FC services--Family Care services. A service under the PHC Program providing in-home attendant services to eligible adults. FC services are provided under Title XX of the federal Social Security Act (relating to Block Grants to States for Social Services) at 42 U.S.C. §1397 et seq.]

(17) [(12)] Functional limitation--An individual's requirement for assistance with one or more ADLs caused by a physical limitation or disability.

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

(19) IADL--Instrumental activities of daily living. Activities related to living independently in the community.

(20) [(13)] Imminent danger--An immediate or [,] real threat [to a person's safety].

(21) [(14)] Individual--A person who is enrolled in the PHC Program, CAS Program, or FC Program and, unless the context indicates otherwise, the person's representative.

(22) 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.

(23) [(15)] Medical need--A medical diagnosis that results in a functional limitation.

(24) 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.

(25) [(16)] Non-priority--The eligibility status for service delivery as determined by the case worker [manager] for an individual who does not meet the criteria described in §48.2918(d) of this title (relating to Primary Home Care or Community Attendant Services). Services delivered to such an individual may be referred to as non-priority services, and an attendant who serves such an individual may be referred to as a non-priority attendant.

(26) [(17)] Notice--Includes oral, fax [facsimile], secure email, [e-mail] and other forms of written notice.

(27) [(18)] Oral notice--Directly speaking with a person. Oral notice does not include a message left by voice mail.

(28) [(19)] PHC Program--Primary Home Care Program. A Medicaid state plan program authorized under Title XIX, §1902(a)(10)(A) of the Social Security Act that provides personal [DADS] attendant [care] services to an eligible individual [program. CAS, PHC, and FC are the three types of services available under the PHC Program].

(29) 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; or

(C) the use of a restraint or seclusion.

(30) 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.

[(20) PHC services--A service under the PHC Program providing in-home attendant services to an individual with an approved medical need for assistance with personal care tasks. PHC services are provided under Title XIX of the federal Social Security Act, at 42 U.S.C. §1396a (relating to State plans for medical assistance).]

(31) [(21)] Practitioner--A person who holds a doctor of medicine or doctor of osteopathy degree and is currently licensed in Texas, Louisiana, Arkansas, Oklahoma or New Mexico; a physician assistant currently licensed in Texas; or a registered nurse approved by the Texas Board of Nursing to practice as an advanced practice registered nurse.

(32) [(22)] Practitioner's statement--The HHSC [DADS'] Practitioner's Statement of Medical Need form.

(33) [(23)] Priority--The eligibility status for service delivery as determined by the case worker [manager] for an individual who meets the criteria described in §48.2918(d) of this title. Services delivered to such an individual may be referred to as priority services, and an attendant who serves such an individual may be referred to as a priority attendant.

(34) [(24)] Provider--A licensed home and community support services agency that has a contract with HHSC to provide PHC Program, CAS Program, and FC Program services.

(35) [(25)] Reckless behavior--Acting with conscious indifference to the consequences.

(36) [(26)] Regional nurse--An HHSC [A DADS] employee who is responsible for authorizing the CAS Program for an individual [to receive CAS].

(37) [(27)] Representative--An individual's spouse, other responsible party, designated representative, or legally authorized representative.

(38) Restraint--Any of the following:

(A) a chemical restraint;

(B) a mechanical restraint; or

(C) a physical restraint.

(39) [(28)] Routine referral--In the PHC Program or CAS Program, a [A] written request from the case worker [manager] to a provider to evaluate an individual for service delivery when the case worker [manager] determines that the individual's needs do not require an expedited referral.

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

(41) [(29)] Secure email [e-mail notice]--Electronic mail that uses [Written information sent via electronic mail using] sufficient precautions to protect the privacy and security of identifying information in compliance with the requirements of the Health Insurance Portability and Accountability Act of 1996.

(42) [(30)] Service delivery plan--A single document that is agreed upon and signed by an individual and a provider containing the elements described in §47.45(a)(2) of this chapter (relating to Pre-Initiation Activities). A single document may be more than one page.

(43) [(31)] Service schedule--A schedule for delivering attendant services containing the elements described in §47.45(a)(2)(C)(iii) of this chapter.

(44) 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 staff person or controlling person, unless a consensual sexual relationship with an adult individual existed before the staff person or controlling person became a staff person or controlling person.

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

(46) 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.

(47) Staff person--An employee, contractor, or volunteer of a provider.

[(32) Signature--A person's name written in longhand or a mark representing his or her name on a document to certify it is correct. Initials are not an acceptable substitute for a signature if the person has the ability to write in longhand.]

(48) [(33)] Supervisor--A provider employee who:

(A) coordinates the delivery of services in an individual's service delivery plan;

(B) supervises attendants; and

(C) meets the requirements for a supervisor in accordance with §97.404 of this title (relating to Standards Specific to Agencies Licensed to Provide Personal Assistance Services).

(49) 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.

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

(51) [(34)] Working day--Any day except a Saturday, Sunday, or national or state holiday listed in Texas Government Code §662.003(a) or (b).

[(35) Written--Information recorded on paper or other legible document.]

[(36) Written notice--Written information sent via mail, facsimile, secured email, or hand delivered.]

[(37) Utilization review--A planned, systematic review of service utilization to evaluate efficiency, quality, and appropriateness of services and service delivery plans. Utilization review may include routinely scheduled review of services or providers, or may be focused on an identified issue.]

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900443

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-5645


SUBCHAPTER C. STAFF REQUIREMENTS

40 TAC §§47.21, 47.23, 47.25

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendments affect Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §32.021.

§47.21.Supervisor Training Requirements.

(a) General training. A provider must train a supervisor as described in §97.245 of this title (relating to Staffing Policies).

(b) Program-specific training. The provider must ensure the supervisor understands the applicable rules and procedures of the PHC Program, CAS Program, and FC Program.

§47.23.Attendant Qualifications.

An [In addition to the requirements described in §97.404 of this title (relating to Standards Specific to Agencies Licensed to Provide Personal Assistance Services), an] attendant must:

(1) meet the requirements described in §97.404(c) of this title (relating to Standards Specific to Agencies Licensed to Provide Personal Assistance Services);

(2) [(1)] not be a legal parent, foster parent, or spouse of a parent of a minor who receives services in the CAS Program [the service];

(3) [(2)] not be the spouse of the individual who receives the service, except for services in the FC Program [services]; and

(4) [(3)] not be designated by an HHSC [a DADS] case worker [manager] on HHSC's Authorization for Community Care Services [DADS' authorization for community care services] form as "Do not hire."

§47.25.Attendant Orientation.

(a) Orientation. In addition to the requirements described in this section, a provider must ensure each attendant is oriented as described in Chapter 97, Subchapter C, of this title (relating to Minimum Standards for All Home and Community Support Services Agencies) and §97.404 of this title (relating to Standards Specific to Agencies Licensed to Provide Personal Assistance Services). Orientation is not required for a supervisor when providing personal assistance services.

(b) Method of orientation.

(1) A supervisor must determine the method of attendant orientation, which may be conducted:

(A) in person, with the participation of the individual; or

(B) by telephone or in person [verbally] at any location without the participation of the individual at the discretion of the supervisor, if the attendant:

(i) meets the requirements described in §97.701 of this title (relating to Home Health Aides);

(ii) has six continuous months of experience in delivering attendant care;

(iii) has been oriented to the individual and there are service delivery plan changes; or

(iv) has previously provided services to the individual.

(2) The supervisor may use discretion to determine if the attendant needs to be oriented if:

(A) the attendant previously provided services to the individual; and

(B) the service delivery plan has not changed since the attendant provided services to the individual.

(c) Due dates. The supervisor must orient each attendant on or before the time the attendant begins to provide attendant services.

(d) Documentation of attendant orientation.

(1) The supervisor must record the attendant orientation on a single document that includes:

(A) the individual's name and number assigned to the individual by HHSC [DADS];

(B) the attendant's name;

(C) the date of the attendant orientation;

(D) if the orientation was conducted in person with the individual or without the participation of the individual;

(E) information about how the individual's condition affects the performance of tasks;

(F) the tasks to be performed;

(G) the service schedule;

(H) the number of hours of service the attendant is to provide;

(I) the total number of hours of service the individual is authorized to receive;

(J) safety and emergency procedures, including universal precautions;

(K) specific situations about which the attendant must notify the provider, including:

(i) changes in the individual's needs;

(ii) incidents that affect the individual's condition;

(iii) hospitalization of the individual;

(iv) the individual's absence or relocation from home; and

(v) the attendant's inability to work; and

[(vi) suspicions or allegations of abuse, neglect, or exploitation of the individual; and]

(L) the signature of:

(i) the supervisor who conducts the orientation;

(ii) the attendant who is oriented, if present; and

(iii) the individual, if present.

(2) The provider must maintain documentation of the attendant orientation in the individual's file.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900444

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-5645


SUBCHAPTER D. SERVICE PLAN DEVELOPMENT

40 TAC §§47.41, 47.43, 47.45, 47.47, 47.49

STATUTORY AUTHORITY

The amendments and new section are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendments and new section affect Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §32.021.

§47.41.Allowable Tasks.

