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 Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate.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 in Subchapter D, Home and Community-based Services (HCS) Program and Community First Choice (CFC) and §9.553 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 purpose of the proposal is to revise the definitions of "provisional contract" and "standard contract" to ensure consistency with the definitions of those terms in Title 40, Part 1, Chapter 49, Contracting for Community Services. HHSC is proposing amendments to Chapter 49 to allow HHSC to limit a provisional contract to a term of no more than three years, and a standard contract to a term of no more than five years. The Chapter 49 amendments are proposed elsewhere in this issue of the Texas Register. The proposed amendments specify that the maximum term lengths do not include any extensions to which HHSC and a contractor may agree. Currently, a provisional contract must have a stated expiration date but there is no maximum term length set by rule. A standard contract currently does not have a stated expiration date, so it continues until terminated by HHSC or the contractor.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §9.153 revises the definitions of "provisional contract" and "standard contract" for the HCS Program to specify the term lengths for contracts and to state that the maximum term lengths do not include any extensions to which HHSC and a contractor may agree. The amendment also deletes the description of a provisional contract as being an "initial" contract because the meaning of initial was not clear in this context and Texas Administrative Code (TAC), Title 40, §49.208 explains the circumstances under which HHSC enters into a provisional contract.

The proposed amendment to §9.553 revises the definitions of "provisional contract" and "standard contract" for the TxHmL Program to specify the term lengths for contracts and to state that the maximum term lengths do not include any extensions to which HHSC and a contractor may agree. The amendment also deletes the description of a provisional contract as being an "initial" contract because the meaning of initial was not clear in this context and 40 TAC §49.208 explains the circumstances under which HHSC enters into a provisional contract.

FISCAL NOTE

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

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

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

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

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

(6) the proposed rules will expand existing rules;

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

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

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

Trey Wood has determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. These rules do not impose any additional costs on small businesses, micro-businesses, or rural communities required to comply with the rules.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas, and do not impose a cost on regulated persons.

PUBLIC BENEFIT AND COSTS

Kay Molina, Deputy Executive Commissioner, Procurement and Contracting Services, has determined that for each year of the first five years the rules are in effect, the public will benefit from having a description of the new contracting process used by HHSC.

Trey Wood has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because there are no new requirements for contractors to alter current business practices.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

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

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 20R048" in the subject line.

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

40 TAC §9.153

STATUTORY AUTHORITY

The amendments are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; 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 proposed amendments affect Texas Government Code, §531.0055, §531.021, and Chapter 531, Subchapter A-1, 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) - (90) (No change.)

(91) Provisional contract--A [An initial] contract that HHSC enters into with a program provider in accordance with §49.208 of this title (relating to Provisional Contract Application Approval) that has a term of no more than three years, not including any extension agreed to in accordance with §49.208(e) of this title [stated expiration date].

(92) - (113) (No change.)

(114) Standard contract--A contract that HHSC enters into with a program provider in accordance with §49.209 of this title (relating to Standard Contract) that has a term of no more than five years, not including any extension agreed to in accordance with §49.209(d) of this title [does not have a stated expiration date].

(115) - (131) (No change.)

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 August 31, 2020.

TRD-202003574

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-5609


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

40 TAC §9.553

STATUTORY AUTHORITY

The amendments are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; 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 proposed amendments affect Texas Government Code, §531.0055, §531.021, and Chapter 531, Subchapter A-1, 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) - (76) (No change.)

(77) Provisional contract--A [An initial] contract that HHSC enters into with a program provider in accordance with §49.208 of this title (relating to Provisional Contract Application Approval) that has a term of no more than three years, not including any extension agreed to in accordance with §49.208(e) of this title (relating to Standard Contract) [stated expiration date].

(78) - (96) (No change.)

(97) Standard contract--A contract that HHSC enters into with a program provider in accordance with §49.209 of this title [(relating to Standard Contract)] that has a term of no more than five years, not including any extension agreed to in accordance §49.209(d) of this title [does not have a stated expiration date].

(98) - (112) (No change.)

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 August 31, 2020.