The PHC Program, CAS Program, and FC Program include [includes] the following tasks:

(1) assistance with ADLs, [personal care tasks related to the care of the individual's physical well being,] including:

(A) bathing, which is:

(i) drawing water in sink, basin, or tub;

(ii) hauling or heating water;

(iii) laying out supplies;

(iv) assisting in or out of tub or shower;

(v) sponge bathing and drying;

(vi) bed bathing and drying;

(vii) tub bathing and drying; and

(viii) providing standby assistance for safety;

(B) dressing, which is:

(i) dressing the individual;

(ii) undressing the individual; and

(iii) laying out clothes;

(C) meal preparation, which is:

(i) cooking a full meal;

(ii) warming up prepared food;

(iii) planning meals;

(iv) helping prepare meals; and

(v) cutting an individual’s [client's ] food for eating;

(D) feeding/eating, which is:

(i) spoon-feeding;

(ii) bottle-feeding;

(iii) assisting with using eating and drinking utensils and adaptive devices, not including tube feeding; and

(iv) providing standby assistance or encouragement;

(E) exercise, which is walking with the individual;

(F) grooming, shaving, or oral care, which is:

(i) shaving;

(ii) brushing teeth;

(iii) shaving underarms and legs, when requested;

(iv) caring for nails; and

(v) laying out supplies;

(G) routine hair or skin care, which is:

(i) washing hair;

(ii) drying hair;

(iii) assisting with setting, rolling, or braiding hair, not including [styling,] cutting [,] or chemical processing of hair;

(iv) combing or brushing hair;

(v) applying nonprescription lotion to skin;

(vi) washing hands and face;

(vii) applying makeup; and

(viii) laying out supplies;

(H) assistance with self-administration of medication [self-administered medications, which is assistance with medication] as defined in §97.2 [§97.2(11) ] of this title (relating to Definitions);

(I) toileting, which is:

(i) changing diapers;

(ii) changing colostomy bag or emptying catheter bag;

(iii) assisting on or off bedpan;

(iv) assisting with the use of a urinal;

(v) assisting with feminine hygiene needs;

(vi) assisting with clothing during toileting;

(vii) assisting with toilet hygiene, including the use of toilet paper and washing hands;

(viii) changing external catheter;

(ix) preparing toileting supplies and equipment, not including preparing catheter equipment; and

(x) providing standby assistance; [and]

(J) transfer, which is:

(i) non-ambulatory movement from one stationary position to another, not including carrying;

(ii) adjusting or changing the individual's position in a bed or chair (positioning); and

(iii) assisting in rising from a sitting to a standing position; [and]

(K) ambulation, which is:

(i) assisting in positioning for use of a walking apparatus;

(ii) assisting with putting on and removing leg braces and prostheses for ambulation;

(iii) assisting with ambulation or using steps;

(iv) assisting with wheelchair ambulation; and

(v) providing standby assistance; and

(2) assistance with IADLs [home management tasks that support the individual's health and safety], including:

(A) cleaning, including [which is]:

(i) cleaning up after the individual's ADLs [personal care tasks];

(ii) emptying and cleaning the individual's bedside commode;

(iii) cleaning the individual's bathroom;

(iv) changing the individual's bed linens and making the individual's bed;

(v) cleaning floor of living areas used by the individual;

(vi) dusting areas used by the individual;

(vii) carrying out the trash and setting out garbage for pick up;

(viii) cleaning stovetop and counters;

(ix) washing the individual's dishes; and

(x) cleaning refrigerator and stove;

(B) laundry, including [which is]:

(i) doing hand wash;

(ii) gathering and sorting;

(iii) loading and unloading machines in residence;

(iv) using laundromat machines;

(v) hanging clothes to dry;

(vi) folding and putting away clothes; and

(C) shopping, including [which is]:

(i) preparing a shopping list;

(ii) going to the store and purchasing or picking up items;

(iii) picking up medication; and

(iv) storing the individual's purchased items; and

(D) [(3)] escorting, including:

(i) [(A)] accompanying the individual outside the home to support the individual in living in the community;

(ii) [(B)] arranging for transportation, not including direct individual transportation;

(iii) [(C)] accompanying the individual to a clinic, doctor's office, or location for medical diagnosis or treatment; and

(iv) [(D)] waiting in the doctor's office or clinic with an individual if necessary due to client's condition or distance from home.

§47.43.Referrals and Authorizations.

(a) Referrals in the PHC Program and CAS Program. HHSC makes a referral to a provider to begin pre-initiation activities in the PHC Program and CAS Program.

(1) Methods of referral.

(A) If an individual's needs require that a provider complete pre-initiation activities in less than 14 days after a referral, the case worker makes an expedited referral by oral notice and on HHSC's Authorization for Community Care Services form.

(B) If an individual's needs do not require that a provider complete pre-initiation activities in less than 14 days after a referral, the case worker makes a routine referral on HHSC's Authorization for Community Care Services form.

(2) A provider must accept all referrals.

(3) After a provider receives a referral, the provider must conduct the pre-initiation activities as described in §47.45 of this subchapter (relating to Pre-Initiation Activities).

(b) Authorizations in the PHC Program and CAS Program. After a provider completes the pre-initiation activities, HHSC makes an authorization determination and notifies the provider that services are authorized by sending the provider an HHSC Authorization for Community Care Services form.

(c) Authorizations in the FC Program. HHSC does not make a referral to a provider before authorizing services in the FC Program.

(1) HHSC authorizes services for an individual in the FC Program by sending a provider an HHSC Authorization for Community Care Services form.

(2) A provider must accept all authorizations.

(3) After a provider receives an authorization, the provider must conduct the pre-initiation activities as described in §47.45 of this subchapter.

§47.45.Pre-Initiation Activities.

(a) Pre-initiation activities. [A supervisor must complete the following activities]

(1) For [for] each referral for the PHC Program or CAS Program or for each authorization for the FC Program, a [.]

(1) [The] supervisor must conduct an evaluation.

(A) An [The] evaluation must be a single document that includes the individual's self-report of:

(i) the dates and reasons for any hospitalization within the last three months; and

(ii) the assistance needed for the individual to perform ADLs and IADLs, including any assistive devices or medical equipment used by the individual [person].

(B) If the provider determines during the evaluation that the individual exhibits reckless behavior that results in imminent danger to the health and safety of the individual or provider staff, the provider must convene an Interdisciplinary Team meeting as described in §47.49 of this subchapter [chapter] (relating to Interdisciplinary Team) to discuss the barriers to service delivery.

(2) For each referral for the PHC Program or CAS Program, or for each authorization for the FC Program, a [The] supervisor must develop a service delivery plan [on a single document] that:

(A) is agreed upon and signed by the individual and the provider;

(B) indicates the location of service delivery; and

(C) records the following:

(i) the tasks which the individual is authorized to receive;

(ii) the total weekly hours of service HHSC [DADS] authorizes the individual to receive;

(iii) the service schedule, which must include as necessary, based on an individual's needs, certain time periods for the delivery of specified tasks;

(iv) frequency of supervisory visits; and

(v) a statement that:

(I) [the PHC Program] only [provides] the tasks [allowable in the program as] described in §47.41 of this subchapter [chapter] (relating to Allowable Tasks), and agreed to on the service delivery plan, may be provided; and

(II) the provider is not responsible for meeting the applicant's needs other than by providing the tasks described in §47.41 of this subchapter and agreed to on the service delivery plan [allowed under the PHC Program].

(3) In the PHC Program or CAS Program, a [The] provider must obtain a complete Practitioner's Statement of Medical Need form [practitioner's statement] and submit the form for HHSC’s [DADS'] review as described in §47.47 of this subchapter [chapter ] (relating to Determination of Medical Need [Determination ]). [This paragraph does not apply to FC services.]

(A) Routine referrals. [For routine referrals, the provider must:]

(i) A provider must send a copy of a complete Practitioner's Statement of Medical Need form [the practitioner's statement] to HHSC before HHSC may authorize an individual to receive services. [DADS by facsimile or secured email; or]

(ii) A provider must send a copy of the form by fax, secure email, or mail.

[(ii) mail a copy of the practitioner's statement to DADS.]

(B) Expedited referrals. [For expedited referrals:]

(i) HHSC [DADS] may authorize services for an individual [send the authorization for community services form pending receipt of the practitioner's statement] if the provider notifies HHSC [DADS] that the provider has received a complete practitioner's statement that documents the individual's medical condition is the cause of the individual's functional impairment.

(ii) After [Upon] notification that a provider has the [of a] completed practitioner's statement described in clause (i) of this subparagraph, HHSC [DADS] and the provider will negotiate a service initiation [start-of-care] date.

(iii) For HHSC to pay a provider beginning on the negotiated service initiation date, the [The] provider must send the complete practitioner's statement to HHSC [DADS] within 7 working days after service initiation.

(iv) If a provider does not send the complete practitioner's statement [is not sent] to HHSC [DADS] within 7 working days after service initiation, HHSC does not pay the provider [is not entitled to payment from DADS] until HHSC [the date DADS] receives the completed practitioner’s statement. In this circumstance, HHSC changes [DADS will change] the service initiation date to the date HHSC [DADS] receives the completed practitioner's statement.

(v) The signature date of the practitioner must be on or before the negotiated service initiation [start-of-care ] date.

(b) Service delivery plan variances.

(1) A [The] provider in the PHC Program and CAS Program must notify the case worker [manager of a variance in the service delivery plan] when the initial service delivery plan developed by the provider:

(A) has more hours than the number of hours on the referral portion of HHSC's Authorization for Community Care Services [authorized on DADS' authorization for community care services]form; or

(B) has no ADLs. [personal care services, except for FC services; or]

[(C) is temporarily changed as described in paragraph (3) of this subsection.]

(2) A provider in the FC Program must:

(A) notify the case worker when the initial service delivery plan developed by the provider has more hours than the number of hours authorized on HHSC's Authorization for Community Care Services form; and

(B) provide services according to HHSC's Authorization for Community Care Services form until the provider receives a new form from the case worker.

[(2) The provider must provide services according to the existing service delivery plan, until the provider receives a new DADS' authorization for community care services form, except the provider may temporarily change the service delivery plan if:]

[(A) the individual requests and requires temporary assistance with allowable tasks not identified on the service delivery plan due to a change in circumstances or available supports; and]

[(B) the change in tasks does not increase the total approved hours of service or continue for more than 60 days.]

[(3) The provider must request and obtain a new DADS authorization for community services form when a temporary variance in tasks on the service delivery plan is to continue for more than 60 days or would result in more hours of service provided than have been approved.]

[(4) The provider must request a new DADS authorization for community care services form before a temporary variance from the service delivery plan continues for more than 60 days.]

[(5) The provider must maintain the following documentation regarding the temporary service delivery plan variance in the individual's file:]

[(A) the specific variance in the service delivery plan;]

[(B) the duration of the temporary variance; and]

[(C) the reason for the temporary variance as described in paragraph (3) of this subsection.]

(c) Pre-initiation activities due date. A [The] provider must:

(1) in the PHC Program or CAS Program complete the pre-initiation activities as follows:

(A) [(1)] for routine referrals, within 14 days after one of the following dates, whichever is later:

(i) [(A)] the referral date on HHSC’s Authorization for Community Care Services [DADS' authorization for community care services] form; or

(ii) [(B)] the date the provider receives the referral [DADS' authorization for community care services form], unless the provider fails to stamp the receipt date on HHSC’s Authorization for Community Care Services [the] form, in which case the referral date will be used to determine timeliness; and

(B) [(2)] for expedited referrals, by the date negotiated between the case worker [manager] and provider, which must be less than 14 days after the oral request; and [.]

(2) in the FC Program, complete the pre-initiation activities within 14 days after the provider receives HHSC's Authorization for Community Care Services form.

(d) Delay in pre-initiation activities.

(1) A provider may delay meeting the due dates in subsection (c) of this section only for reasons beyond its control such as natural or other disasters. The provider must continue efforts to complete pre-initiation activities and set a date, if possible, for completion of pre-initiation activities.

(2) A [The] provider must document any failure to complete the pre-initiation activities for routine referrals by the due date, including:

(A) the reason for the delay[, which must be beyond the provider's control];

(B) either the date the provider anticipates it will complete the pre-initiation activities or specific reasons why the provider cannot anticipate a completion date; and

(C) a description of the provider's ongoing efforts to complete pre-initiation activities.

(3) A [The] provider must notify the case worker [manager] of any failure to complete the pre-initiation activities for expedited referrals before the negotiated date for completion of pre-initiation activities. The case worker [manager] may refer the individual to another provider.

(e) Documentation of pre-initiation activities.

(1) A [The] provider may combine the evaluation and service delivery plan into a single document, but each item must be clearly identifiable.

(2) A [The] provider must maintain documentation of the pre-initiation activities in the individual's file.

§47.47.Determination of Medical Need [Determination].

[(a) Applicability. This section does not apply to FC services or transfers of individuals in the PHC Program.]

(a) [(b)] Determining medical need. A provider must obtain and submit a complete Practitioner's Statement of Medical Need form [practitioner's statement] to HHSC [DADS] for review [by the applicable due date], as described in §47.45 [§47.45(c) ] of this subchapter [chapter], (relating to Pre-Initiation Activities) for:

(1) an individual whom HHSC [DADS] refers to the provider, [(] unless the individual requests and is to receive FC Program services [)];

(2) an individual currently receiving FC Program services whom HHSC [DADS] refers to the provider for the PHC Program [services] or CAS Program; and

(3) an individual currently receiving services whom HHSC [DADS] refers to the provider to have medical need reassessed, as requested by the case worker [manager], such as when the initial medical need was established for a limited time.

(b) [(c)] Submitting a Practitioner's Statement of Medical Need form [practitioner's statement]. A provider must submit a complete form [practitioner's statement] to:

(1) the [DADS] case worker [manager ] for the PHC Program [services]; and

(2) the [DADS] regional nurse for the CAS Program.

(c) [(d)] Reinstatement of services after termination. If HHSC [DADS] notifies a [the] provider that services are terminated, all pre-initiation activities, including medical need determination, must be completed before services are reinstated.

(d) [(e)] Mental illness and intellectual disability [mental retardation]. An individual [Persons] diagnosed with a mental illness, an intellectual disability [mental retardation], or both, is [are] not considered to have established medical need based solely on such diagnoses, but may establish medical need through a related diagnosis that results in a functional limitation.

§47.49.Interdisciplinary Team.

(a) Interdisciplinary Team (IDT). The IDT is a designated group that includes the following people who meet when the provider identifies the need to discuss service delivery issues or barriers to service delivery:

(1) the individual or the individual's representative, or both;

(2) a provider representative; and

(3) an HHSC [a DADS] representative, who may be:

(A) the case worker or designee [manager (or designee)];

(B) the case worker's [manager's] supervisor [(] or designee [)];

(C) the contract manager [(] or designee [)]; or

(D) the regional nurse [(] or designee [)].

(b) Convening an IDT meeting.

(1) The provider must convene an IDT meeting:

(A) within three working days of the date the provider suspends services to an individual under §47.71(a)(7) or (b) of this chapter (relating to Suspensions); or

(B) within seven working days of the date the provider identifies an issue that prevents the provider from carrying out a requirement of the PHC Program, CAS Program, or FC Program.

(2) A provider must make and document a good faith effort to include all members of the IDT described in subsection (a) of this section.

(3) If the provider is unable to convene an IDT meeting with all the members described in subsection (a) of this section, the provider must convene the IDT meeting with the available members and send the documentation of the IDT meeting described in subsection (e) of this section to the Regional Director for the HHSC [DADS] region in which the individual resides. The documentation must be sent within five working days after the date of the IDT meeting.

(c) IDT meeting.

(1) The IDT meeting may be conducted by telephone or in person.

(2) The IDT must:

(A) evaluate the issue;

(B) identify any solutions to resolve the issue; and

(C) make recommendations to the provider.

(d) IDT meeting outcome. The provider must do one of the following within two working days after the IDT meeting:

(1) implement the recommendations of the IDT; or

(2) discharge the individual from the provider and refer the individual to the case worker [manager] for referral to another provider.

(e) Documentation of the IDT meeting. The provider must document the IDT meeting in the individual's file, including the:

(1) specific reasons for calling the IDT meeting;

(2) participants in the IDT meeting;

(3) recommendations of the IDT;

(4) action as a result of the IDT recommendations; and

(5) reasons for the provider's actions.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900445

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-5645


CHAPTER 47. CONTRACTING TO PROVIDE PRIMARY HOME CARE

SUBCHAPTER D. SERVICE DELIVERY PLAN DEVELOPMENT

40 TAC §47.43

STATUTORY AUTHORITY

The repeal is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The repeal affects Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §32.021.

§47.43.Referrals.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900446

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-5645


CHAPTER 47. PRIMARY HOME CARE, COMMUNITY ATTENDANT SERVICES, AND FAMILY CARE PROGRAMS

SUBCHAPTER E. SERVICE REQUIREMENTS

40 TAC §§47.57, 47.61, 47.63, 47.67, 47.69, 47.71, 47.73, 47.74

STATUTORY AUTHORITY

The amendments and new section are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendments and new section affect Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §32.021.

§47.57.Service Delivery Options.

An individual receiving services in the PHC Program, CAS Program, or FC Program may choose [services has a choice of] one of the following three service delivery options.

(1) Agency option. In the agency option:

(A) the provider is responsible for personnel decisions, such as selecting, supervising, and dismissing the attendant who provides services to the individual, with input from the individual;

(B) the provider is responsible for:

(i) recruitment of attendants and substitute attendants, [(] a responsibility the individual may share [)];

(ii) payroll for attendants and substitute attendants; and

(iii) filing tax-related reports of attendants and substitute attendants;

(C) the provider is the employer of record of attendants and substitute attendants; and

(D) the provider is responsible for providing substitute attendants.

(2) Consumer directed services (CDS) option. In the CDS option, as described in Chapter 41 of this title (relating to Consumer Directed Services Option):

(A) the individual recruits, hires, manages, and fires attendants;

(B) the individual is the employer of record of his or her attendant and substitute attendant;

(C) the individual is responsible for providing substitute attendants; and

(D) the FMSA [consumer directed services agency (CDSA)] is responsible for financial management services, including:

(i) registering as the individual's employer-agent with the Internal Revenue Service and the Texas Workforce Commission;

(ii) managing payroll for attendants and substitute attendants, including filing tax-related reports;

(iii) tracking expenditures; and

(iv) submitting quarterly expenditure reports to the employer and case worker [manager]; and

(E) the FMSA [CDSA] is not required to be licensed under Chapter 97 of this title (relating to Licensing Standards for Home and Community Support Services Agencies) when performing the functions described in subparagraph (D) of this paragraph.

(3) Service responsibility option (SRO). In the SRO, as described in Chapter 43 of this title (relating to Service Responsibility Option):

(A) the individual selects, manages, supervises, and dismisses attendants;

(B) the provider is the employer of record for the attendant and substitute attendant;

(C) the provider is responsible for:

(i) providing substitute attendants if necessary;

(ii) managing payroll for attendants and substitute attendants; and

(iii) filing tax-related reports of attendants and substitute attendants;

(D) the individual and supervisor must negotiate the frequency of supervisory visits;

(E) the individual is responsible for the new attendant orientation; and

(F) the provider is required to be licensed under Chapter 97 of this title if performing the functions described in subparagraph (C) of this paragraph.

§47.61.Service Initiation.

(a) Service initiation. A [The] provider must initiate services:

(1) in the PHC Program and CAS Program:

(A) [(1)] for routine referrals described in §47.43 of this chapter (relating to Referrals and Authorizations), within seven days after the provider receives the authorization on HHSC's Authorization for Community Care Services form; and [:]

(B) for expedited referrals described in §47.43 of this chapter, on the date negotiated between the case worker and provider; and

(2) [(A)] in the FC Program [for FC services], within 14 days after the following, whichever is later:

(A) [(i)] the authorization [referral] date on HHSC's Authorization for Community Care Services [DADS' authorization for community care services] form; or

(B) [(ii)] the date the provider receives the authorization on HHSC's Authorization for Community Care Services [DADS' authorization for community care services ] form, unless the provider fails to stamp the receipt date on the form, in which case the authorization [referral] date is used to determine timeliness.[; or] <> [(B) for PHC and CAS, within seven days after provider receipt of DADS' authorization for community care services form; and]

[(2) for expedited referrals described in §47.43 of this chapter, on the date negotiated between the case manager and provider.]

(b) Notification of service initiation. Within 14 days after initiating services, the provider must send notice of service initiation to the case worker [manager].

(c) Delay in service initiation. A provider may delay service initiation only for reasons not directly caused by the provider, or reasons beyond its control, such as natural or other disasters. The provider must continue efforts to initiate services and set a date, if possible, for service initiation. The provider must document any failure to initiate services by the applicable due date in subsection (a) of this section, including:

(1) the reason for the delay [, which must be beyond the provider's control];

(2) either the date the provider anticipates it will initiate services, or specific reasons why the provider cannot anticipate a service initiation date; and

(3) a description of the provider's ongoing efforts to initiate services.