TRD-202003575

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-5609


CHAPTER 42. DEAF BLIND WITH MULTIPLE DISABILITIES (DBMD) PROGRAM AND COMMUNITY FIRST CHOICE (CFC) SERVICES

SUBCHAPTER A. INTRODUCTION

40 TAC §42.103

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 an amendment to §42.103 in Title 40, Part 1, Chapter 42, Deaf Blind with Multiple Disabilities (DBMD) Program and Community First Choice (CFC) Services.

BACKGROUND AND PURPOSE

The purpose of the proposal is to revise the definition of "contract" to ensure consistency with the definitions of "provisional contract" and "standard contract" in Title 40, Part 1, Chapter 49, Contracting for Community Services. HHSC is proposing amendments to Chapter 49 to allow HHSC to limit a provisional contract to a term of no more than three years, and a standard contract to a term of no more than five years. The Chapter 49 amendments are proposed elsewhere in this issue of the Texas Register. The proposed amendments specify that the maximum term lengths do not include any extensions to which HHSC and a contractor may agree. Currently, a provisional contract must have a stated expiration date but there is no maximum term length set by rule. A standard contract currently does not have a stated expiration date, so it continues until terminated by HHSC or the contractor.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §42.103 revises the definition of "contract" for the DBMD Program to specify the term lengths for contracts and to state that the maximum term lengths do not include any extensions to which HHSC and a contractor may agree.

FISCAL NOTE

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

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

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

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

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

(6) the proposed rule will expand existing rules;

(7) the proposed rule 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

Trey Wood has determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. The rule does not impose any additional costs on small businesses, micro-businesses, or rural communities required to comply with the rule.

LOCAL EMPLOYMENT IMPACT

The proposed rule will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to this rule because the rule is necessary to protect the health, safety, and welfare of the residents of Texas, and do not impose a cost on regulated persons.

PUBLIC BENEFIT AND COSTS

Kay Molina, Deputy Executive Commissioner, Procurement and Contracting Services, has determined that for each year of the first five years the rule is in effect, the public will benefit from having a description of the new contracting process used by HHSC.

Trey Wood has also determined that for the first five years the rule is in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rule because there are no new requirements for contractors to alter current business practices.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

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

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 20R048" in the subject line.

STATUTORY AUTHORITY

The amendment is authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; 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; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; 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 proposed amendment affects Texas Government Code, §531.0055, §531.021, and Chapter 531, Subchapter A-1, 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) - (28) (No change.)

(29) Contract--A provisional contract that HHSC enters into in accordance with §49.208 of this title [chapter ] (relating to Provisional Contract Application Approval) that has a term of no more than three years, not including any extension agreed to in accordance with §49.208(e) of this title [stated expiration date] or a standard contract that HHSC enters into in accordance with §49.209 of this title [chapter] (relating to Standard Contract) that has a term of no more than five years, not including any extension agreed to in accordance with §49.209(d) of this title [does not have a stated expiration date].

(30) - (124) (No change.)

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 August 31, 2020.

TRD-202003576

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-5609


CHAPTER 45. COMMUNITY LIVING ASSISTANCE AND SUPPORT SERVICES AND COMMUNITY FIRST CHOICE (CFC) SERVICES

SUBCHAPTER A. GENERAL PROVISIONS

40 TAC §45.103

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 in Title 40, Part 1, Chapter 45, Community Living Assistance and Support Services and Community First Choice (CFC) Services.

BACKGROUND AND PURPOSE

The purpose of the proposal is to revise the definition of "contract" to ensure consistency with the definitions of "provisional contract" and "standard contract" in Title 40, Part 1, Chapter 49, Contracting for Community Services. HHSC is proposing amendments to Chapter 49 to allow HHSC to limit a provisional contract to a term of no more than three years, and a standard contract to a term of no more than five years. The Chapter 49 amendments are proposed elsewhere in this issue of the Texas Register. The proposed amendments specify that the maximum term lengths do not include any extensions to which HHSC and a contractor may agree. Currently, a provisional contract must have a stated expiration date but there is no maximum term length set by rule. A standard contract currently does not have a stated expiration date, so it continues until terminated by HHSC or the contractor.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §45.103 revises the definition of "contract" for the Community Living Assistance and Support Services Program to specify the term lengths for contracts and to state that the maximum term lengths do not include any extensions to which HHSC and a contractor may agree.