(d) Documentation of service initiation. The provider must maintain documentation of service initiation in the individual's file.

§47.63.Service Delivery.

(a) Service interruptions. A service interruption occurs when, on a particular day or time when services are scheduled:

(1) the individual requests that:

(A) no hours of service be provided; [or]

(B) fewer hours of service than reflected in the service schedule be provided; or

(C) a specific attendant not provide services to the individual;

(2) the individual is not at home [when services are scheduled];

(3) services are suspended as described in §47.71 of this subchapter [chapter] (relating to Suspensions); or

(4) services are not delivered for other reasons beyond the control of the provider [agency], such as acts of nature and other disasters.

(b) Delivery of services.

(1) A [The] provider [agency] must ensure:

(A) services are delivered according to the service delivery plan described in §47.45 of this chapter (relating to Pre-Initiation Activities);

(B) all authorized and scheduled services are provided to an individual, except in the case of a service interruption as described [, as defined] in subsection (a) of this section; and

(C) an individual does not receive, during a calendar month, more than five times the weekly authorized hours on HHSC's [the Department of Aging and Disability Services (DADS)] Authorization for Community Care Services form.

(2) A [The] provider [agency] must not exceed the weekly authorized hours except in the case of a temporary increase if requested by an individual based on the individual's need due to an unusual circumstance.[:]

[(A) due to unusual circumstances and the individual's need; and]

[(B) requested by the individual.]

[(C) This paragraph does not apply to the circumstances described in subsection (d) of this section.]

(c) Service interruption documentation.

(1) In the case of an individual whose services are considered priority, the provider [agency] must document all service interruptions by the 30th day after the date [beginning of] the individual's services are scheduled but not delivered [service interruption].

(2) In the case of an individual whose services are considered non-priority, the provider [agency] must document all service interruptions that exceed 14 consecutive days by the 30th day after the day service interruption exceeds 14 consecutive days.

(A) For a fixed service schedule, the service interruption begins on the first day services are scheduled but not delivered.

(B) For a variable service schedule, the service interruption begins the Sunday following the week the individual did not receive all the weekly hours on a service plan approved by the individual.

(3) The reason documented must be a reason listed in subsection (a) of this section.

(4) If the provider [agency] learns of a service interruption after the deadlines listed in paragraphs (1) and (2) of this subsection, the provider [agency] must document the following as soon as the provider [agency] learns of the service interruption:

(A) the reason for the service interruption [. The reason documented must be a reason listed in subsection (a) of this section];

(B) the reason for the delay in documenting the service interruption; and

(C) the date the provider [agency] learned of the service interruption.

(d) Service delivery outside the individual's home but within a provider's [provider agency's] contracted service delivery area.

(1) A [The] provider [agency] may develop a service plan that includes services regularly delivered at a location other than the individual's home.

(2) A [The] service plan must not exceed the weekly hours authorized on HHSC's [DADS] Authorization for Community Care Services form.

(3) A [The] provider [agency] may deliver services outside the individual's home when the service plan does not include the regular delivery of such services.

(4) A [The] provider [agency]:

(A) may deliver services outside the individual's home only if the individual requests such services; [.]

(B) is not required to pay for expenses incurred as a result of an attendant delivering services outside the individual's home; [.]

(C) must make a reasonable effort to deliver services at a location other than an individual's home when requested by the individual;

(D) must maintain written justification if the individual's request was not granted; and

(E) must document in the individual's record:

(i) each instance when the individual requested services at a location other than the home;

(ii) whether the individual's request was granted;

(iii) what services were provided; and

(iv) where the services were delivered.

(e) Service delivery outside a provider's [provider agency's] contracted service delivery area.

(1) A [The] provider [agency] may develop a service plan that includes, at the request of the individual, services provided while the individual is temporarily staying at a location outside the provider's [provider agency's] contracted service delivery area but within the state of Texas.

(2) A [The] service plan must not exceed the weekly hours authorized on HHSC's [DADS] Authorization for Community Care Services form.

(3) A [The] provider [agency] may accept or decline the request of an individual for the provision of services while the individual is temporarily staying at a location outside the contracted service delivery area but within the state of Texas.

(A) If a [the] provider [agency ] accepts an [the] individual's request, the provider [agency]:

(i) may provide services to the individual during a period of no more than 60 consecutive days;

(ii) must, within three days after the provider [agency ] begins providing services to the individual outside the provider's [provider agency's] contracted service delivery area, notify the individual's case worker [manager] in writing of the following:

(I) that the individual is receiving services outside the provider's [provider agency's] contracted service delivery area;

(II) the location where the individual is receiving services;

(III) the estimated length of time the individual is expected to be outside the contracted service delivery area; and

(IV) contact information for the individual;

(iii) must notify the individual's case worker [manager] in writing that the individual has returned to the provider's [provider agency's] contracted service delivery area within three working days after becoming aware of the individual's return; and

(iv) is not required to pay for expenses incurred by an attendant delivering services outside the contracted service delivery area.

(B) If a [the] provider [agency ] declines an [the] individual's request, the provider [agency] must:

(i) inform the individual orally or in writing:

(I) of the reasons for declining the request; and

(II) that the individual may request a meeting with the case worker [manager] and the provider [agency ] to discuss the reasons for declining the request; and

(ii) inform the individual's case worker [manager] in writing, within three days after declining the request, that the request was declined and the reasons for declining the request.

(4) If an individual receives services outside a provider's [the provider agency's] contracted service delivery area during a period of 60 consecutive days, the individual must return to the contracted service delivery area and receive services in that service delivery area before the provider [agency] may agree to another request from the individual for the provision of services outside the provider's [provider agency's] contracted service delivery area.

(5) If an [the] individual intends to remain outside a provider's [the provider agency's] contracted service delivery area for a period of more than 60 consecutive days, HHSC [DADS] transfers the individual to a provider [agency] selected by the individual that has a contracted service delivery area that includes the area in which the individual is receiving services. HHSC [DADS] coordinates the transfer in accordance with §47.69 of this subchapter [chapter] (relating to Transfers).

(f) Service delivery documentation.

(1) A [The] provider [agency] must document the delivery of services electronically or on a paper timesheet, to include:

(A) the provider [agency] name;

(B) the provider [agency] vendor number;

(C) the attendant's name;

(D) the individual's name;

(E) the individual's HHSC [DADS] number;

(F) the specific service delivery period, including month, day, and year, as applicable;

(G) the tasks assigned;

(H) the units of service delivered;

(I) the dates services were delivered; and

(J) certification that the attendant delivered the documented tasks.

(2) For electronic service delivery documentation systems, each attendant must enter a unique identifier to certify the services delivered.

(3) For paper service delivery documentation systems, a timesheet must have a specific service delivery period not exceeding one calendar month.

(A) Except as provided in subparagraph (B) of this paragraph, each attendant [person] delivering services must sign the timesheet or make a mark representing the attendant's name to certify the services delivered and that the timesheet is correct.

(B) An attendant who is unable to sign or mark the timesheet may designate another person to sign the timesheet. A [The] provider [agency] must maintain written documentation of the:

(i) reason an [the] attendant is unable to sign or mark the timesheet; and

(ii) identity of the person designated [authorized ] to sign the timesheet on behalf of the attendant.

(g) Documentation of service delivery. A [The] provider [agency] must [:]

[(1)] maintain documentation of service delivery in an [the] individual's record. [; and]

[(2) be able to identify each attendant who delivers services to an individual.]

§47.67.Service Delivery Plan Changes.

(a) Increase in hours or terminations.

(1) A provider must submit written notification to the case worker [manager] within seven days after learning of any change that may:

(A) require an increase in hours in the individual's service delivery plan; or

(B) result in the termination of services due to the individual receiving no ADLs [personal care tasks], except for the FC Program [services].

(2) The notification must include the:

(A) date the provider learned of the need for the change;

(B) reason for the change;

(C) type of change, including [(including] the number of hours of service [service)]; and

(D) signature and date of the provider representative.

(b) Decrease in hours. The provider must develop a new service delivery plan, as described in §47.45(a)(2) of this chapter (relating to Pre-Initiation Activities), within 21 days of the provider identifying the need for an ongoing decrease in hours from the service delivery plan currently approved by the individual.

(c) Immediate increase in hours of service.

(1) The provider must notify the case worker [manager], or designee, of the reason an individual requires an immediate increase in hours of service, and must obtain approval from HHSC [DADS] of both the number of additional hours of service to be provided the individual and the effective date of the change.

(2) The provider must implement the immediate increase in hours of service on the negotiated effective date of the change.

(3) The provider must document the immediate increase in hours of service. Documentation must include:

(A) the date the provider received approval for the change;

(B) the name of the HHSC [DADS] staff who approved the change;

(C) the effective date of the change; and

(D) the number of hours of service authorized.

(4) The provider must maintain documentation regarding an immediate increase in hours of service [of service delivery plan changes:]

[(A)] in the individual's file.and]

[(B) according to the terms of the contract.]

(d) Implementation of service delivery plan changes described in subsections (a) - (c) of this section. The provider must implement the service delivery plan change on the following date, whichever is later:

(1) the authorization begin date on HHSC's Authorization for Community Care Services [DADS' authorization for community care services] form; or

(2) five days after the date the provider receives HHSC's Authorization for Community Care Services [DADS' authorization for community care services] form, unless the provider fails to stamp the receipt date on the form, in which case the authorization begin date on the form will be used to determine timeliness.

(e) Delay in implementation of service delivery plan changes described in subsections (a) - (c) of this section. If a provider does not implement a service delivery plan change on the effective date of the change, the provider must set a new implementation date. The provider must document by the next working day any failure to implement a service delivery plan change on the effective date of the change. The documentation must include:

(1) the reason for the failure to timely implement the service delivery plan change; and

(2) the new implementation date.

(f) Temporary service delivery plan changes.

(1) A provider may temporarily change an individual's service delivery plan if:

(A) the individual requests and requires temporary assistance with allowable tasks not identified on the service delivery plan due to a change in circumstances or available supports; and

(B) the change in tasks does not increase the total approved hours of service or continue for more than 60 days.

(2) If a temporary change in tasks on the service delivery plan will continue for more than 60 days or result in more hours of service provided than have been approved, a provider must:

(A) request and obtain a new HHSC Authorization for Community Care Services form; and

(B) provide services according to HHSC's Authorization for Community Care Services form until the provider receives a new form from the case worker.

(3) A provider must maintain the following documentation in an individual's file regarding a temporary change in the service delivery plan:

(A) the specific change in the service delivery plan;

(B) the duration of the temporary change; and

(C) the reason for the temporary change.

§47.69.Transfers.

(a) Negotiation of an individual's transfer from one provider to another. The providers involved in an individual's transfer must coordinate with the case worker [manager] to negotiate the transfer date.

(b) Initiation of services. The receiving provider must initiate services on the negotiated date. The negotiated date is the begin date on HHSC's Authorization for Community Care Services [DADS' authorization for community care services] form.

(c) Evaluation and service delivery plan. On or before the begin date, the receiving provider must:

(1) conduct an evaluation, as described in §47.45 of this chapter (relating to Pre-Initiation Activities); and

(2) develop a service delivery plan, as described in §47.45 of this chapter.

§47.71.Suspensions.

(a) Required suspensions. A provider [agency] must suspend services if:

(1) an individual temporarily or permanently leaves the provider’s [provider agency's] contracted service delivery area during a time when the individual would routinely receive services and the individual does not request the provision of services outside the provider's [provider agency's] contracted service delivery area;

(2) the provider declines the request of the individual for the provision of services outside of the provider's [provider agency's] contracted service delivery area and the individual leaves the service delivery area;

(3) the individual moves to a location where services cannot be provided under the PHC Program, CAS Program, or FC Program;

(4) the individual dies;

(5) the individual is admitted to an institution, which is a:

(A) hospital;

(B) nursing facility;

(C) state supported living center;

(D) state hospital;

(E) intermediate care facility serving individuals with an intellectual disability or related conditions; or

(F) correctional facility.

(6) the individual requests that services end;

(7) for individuals receiving services in the PHC Program or CAS Program, HHSC [the Health and Human Services Commission] denies the individual's Medicaid eligibility [(not applicable to FC services)]; or

(8) the individual or someone in the individual's home exhibits reckless behavior, which may result in imminent danger to the health and safety of the individual, the attendant, or another person, in which case the provider must make an immediate referral to:

(A) DFPS [the Texas Department of Family and Protective Services] or other appropriate protective services agency;

(B) local law enforcement, if appropriate; and

(C) the individual's case worker [manager].

(b) Optional suspensions. The provider [agency] may suspend services if:

(1) the individual or someone in the individual's home engages in discrimination against a provider or HHSC [DADS ] employee in violation of applicable law; or

(2) the individual refuses services for more than 30 consecutive days.

(c) Notification of service suspension. A [The] provider [agency] must notify the case worker [manager] of any suspension by the first working day after the provider [agency] suspends services. The notice must include:

(1) the date of service suspension;

(2) the reason [reason(s)] for the suspension;

(3) the duration of the suspension, if known; and

(4) for a suspension under subsection (a)(8) or (b) of this section, a written explanation of the circumstances surrounding the suspension.

(d) Interdisciplinary Team (IDT) meeting. A [The] provider [agency] must convene an IDT meeting, as described in §47.49 of this chapter (relating to Interdisciplinary Team), if services are suspended under subsection (a)(8) or (b) of this section.

(e) Resuming services after suspension. This subsection does not apply to subsection (a)(8) or (b)(1) of this section.

(1) A provider [agency] must resume services after suspension on the earliest of the following:

(A) after [upon] the individual's return home, or the date the provider [agency] becomes aware of the individual's return home, if applicable;

(B) on the date specified in writing by the case worker [manager];

(C) as a result of a recommendation by the IDT; or

(D) upon the provider's [provider agency's ] receipt of notification from the case worker [manager ] that the provider [agency] must resume services pending the outcome of an appeal.

(2) A [The] provider [agency] must notify the case worker [manager] of the date services resume within seven days after that date.

§47.73.Annual Reauthorization for the CAS Program [Community Attendant Services (CAS)].

(a) Reauthorization request.

(1) Upon receipt of the annual HHSC Authorization for Community Care Services [DADS authorization for community care services] form, a provider must request annual reauthorization for the CAS Program [all CAS].

(2) The provider must send the following to the regional nurse to obtain annual reauthorization:

(A) HHSC's Authorization for Community Care Services [DADS' authorization for community care services] form received from the case worker [manager]; and

(B) a signed statement indicating whether the supervisor agrees or disagrees with the tasks and hours indicated on HHSC's Authorization for Community Care Services [DADS' authorization for community care services] form, and if the supervisor disagrees, the statement must provide the specific reasons for disagreeing with the hours and tasks on this form.

(b) Reauthorization request due date. A [The ] provider must submit the information described in subsection (a)(2) of this section to the regional nurse within 14 days after one of the following dates, whichever is later:

(1) the referral date on HHSC's Authorization for Community Care Services [DADS' authorization for community care services] form; or

(2) the date the provider receives HHSC's Authorization for Community Care Services [DADS' authorization for community care services] form, unless the provider fails to stamp the receipt date on the form, in which case the referral date will be used to determine timeliness.

(c) Authorization determination. HHSC [DADS ] makes the authorization determination and notifies the provider before the annual reauthorization is due.

(d) Documentation of annual reauthorization. A [The] provider must maintain documentation of the written request for reauthorization for the CAS Program [CAS] in the individual's file.

§47.74.Prohibition of Restraint and Seclusion.

A provider must not use restraint or seclusion.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900447

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-5645


CHAPTER 47. CONTRACTING TO PROVIDE PRIMARY HOME CARE

SUBCHAPTER E. SERVICE REQUIREMENTS

40 TAC §47.59, §47.72

STATUTORY AUTHORITY

The repeals are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The repeals affect Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §32.021.

§47.59.Support Consultation.

§47.72.Compliance with Program Requirements.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900448

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-5645


CHAPTER 47. PRIMARY HOME CARE, COMMUNITY ATTENDANT SERVICES, AND FAMILY CARE PROGRAMS

SUBCHAPTER F. CLAIMS PAYMENT AND DOCUMENTATION

40 TAC §§47.81, 47.83, 47.85, 47.89

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendments affect Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §32.021.

§47.81.Monitoring Medicaid Eligibility.

(a) Applicability. This section does not apply to individuals who are receiving FC Program services.

(b) Verification of Medicaid eligibility. A provider must verify each month that an individual remains Medicaid eligible. A [The] provider may verify the individual's current Medicaid eligibility by:

(1) viewing the individual's HHSC [Health and Human Services Commission] Medicaid Identification form; or

(2) using the current systems available to verify the individual's Medicaid eligibility [individual registration].

(c) Reimbursement. HHSC does not pay a [The ] provider [is not entitled to payment from DADS] for services delivered to an [if the provider fails to verify the] individual who is not eligible for [has current] Medicaid at the time the provider delivered the services [eligibility].

§47.83.Monitoring Reviews.

[(a)] HHSC [Monitoring reviews. DADS] conducts monitoring reviews of a provider [in the PHC Program] as described in Chapter 49 of this title (relating to Contracting for Community [Care] Services) and in this chapter.

[(b) Fiscal monitoring. Fiscal monitoring in the PHC Program includes monitoring financial errors, which are applied to the entire unit of service. Financial errors include the following instances:]

[(1) DADS reimburses a provider for services, but the service delivery documentation is missing for the period for which services are reimbursed. DADS applies the error to the total number of units reimbursed for the pay period.]

[(2) DADS reimburses the provider for services, but the attendant fails to complete the units of service delivered portion of the service delivery documentation. DADS applies the error to the total number of units reimbursed for the pay period.]

[(3) DADS reimburses the provider for hours that exceed the total number of hours recorded on the service delivery documentation. DADS applies the error to the total number of units reimbursed in excess of the units recorded on the service delivery documentation. The lowest of the three totals in subparagraphs (A) - (C) of this paragraph is used to calculate the total number of hours recorded on the service delivery documentation:]

[(A) the sum of time in and time out;]

[(B) the sum of daily totals of time; or]

[(C) the total time recorded.]

[(4) DADS reimburses the provider for units of service for days on which the individual did not receive services. DADS applies the error to the total number of units reimbursed for the day on which the individual did not receive services.]

[(5) DADS reimburses the provider for units of service for days on which the individual was Medicaid ineligible. DADS applies the error to the total number of units reimbursed for the days on which the individual was Medicaid ineligible. This paragraph does not apply to FC services.]

§47.85.Retroactive Payment Procedures.

(a) Applicability.

(1) This section does not apply to the FC Program [family care services].

(2) A provider [agency] that chooses to request retroactive payment must comply with the requirements of this section.

(b) Definition of retroactive payment. A retroactive payment is payment by HHSC [the Texas Department of Human Services (DHS)] to a provider [agency] for services under the PHC Program or CAS Program [Primary Home Care Program] that are provided before the date the case worker [manager] determines the individual's [person's] eligibility for the services.

(c) Reimbursement.

(1) The provider [agency] may be reimbursed for services provided before the date HHSC receives a completed, signed, and dated copy of HHSC's [DHS's] Application for Assistance--Aged and Disabled form [is received]:

(A) for up to three months for an individual [a person] who does not have Medicaid eligibility at the time of the request for retroactive payment; and

(B) for an indefinite period for an individual [a person] who is Medicaid eligible at the time of the request for retroactive payment.

(2) HHSC [DHS] only reimburses the provider [agency] for the:

(A) services described in §47.41 of this chapter (relating to Allowable Tasks);

(B) number of hours of services allowed [to be provided] the individual [person, calculated] as described in §48.2918(c) of this title (relating to [Eligibility for] Primary Home Care or Community Attendant Services); and

(C) allowable costs of the PHC [Primary Home Care] Program or CAS Program, as described in 1 TAC, Chapter 355, Subchapter A, (relating to Cost Determination Process [Medicaid Reimbursement Rates]).