FISCAL NOTE

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

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

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

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

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

(6) the proposed rule will expand existing rules;

(7) the proposed rule 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

Trey Wood has determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. The rule does not impose any additional costs on small businesses, micro-businesses, or rural communities required to comply with the rule.

LOCAL EMPLOYMENT IMPACT

The proposed rule will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to this rule because the rule is necessary to protect the health, safety, and welfare of the residents of Texas, and do not impose a cost on regulated persons.

PUBLIC BENEFIT AND COSTS

Kay Molina, Deputy Executive Commissioner, Procurement and Contracting Services, has determined that for each year of the first five years the proposed rule is in effect, the public will benefit from having a description of the new contracting process used by HHSC.

Trey Wood has also determined that for the first five years the rule is in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rule because there are no new requirements for contractors to alter current business practices.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

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

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 20R048" in the subject line.

STATUTORY AUTHORITY

The amendment is authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; 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; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; 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 proposed amendment affects Texas Government Code, §531.0055, §531.021, and Chapter 531, Subchapter A-1, 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) - (32) (No change.)

(33) Contract--A provisional contract that HHSC enters into in accordance with §49.208 of this title [chapter ] (relating to Provisional Contract Application Approval) that has a term of no more than 3 years, not including any extension agreed to in accordance with §49.208(e) of this title [stated expiration date] or a standard contract that HHSC enters into in accordance with §49.209 of this title [chapter] (relating to Standard Contract) that has a term of no more than five years, not including any extension agreed to in accordance with §49.209(d) of this title [does not have a stated expiration date].

(34) - (125) (No change.)

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 August 31, 2020.

TRD-202003577

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-5609


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 §§49.102, 49.208 - 49.210, 49.532, 49.551, 49.601, and 49.702; and new §49.561 in Title 40, Part 1, Chapter 49, Contracting for Community Care Services.

BACKGROUND AND PURPOSE

Chapter 49, Contracting for Community Services, governs contracting with HHSC to provide the community-based services for which DADS previously contracted. The proposed rules limit a provisional contract to a term of no more than three years, and a standard contract to a term of no more than five years, not including any contract extensions.

The proposed rules also implement changes in the enrollment and renewal processes for contractors subject to Chapter 49. Currently, HHSC enters into a provisional contract with a qualified contractor. A provisional contract must have a stated expiration date, generally no more than 30 months from the date the contract term begins. If, before the provisional contract term expires, HHSC determines the contractor meets contract and program qualifications, HHSC may enter into a standard contract, which does not have a stated expiration date, with the contractor. These proposed rule amendments change a standard contract from being open-ended to having a term of no more than five years. HHSC will determine, before each provisional or standard contract term expires, whether the contractor will be offered a standard contract. This operational change will ensure that HHSC contracts for community-based services are routinely reviewed and updated to contain current contract provisions.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §49.102 revises the definitions of "provisional contract" and "standard contract" to specify the term lengths for contracts and to state that the maximum term lengths do not include any extensions to which HHSC and a contractor may agree. The proposed amendment also deletes "initial" from the definition of a provisional contract because the meaning of "initial" was not clear in this context and §49.208 explains the circumstances under which HHSC enters into a provisional contract.

The proposed amendment to §49.208(c) clarifies that HHSC may subject a provisional contract to certain conditions. The proposed amendment to subsection (e) specifies that an agreement between HHSC and a contractor to extend the term of a provisional contract must be in writing and clarifies that HHSC's agreement to extend a provisional contract is not a decision by HHSC that it will offer a standard contract to the contractor. The proposed amendment allows a provisional contract to be extended only once and for no more than one year.