(3) HHSC does [DHS will] not reimburse the provider [agency] for the retroactive period if:

(A) the provider [agency] fails to submit the required documentation within the required time frames; or

(B) the individual [person] provided services does not meet the requirements described in subsection (d) of this section.

(d) Requirements before requesting retroactive payment. The provider [agency] may not request retroactive payment unless:

(1) the individual [person] appears to be Medicaid eligible as defined in §48.1201 of this title (relating to Definition of Program Terms);

(2) the provider [agency] obtains a Practitioner's Statement of Medical Need form [practitioner's written statement] as described in §47.47 of this chapter (relating to Determination of Medical Need [Determination]);

(3) the individual [person] requires assistance with at least one ADL [personal care task] as described in §47.41 of this chapter; and

(4) the provider [agency] has verified and documented that the individual [person] is not already receiving services under the PHC Program or CAS Program [Primary Home Care Program] from another provider [agency].

(e) Pre-initiation activities. The provider [agency] must complete the pre-initiation activities described in §47.45(a) of this chapter (relating to Pre-Initiation Activities).

(f) Intake referral. On the day that the provider [agency ] completes the pre-initiation activities, the provider [agency ] must contact HHSC [the local DHS office by telephone] and make an intake referral by providing HHSC [DHS] information on the individual [person] to start the eligibility process.

(g) Service initiation. HHSC does not pay a provider for services provided to an individual [The provider agency must not begin to provide services to the person] before the date the provider [agency] completes the pre-initiation activities and processes the intake referral as described in subsections (e) and (f) of this section.

(h) Requesting retroactive payment.

(1) A provider's [provider agency's] written request for retroactive payment must include:

(A) a copy of the service delivery plan [required by subsection (e) of this section];

(B) a copy of HHSC's [DHS's] Practitioner's Statement of Medical Need form; and

(C) the retroactive payment information, including the:

(i) name of the provider [agency];

(ii) contact information for the individual [person];

(iii) date services were started;

(iv) tasks provided to the individual, including [person. This includes] both tasks allowed and not allowed by the PHC [Primary Home Care] Program or CAS Program;

(v) weekly hours of service provided to the individual, including [person. This includes] hours allotted to tasks allowed and not allowed by the PHC [Primary Home Care] Program or CAS Program; and

(vi) cost per hour of service charged to the individual [person].

(2) The provider [agency] must submit the written request for retroactive payment:

(A) to the case worker [manager] or, if no case worker [manager] has been assigned, to HHSC [DHS] intake staff; and

(B) within seven days after the date the provider [agency ] processes the intake referral.

(i) Charges to individuals [persons] who receive services.

(1) The provider [agency] may charge an individual [a person] for services for which the provider [agency] intends to request retroactive payment, unless the individual [person] is Medicaid eligible.

(2) The provider [agency] must reimburse the entire amount of all payments made by the individual [person] to the provider [agency] for eligible services, even if those payments exceed the amount HHSC [DHS] will reimburse for the services, if HHSC [DHS] determines that the individual [person] is eligible for the PHC [Primary Home Care] Program or CAS Program.

(j) Documentation of retroactive payment requests. The provider [agency] must maintain documentation of retroactive payment requests in the individual's [person's] file.

§47.89.Reimbursement.

(a) Billing requirements. A provider must not bill HHSC [DADS] for:

(1) more hours than an individual's weekly authorization, except when services are delivered as described in §47.63(b)(2) of this chapter (relating to Service Delivery);

(2) services delivered in a licensed facility, if the facility is required by the license to provide those services;

(3) services provided outside the contracted service delivery area except if provided in compliance with §47.63(e) of this chapter; and

(4) services or tasks that duplicate any services or tasks provided to the individual by another source.

(b) Hourly rate. A provider must agree to accept the hourly rate authorized by HHSC [DADS].

(c) Documentation. A provider must maintain the documentation described in this chapter to be eligible for reimbursement.

(d) Rounding. A provider must bill HHSC [DADS ] for services in quarter-hour increments, rounding up to the next quarter-hour if the actual time worked is eight minutes or more, and rounding down to the previous quarter hour if the actual time worked is less than eight [seven] minutes [or less].

(e) Allowable tasks. A provider must bill HHSC [DADS] only for the tasks described in §47.41 of this chapter (relating to Allowable Tasks).

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900449

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-5645


SUBCHAPTER G. UTILIZATION REVIEW

40 TAC §47.91

STATUTORY AUTHORITY

The amendment is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendment affects Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §32.021.

§47.91.Utilization Review.

(a) HHSC [DADS] conducts utilization review of a service delivery plan and supporting documentation at any time to:

(1) determine the appropriateness of services;

(2) validate a service provision; or

(3) evaluate the quality of services.

(b) A provider, consumer directed services employer, and FMSA [consumer directed services agency] must submit documentation supporting the service delivery plan to HHSC [DADS] as requested by HHSC [DADS].

(c) If HHSC [DADS] determines that one or more of the tasks specified in a service delivery plan do not meet the requirements described in Subchapter D of this chapter (relating to Service [Delivery] Plan Development [Requirements]) or [and] Subchapter E of this chapter (relating to Service Requirements), HHSC [DADS ] denies or reduces the hours or tasks, modifies the service delivery plan effective from the date of the utilization review, and sends written notification of the denial or reduction to the individual and provider.

(d) In addition to the utilization review conducted in accordance with subsection (a) of this section, HHSC [DADS] may conduct utilization reviews of providers and services based on utilization patterns and trends.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900450

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-5645


SUBCHAPTER H. ALLEGATIONS OF ABUSE, NEGLECT, AND EXPLOITATION

40 TAC §47.101, §47.103

STATUTORY AUTHORITY

The new sections are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The new sections affect Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §32.021.

§47.101.Requirements for Providers Related to the Abuse, Neglect, or Exploitation of an Individual.

(a) A provider must:

(1) ensure that an individual and representative are, before or at the time the individual begins receiving services and at least once every 12 months thereafter:

(A) informed of how to report allegations of abuse, neglect, or exploitation to DFPS and are provided with the Abuse Hotline toll-free telephone number, 1-800-252-5400, in writing; and

(B) educated about protecting the individual from abuse, neglect, and exploitation;

(2) ensure that each staff person is:

(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 the occurrence of abuse, neglect, and exploitation;

(B) instructed to report to DFPS immediately, but not later than 24 hours, after having knowledge or suspicion that an individual is being or has been abused, neglected, or exploited by:

(i) calling the DFPS Abuse Hotline toll-free telephone number, 1-800-252-5400; or

(ii) using the DFPS Abuse Hotline website; and

(C) provided with the instructions described in subparagraph (B) of this paragraph in writing; and

(3) conduct the activities described in paragraph (2) of this subsection before a staff person assumes job duties and at least annually.

(b) If a provider, staff person, or controlling person knows or suspects that an individual is being or has been abused, neglected, or exploited, the 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 24 hours, after having knowledge or suspicion by:

(1) calling the DFPS Abuse Hotline toll-free telephone number, 1-800-252-5400; or

(2) using the DFPS Abuse Hotline website.

(c) If a report required by subsection (b) of this section alleges abuse, neglect, or exploitation of an individual, or if the provider is notified of an allegation of abuse, neglect, or exploitation, the provider must:

(1) take necessary actions to secure the safety of the individual; and

(2) notify the individual or representative as soon as possible, but no later than 24 hours, after the provider reports or is notified of the allegation:

(A) of the allegation report; and

(B) the actions the 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.

(d) A provider must not retaliate against:

(1) a staff person, 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; or

(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 the individual.

(e) At least annually, a provider must review all reports of abuse, neglect, or exploitation of an individual of which the provider is notified, and all final investigative reports received from HHSC for investigations described in §47.103 of this subchapter (relating to Requirements for Providers Related to the Abuse, Neglect, and Exploitation of an Individual Receiving Services in the PHC Program and CAS Program Through the Agency Option or the Service Responsibility Option) 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.

§47.103.Requirements for Providers Related to the Abuse, Neglect, and Exploitation of an Individual Receiving Services in the PHC Program and CAS Program Through the Agency Option or the Service Responsibility Option.

(a) This section applies only when an individual is receiving services in the PHC Program or CAS Program through the agency option or the service responsibility option.

(b) If a report required by §47.101(b) of this subchapter (relating to Requirements for Providers Related to the Abuse, Neglect, or Exploitation of an Individual) alleges abuse, neglect, or exploitation of an individual by a staff person or controlling person or if a provider is notified by HHSC of an allegation of abuse, neglect, or exploitation of an individual by a staff person or controlling person, the provider must:

(1) as necessary:

(A) obtain immediate 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 receiving services from the provider until HHSC completes the investigation;

(3) preserve and protect any evidence related to the allegation; and

(4) as soon as possible, but no later than 24 hours, after the provider reports or is notified of an allegation, notify the individual, the representative, and the case worker of:

(A) the allegation report; and

(B) the actions the 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.

(c) During an HHSC investigation of an alleged perpetrator who is a staff person or controlling person, a provider must:

(1) cooperate with the investigation as requested by HHSC, including providing documentation and participating in interviews;

(2) provide HHSC access to:

(A) sites owned, operated, or controlled by the provider;

(B) individuals, staff persons, and controlling persons; and

(C) records pertinent to the investigation of the allegation; and

(3) ensure that a staff person or controlling person complies with paragraphs (1) and (2) of this subsection.

(d) After a provider receives a final investigative report from HHSC for an investigation described in subsection (c) of this section, the 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 appropriate action within the provider's authority to prevent the reoccurrence of abuse, neglect, or exploitation, including, when warranted, disciplinary action against the staff person 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 provider's authority, as necessary; and

(3) immediately, but not later than five calendar days after the date the provider receives the HHSC final investigative report, notify the individual, the representative, and the case worker of:

(A) the investigation finding; and

(B) the action taken by the provider in response to the HHSC investigation as required by paragraphs (1) and (2) of this subsection.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900451

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-5645


CHAPTER 49. CONTRACTING FOR COMMUNITY SERVICES

As required by Texas Government Code, §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all of its functions were transferred to the Health and Human Services Commission (HHSC) in accordance with Texas Government Code, §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1 govern functions previously performed by DADS that have transferred to HHSC.

Texas Government Code, §531.0055, requires the executive commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, including rules in Title 40, Part 1. Therefore, the executive commissioner of HHSC proposes amendments to §49.101, §49.102, §49.201, §49.205, §49.309, and §49.701; new §49.301; and the repeal of §49.301; in Title 40, Part 1, Chapter 49, Contracting for Community Services.

BACKGROUND AND PURPOSE

Chapter 49, Contracting for Community Services, governs contracting with HHSC to provide community-based services. The proposed amendments provide that §49.310, which relates to abuse, neglect, and exploitation allegations, does not apply to a contractor for any of the following services or programs: a direct services agency in the Community Living Assistance and Support Services (CLASS) Program; a case management agency in the CLASS Program; the Deaf-Blind with Multiple Disabilities (DBMD) Program; the Home and Community-based Services (HCS) Program; the Texas Home Living (TxHmL) Program; the Primary Home Care (PHC) Program; the Community Attendant Services (CAS) Program; the Family Care (FC) Program; the Consumer Managed Personal Attendant Services (CMPAS) Program; a financial management services agency (FMSA) for CLASS, DBMD, HCS, or TxHmL; or an FMSA for PHC, CAS, and FC.

HHSC is proposing amendments to Title 40, Chapters 9, 41, 42, 44, 45, and 47, in this issue of the Texas Register to add the requirements in §49.310 related to abuse, neglect, and exploitation to the specific rules that govern those programs and services. Those proposed rules will make the application of §49.310 unnecessary for those programs and services.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §49.101, Application, provides that §49.310, which relates to abuse, neglect, and exploitation allegations, does not apply to a contractor for any of the programs and services listed in subsections (b) and (e) of the section because HHSC has proposed rules related to abuse, neglect, and exploitation in the specific chapters governing those programs and services. The proposed amendment changes "home delivered meals" to "Home-Delivered Meals (HDM) Program" to reflect the term used in Title 40, Chapter 55, governing this program. The proposed amendment changes "primary home care (PHC)" to "Primary Home Care (PHC) Program," "community attendant services (CAS)" to "Community Attendant Services (CAS) Program; and "family care (FC)" to "Family Care (FC) Program," to reflect the terms used for those programs in amendments related to abuse, neglect, and exploitation allegations that have been proposed in Title 40, Chapters 41 and 47. The proposed amendment changes "consumer managed personal attendant services (CMPAS)" to "Consumer Managed Personal Attendant Services (CMPAS) Program" to reflect the term used in Title 40, Chapter 44, governing this program. The proposed amendment makes non-substantive editorial changes.

The proposed amendment to §49.102, Definitions, replaces "CAS," "FC," and "PHC" with "CAS Program," "FC Program," and "PHC Program" to reflect the terms used for those programs in amendments that have been proposed in Title 40, Chapters 41 and 47, which relate to abuse, neglect, and exploitation allegations. The proposed amendment replaces "CMPAS" and "HDM" with "CMPAS Program" and "HDM Program" to reflect the terms used in the specific chapters governing those programs. The proposed amendment amends the definition of "personal attendant" to reflect that a personal attendant provides "personal attendant services" in the PHC Program, FC Program, and CAS Program. The proposed amendment amends the definition of "CFC PAS/HAB" to make a minor editorial change.

The proposed amendment to §49.201, Contractors Not Subject to Certain Portions of Subchapter B, changes the term for the CMPAS Program for consistency with the proposed amendment to §49.102. The proposed amendment also deletes relocation services as services governed by Chapter 49 because those services have been provided through the STAR+PLUS program since September 1, 2017 and have been deleted in other parts of Chapter 49.

The proposed amendment to §49.205, License, Certification, Accreditation, and Other Requirements, changes "DBMD" to "the DBMD Program" for consistency with the defined term in §49.102 and changes the terms used for the PHC Program, the CAS Program, and the FC Program, consistent with the proposed amendment to §49.102.

Proposed new §49.301, Contractors Not Subject to Certain Portions of Subchapter C, provides that §49.310, which relates to abuse, neglect, and exploitation allegations, does not apply to a contractor for any of the programs and services listed in the section because rules related to abuse, neglect, and exploitation have been proposed in the specific chapters governing those programs and services.

The proposed repeal of §49.301, Purpose, deletes an unnecessary statement of the purpose of Subchapter C.

The proposed amendment of §49.309, Complaint Process, changes the terms used for the PHC Program, the CAS Program, the CMPAS Program, the FC Program, and the HDM Program consistent with the proposed amendment to §49.102.

The proposed amendment of §49.701, Contractors Not Subject to Subchapter G, changes the term used for the CMPAS Program consistent with the proposed amendment to §49.102.

FISCAL NOTE

Ms. Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that for each year of the first five years that the sections will be in effect, there is no anticipated impact to costs and revenues of state or local governments as a result of enforcing and administering the sections as proposed.

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

(3) implementation of the proposed rules will not require an increase or decrease in future legislative appropriations;

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

(5) the proposed rules will create a new rule;

(6) the proposed rules will not expand an existing rule;

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

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

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

Ms. Greta Rymal, Deputy Executive Commissioner for Financial Services, has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. The rules do not impose any additional costs on small businesses, micro-businesses, or rural communities that are required to comply with the rules.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There are no anticipated economic costs to persons who are required to comply with the sections as proposed.

There is no anticipated negative impact on local employment.

COSTS TO REGULATED PERSONS

Texas Government Code, §2001.0045 does not apply to this rule because the rules do not impose a cost on regulated persons.

PUBLIC BENEFIT

Stephanie Muth, State Medicaid Director, has determined that for each year of the first five years the rules are in effect, the public will benefit from not having duplicate contracting requirements related to abuse, neglect, and exploitation allegations for contractors in these programs and services.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 4900 North Lamar Boulevard, Austin, Texas 78751; or e-mailed to HHSRulesCoordinationOffice@hhsc.state.tx.us.

To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday. Therefore, comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) e-mailed by midnight on the last day of the comment period. When e-mailing comments, please indicate "Comments on Proposed Rule 40R012" in the subject line.

SUBCHAPTER A. APPLICATION AND DEFINITIONS

40 TAC §49.101, §49.102

STATUTORY AUTHORITY

The amendments are authorized by Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendments affect Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code §32.021.

§49.101.Application.

(a) Except as provided in subsections (b) - (e) [(d)] of this section, all of the sections of this chapter apply to an applicant or contractor for one or more of the following programs and services:

(1) Medicaid waiver programs and services under Title XIX, §1915(c) of the Social Security Act as follows:

(A) the Community Living Assistance and Support Services (CLASS) Program:

(i) CLASS-case management agency (CMA);

(ii) CLASS-continued family services (CFS);

(iii) CLASS-direct service agency (DSA); and

(iv) CLASS-support family services (SFS);

(B) the Deaf Blind with Multiple Disabilities (DBMD) Program;

(C) the Home and Community-based [Community Based] Services (HCS) Program;

(D) the Texas Home Living (TxHmL) Program; and

(E) transition assistance services (TAS);

(2) Medicaid state plan programs or services under Title XIX, §1902(a)(10)(A) of the Social Security Act as follows:

(A) hospice;

(B) the Primary Home Care [primary home care] (PHC) Program;

(C) the Community Attendant Services [community attendant services] (CAS) Program; and

(D) day activity and health services (DAHS);

(3) services and programs under Title XX, Subtitle A of the Social Security Act as follows:

(A) adult foster care (AFC);

(B) emergency response services;

(C) the Home-Delivered Meals [home delivered meals] (HDM) Program;

(D) residential care (RC);

(E) DAHS;

(F) the Family Care [family care] (FC) Program;

(G) the Consumer Managed Personal Attendant Services [consumer managed personal attendant services] (CMPAS) Program;

(H) special services to persons with disabilities (SSPD); and

(I) SSPD - 24-hour shared attendant care; and

(4) financial management services under the consumer directed services option authorized under Texas Government Code, §531.051 as follows:

(A) financial management services agency (FMSA)--CLASS;

(B) FMSA-DBMD;

(C) FMSA-HCS;

(D) FMSA-PHC/CAS/FC; and

(E) FMSA-TxHmL.

(b) Section 49.310 of this chapter (relating to Abuse, Neglect, and Exploitation Allegations), Subchapter D of this chapter (relating to Monitoring and Investigation of a Contractor), and Subchapter E, Divisions 2 and 3 of this chapter (relating to Immediate Protection; and Actions) do not apply to a contractor that has a contract for:

(1) the HCS Program; or

(2) the TxHmL Program.

(c) Subchapter D of this chapter and §49.523 of this chapter (relating to Referral Hold) do not apply to a contractor that has a contract for hospice.

(d) Sections 49.202 - 49.205 and §§49.207 - 49.211 of this chapter (relating to Provisional Contract; Provisional Contract Application Process; Additional Provisional Contract Application Requirements; License, Certification, Accreditation, and Other Requirements; Provisional Contract Application Denial; Provisional Contract Application Approval; Standard Contract; Contractor Change of Ownership or Legal Entity; and Religious Organization Applicants) and Subchapter G of this chapter (relating to Application Denial Period) do not apply to a contractor that has a contract for:

(1) the CMPAS Program;

(2) SSPD; or

(3) SSPD - 24-hour shared attendant care.

(e) Section 49.310 of this chapter does not apply to a contractor that has a contract for one or more of the following programs or services:

(1) a CLASS-CMA;

(2) a CLASS-DSA;

(3) the CMPAS Program;

(4) the DBMD Program;

(5) an FMSA-CLASS;

(6) an FMSA-DBMD;

(7) an FMSA-HCS;

(8) an FMSA-PHC/CAS/FC;

(9) an FMSA-TxHmL;

(10) the PHC Program;

(11) the CAS Program; and

(12) the FC Program.

§49.102.Definitions.

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

(1) AA--Adaptive aids.

(2) Abuse--"Abuse" as defined by the statute or rule that governs the investigation of alleged abuse of an individual.

(3) AFC--Adult foster care.

(4) Applicant--A person seeking to obtain a contract.

(5) Application denial period--A period of time during which HHSC denies a contract application submitted to HHSC.

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

(7) CAS Program--Community Attendant Services Program [attendant services].