The proposed amendment to §49.209 adds new subsection (a) to clarify that, during a provisional or standard contract term, HHSC may offer the contractor a standard contract that will be effective the day after the existing contract ends. Currently, HHSC does not offer subsequent standard contracts to a contractor because a standard contract does not have a stated expiration date and continues until terminated by HHSC or the contractor. The proposed amendment allows for multiple standard contracts. The proposed amendment also adds new subsection (d) to allow HHSC and a contractor to agree in writing to extend the term of a standard contract. The proposed amendment allows a standard contract to be extended only once and for no more than one year. Subsection (d) also specifies that HHSC's agreement to extend a standard contract is not a decision by HHSC that it will offer another standard contract to the contractor. The proposed amendment also states that if a contractor does not enter into a standard contract in accordance with HHSC's instructions, HHSC notifies appropriate parties of the application denial period set by HHSC. Currently, the rule provides that this occurs if a contractor "refuses" a standard contract, which may give the impression that HHSC would send notice of an application denial period only after a contractor took some action to refuse a standard contract. Under the proposed amendment, HHSC may send notice of an application denial period based on a contractor's inaction. The proposed amendment deletes subsections (a), (b), (c) and (e), relating to a contractor's qualification for a standard contract, because the reasons HHSC may decide not to offer a standard contract to a contractor are set forth in subsection (a) of proposed new §49.561, concerning HHSC Does Not Offer a Standard Contract. Subsection (d) is deleted but new subsection (a) provides the same information, which is that a standard contract HHSC offers is for the same program, service, or facility, in the same service, catchment, or waiver contract area as the contract in effect when HHSC offered the standard contract. Subsection (a) also states that the terms of the contract that HHSC offers may be different than the existing contract.

The proposed amendment to §49.210 revises the rule references in subsections (a)(1) and (b)(1) to reflect proposed amendments to §49.551.

The proposed amendment to §49.532(b)(2) allows HHSC to impose a vendor hold on a contractor if HHSC does not offer the contractor a standard contract when its contract expires. This is similar to the existing provision, which allows HHSC to impose a vendor hold if a contractor does not qualify for a standard contract when its provisional contract expires. The proposed amendment to §49.532(b)(3) allows HHSC to impose a vendor hold on a contractor that does not enter into a standard contract when its contract expires. This is similar to the existing provision, which allows HHSC to impose a vendor hold if a contractor qualifies for a standard contract when its provisional contract expires, but the contractor refuses a standard contract. Both revisions are necessary to reflect that HHSC may offer successive standard contracts to a contractor instead of only one. In addition, the amendment uses terminology consistent with other amendments being made in this chapter. Specifically, the proposed amendment does not refer to a contractor "qualifying" for a standard contract or a contractor "refusing" a standard contract.

The proposed amendment to §49.551 requires a contractor to notify HHSC if it intends to not enter into a standard contract when its contract expires. The notification requirements are substantially the same as the notice required for contract termination. The proposed amendment adds requirements for a contractor and for HHSC when a contractor does not enter into a standard contract when its contract expires. These requirements are the same as the actions that must be taken when a contractor terminates its contract. The proposed amendment also revises the references in subsection (c)(2)(C) to reflect proposed amendments to §49.702.

Proposed new §49.561 describes the circumstances under which HHSC may decide not to offer a standard contract to a contractor. HHSC may make this decision for the same reasons it may deny a provisional contract application or terminate a contract. In addition, HHSC may decide not to offer a standard contract to a contractor that has a provisional contract and HHSC has imposed a vendor hold during the term of that contract. The proposed new section also describes what a contractor must do if HHSC decides not to offer a standard contract. Specifically, the contractor must cooperate with HHSC; the local intellectual and developmental disability authority, if applicable; and other contractors to transfer individuals receiving services. The contractor must also submit documentation and take other action directed by HHSC. Finally, the proposed new rule describes what HHSC does when it decides not to offer a standard contract to a contractor. These actions are the same as when HHSC terminates a contract--it provides certain notice to individuals receiving services; removes the contract from the choice list; and notifies the relevant persons of the application denial period that HHSC set.

The proposed amendment to §49.601 revises subsection (a) to reflect that HHSC may review a contractor's records to evaluate billing standards if HHSC does not offer the contractor a standard contract or when a contractor does not enter into a standard contract when its contract expires. The amendment uses terminology consistent with other amendments being made in this chapter. Specifically, the proposed amendment does not refer to a contractor "qualifying" for a standard contract or a contractor "refusing" a standard contract.