(8) CFC PAS/HAB--A Medicaid state plan service provided through the Community First Choice (CFC) Option, described in 1 Texas Administrative Code Chapter 354, Subchapter A, Division 27 (relating to Community First Choice), under a contract for:

(A) the HCS Program;

(B) the TxHmL Program;

(C) a DSA in the CLASS Program; or

(D) the DBMD Program [program].

(9) CFS--Continued family services.

(10) Change of legal entity--An event that occurs when a contractor is required to obtain a new federal tax identification number.

(11) Change of ownership--An event that occurs when:

(A) as a result of a transfer or sale, at least 50 percent of the ownership of a contractor is held by one or more persons who owned less than 5 percent of the contractor before the transfer or sale; and

(B) the contractor is not required to obtain a new federal tax identification number.

(12) Choice list--A list of contracts under which an individual or LAR may choose to receive services.

(13) CLASS Program--Community Living Assistance and Support Services Program.

(14) Clean claim--In accordance with Code of Federal Regulations, Title 42, §447.45(b), a claim for services submitted by a contractor that can be processed without obtaining additional information from the contractor or a party other than HHSC, including a claim with errors originating in the Texas claims management system, but not including a claim from a contractor under investigation for fraud or abuse, or a claim under review for medical necessity.

(15) CMA--Case management agency.

(16) CMPAS Program--Consumer Managed Personal Attendant Services Program [managed personal attendant services].

(17) Contract--A written agreement between HHSC and another person that obligates the other person to provide a service to an individual in exchange for payment from HHSC. The term includes standard and provisional contracts.

(18) Contractor--The person other than HHSC who is a party to a contract.

(19) Contractual agreement--A written, legally binding agreement that is not a contract as defined in this section.

(20) Controlling ownership interest--A direct ownership interest, an indirect ownership interest, or a combination of direct and indirect ownership interests, of 5 percent or more in an applicant or contractor.

(21) Controlling person--A person who:

(A) has a controlling ownership interest;

(B) is a managing employee;

(C) has been delegated the authority to obligate or act on behalf of an applicant or contractor;

(D) is an officer or director of a corporation that is an applicant or contractor;

(E) is a partner in a partnership that is an applicant or contractor;

(F) is a member or manager in a limited liability company that is an applicant or contractor;

(G) is a trustee or trust manager of a trust that is an applicant or contractor;

(H) is a spouse of a person who is an applicant or contractor; or

(I) because of a personal, familial, or other relationship with an applicant or contractor, is in a position of actual control or authority with respect to the applicant or contractor, regardless of the person's title.

(22) Conviction--A determination of being found or proved guilty that:

(A) is any of the following:

(i) a judgment of conviction that has been entered by a federal, state or local court, regardless of whether:

(I) there is a post-trial motion or an appeal pending; or

(II) the judgment of conviction or other record relating to the criminal conduct has been expunged or otherwise removed;

(ii) a finding of guilt made by a federal, state, or local court; or

(iii) an acceptance of a plea of guilty or nolo contendere by a federal, state, or local court; and

(B) does not include successful completion of a period of deferred adjudication community supervision and receipt of a dismissal and discharge in accordance with Texas Code of Criminal Procedure, Article 42.12, Section 5(c).

(23) DADS--The Department of Aging and Disability Services.

(24) DAHS--Day activity and health services.

(25) Day--A calendar day, including weekends and holidays.

(26) DBMD Program--Deaf Blind with Multiple Disabilities Program.

(27) Desk review--A review by HHSC of a contractor's service delivery or business operation that takes place away from the contractor's administrative and service delivery sites, using records provided to HHSC by the contractor. The scope of the review is at the discretion of HHSC.

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

(29) Direct ownership interest--An interest in the ownership of an applicant or contractor as described in subparagraphs (A) and (B) of this paragraph.

(A) Direct ownership interest is:

(i) ownership of equity in the capital, stock, or profits of an applicant or contractor; or

(ii) ownership in a mortgage, deed of trust, note, or other obligation secured by property of an applicant or contractor.

(B) The percentage of direct ownership interest of an applicant or contractor, based on ownership of a mortgage, deed of trust, note, or other obligation, is determined by multiplying the percentage of ownership in the obligation by the percentage of the applicant's or contractor's assets used to secure the obligation. For example, ownership of 10 percent of a note secured by 60 percent of a contractor's or applicant's assets equals 6 percent direct ownership interest in the applicant or contractor (that is, 0.1 x 0.6 = 0.06).

(30) DSA--Direct service agency.

(31) Electronic record--Information that is stored in a medium having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities, and is retrievable in perceivable form.

(32) Emergency response 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 other man-made or natural disaster.

(33) Exploitation--"Exploitation" as defined by the statute or rule that governs the investigation of alleged exploitation of an individual.

(34) FC Program--Family Care Program [care].

(35) FMSA--Financial management services agency. An entity that contracts with HHSC to provide financial management services, as defined in §41.103 of this title (relating to Definitions).

(36) Governmental entity--An agency or other entity of federal, state, or local government.

(37) HCS Program--Home and Community-based Services Program.

(38) HCSSA--Home and community support services agency.

(39) HDM Program--Home-Delivered Meals (HDM) Program [Home delivered meals].

(40) HHS list of exclusions--A list made before September 1, 2014, of individuals and entities prohibited from conducting business with DADS in any capacity for a specified period.

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

(42) Indirect ownership interest--An interest in the ownership of an applicant or contractor as described in subparagraphs (A) and (B) of this paragraph.

(A) Indirect ownership interest is an ownership interest in a person that has a direct or indirect ownership interest in an applicant or contractor.

(B) The percentage of indirect ownership interest is determined by multiplying the percentage of ownership interest in the person that has a direct ownership interest in the applicant or contractor by the percentage of direct ownership that the person has in the applicant or contractor. For example:

(i) ownership of 10 percent of the stock of a corporation that owns 80 percent of the stock of an applicant or contractor equals 8 percent indirect ownership of the applicant or contractor (that is, 0.1 x 0.8 = 0.08); and

(ii) ownership of 50 percent of the stock of a corporation that owns 10 percent of the stock of a corporation that owns 80 percent of the stock of an applicant or contractor equals 4 percent indirect ownership of the applicant or contractor (that is, 0.5 x 0.1 x 0.8 = 0.04).

(43) Individual--A person who is enrolled in a program or service described in §49.101(a) of this subchapter (relating to Application).

(44) LAR--Legally authorized representative. A person authorized by law to act on behalf of an individual with regard to a particular matter. The term may include a parent, guardian, or managing conservator of a minor, or the guardian of an adult.

(45) LEIE--List of excluded individuals and entities. In this context, "individual" does not have the meaning as defined in this section.

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

(47) Managing employee--A person who exercises operational or managerial control over, or who conducts the day-to-day operation of, an applicant or contractor.

(48) Neglect--"Neglect" as defined by the statute or rule that governs the investigation of alleged neglect of an individual.

(49) OHR--Out of home respite.

(50) Paper record--Information that is stored on paper.

(51) Person--A corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, natural person, or any other legal entity that can function legally, sue or be sued, and make decisions through agents.

(52) Personal attendant--An employee or subcontractor of a contractor or an employee of a CDS employer who provides:

(A) personal attendant services in the PHC Program;

(B) personal attendant services in the FC Program;

(C) personal attendant services in the CAS Program;

(D) DAHS;

(E) RC;

(F) personal attendant services in the CMPAS Program;

(G) habilitation or CFC PAS/HAB in the CLASS Program;

(H) residential habilitation or CFC PAS/HAB in the DBMD Program;

(I) chore services in the DBMD Program;

(J) day habilitation in the DBMD Program;

(K) supported home living or CFC PAS/HAB in the HCS Program; or

(L) community support or CFC PAS/HAB in the TxHmL Program.

(53) PHC Program--Primary Home Care Program [home care].

(54) Provisional contract--An initial contract that HHSC enters into in accordance with §49.208 of this chapter (relating to Provisional Contract Application Approval) that has a stated expiration date.

(55) RC--Residential care.

(56) Records--Paper records and electronic records.

(57) Recoup--To reduce payments that are due to a contractor under a contract to satisfy a debt the contractor owes to HHSC but does not include making routine adjustments for prior overpayments to the contractor.

(58) Referral hold--An action in which HHSC prohibits a contractor from, for a period of time determined by HHSC, providing services to an individual not receiving services from the contractor at the time the referral hold was imposed.

(59) SFS--Support family services.

(60) Signature authority--A person authorized to negotiate and execute a contract on behalf of a contractor as identified on the HHSC "Governing Authority Resolution" form.

(61) SSPD--Special Services to Persons with Disabilities (SSPD) Program.

(62) Standard contract--A contract that HHSC enters into in accordance with §49.209 of this chapter (relating to Standard Contract) that does not have a stated expiration date.

(63) Subcontract--An agreement, other than a contract, between a contractor and another person that obligates the other person to provide all or part of the goods, services, work, or materials required of the contractor in a contract.

(64) Subcontractor--The person other than a contractor who is a party to a subcontract.

(65) TAS--Transition assistance services.

(66) TxHmL Program--Texas Home Living Program.

(67) Vendor hold--A temporary suspension of payments that are due to a contractor under a contract.

(68) Volunteer--A person who works for a contractor without compensation, other than reimbursement for actual expenses.

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

Filed with the Office of the Secretary of State on February 13, 2019.

TRD-201900452

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 31, 2019

For further information, please call: (512) 438-3385


SUBCHAPTER B. CONTRACTOR ENROLLMENT

40 TAC §49.201, §49.205

STATUTORY AUTHORITY

The amendments are authorized by Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; and Texas Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The amendments affect Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code §32.021.

§49.201.Contractors Not Subject to Certain Portions of Subchapter B.

Sections 49.202 - 49.205 and §§49.207 - 49.211 of this subchapter (relating to Provisional Contract; Provisional Contract Application Process; Additional Provisional Contract Application Requirements; License, Certification, Accreditation, and Other Requirements; Provisional Contract Application Denial; Provisional Contract Application Approval; Standard Contract; Contractor Change of Ownership or Legal Entity; a