The proposed amendment to §49.702 requires the minimum application denial period for a contractor that is not offered a standard contract to be 12 months. Current rule requires HHSC to set an application denial period of at least 24 months for a contractor that does not qualify for a standard contract. The amendment gives HHSC more flexibility to set an application denial period based on the facts of each situation. The proposed amendment deletes existing subsection (b) and incorporates its provisions into subsection (d) as proposed. The proposed amendment makes non-substantive changes to subsection (c) as proposed. The proposed amendment to subsection (d), as proposed, incorporates the provisions of existing subsection (b), which describes the application denial period for a contractor that does not enter into a standard contract (in current rule, described as a contractor that refuses a standard contract). The proposed amendment to subsection (e), as proposed, makes the subsection apply to a contractor that does not enter into a standard contract, as well as a contractor that terminates its contract. The proposed amendment to subsection (f) clarifies that the type of contract application that would be submitted after a contract denial period is completed would be a provisional contract application. In several places, references to a provisional or standard contract have been changed to "contract" because, as defined, a contract includes both types.

FISCAL NOTE

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

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

(2) implementation of the proposed rules will affect the number of HHSC employee positions;

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

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

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

(6) the proposed rules will expand existing rules;

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

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

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

Trey Wood has determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. These rules do not impose any additional costs on small businesses, micro-businesses, or rural communities required to comply with the rules.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas, and do not impose a cost on regulated persons.

PUBLIC BENEFIT AND COSTS

Kay Molina, Deputy Executive Commissioner, Procurement and Contracting Services, has determined that for each year of the first five years the proposed rules are in effect, the public will benefit from having a description of the new contracting process used by HHSC.

Trey Wood has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because there are no new requirements for contractors to alter current business practices.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

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

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register Comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 20R048" in the subject line.

SUBCHAPTER A. APPLICATION AND DEFINITIONS

40 TAC §49.102

STATUTORY AUTHORITY

The amendments are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; 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 proposed amendments affect Texas Government Code, §531.0055, §531.021, and Chapter 531, Subchapter A-1, and Texas Human Resources Code, §32.021.

§49.102.Definitions.

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

(1) - (52) (No change.)

(53) Provisional contract--A [An initial] contract that HHSC enters into in accordance with §49.208 of this chapter (relating to Provisional Contract Application Approval) that has a term of no more than three years, not including any extension agreed to in accordance with §49.208(e) of this chapter [stated expiration date].

(54) - (60) (No change.)

(61) Standard contract--A contract that HHSC enters into in accordance with §49.209 of this chapter (relating to Standard Contract) that has a term of no more than five years, not including any extension agreed to in accordance with §49.209(d) of this chapter [does not have a stated expiration date].

(62) - (67) (No change.)

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 August 31, 2020.

TRD-202003578

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-5609


SUBCHAPTER B. CONTRACTOR ENROLLMENT

40 TAC §§49.208 - 49.210

STATUTORY AUTHORITY

The amendments are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; 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 proposed amendments affect Texas Government Code, §531.0055, §531.021, and Chapter 531, Subchapter A-1, and Texas Human Resources Code, §32.021.

§49.208.Provisional Contract Application Approval.

(a) HHSC approves a provisional contract application if it is not denied in accordance with §49.207 of this subchapter (relating to Provisional Contract Application Denial).

(b) If HHSC approves a provisional contract application, HHSC:

(1) provides written notification to the applicant;

(2) enters into a provisional contract with the applicant; and

(3) except as provided in §49.302(b) of this chapter (relating to General Requirements), places the contract on the choice list for the program or service covered by the provisional contract.

(c) HHSC may subject a [A] provisional contract [may be subject] to conditions [recommended by HHSC] in accordance with 1 TAC Chapter 352 (relating to Medicaid and the Children's Health Insurance Program Provider Enrollment) and 1 TAC Chapter 371, Subchapter E (relating to Provider Disclosure and Screening).

(d) The effective date of a provisional contract is as follows:

(1) if the applicant applied for the contract in accordance with §49.210(a)(2) of this subchapter (relating to Contractor Change of Ownership or Legal Entity), the effective date is the effective date of the change of ownership or legal entity of the contractor; or

(2) for an applicant other than one described in paragraph (1) of this subsection, the effective date is determined by HHSC.

(e) HHSC and a contractor may agree, in writing, to extend the term of a provisional contract. A provisional contract may be extended only once and for no more than one year. The extension of a provisional contract is not a decision [determination ] by HHSC that it will offer the contractor [qualifies for] a standard contract.

§49.209.Standard Contract.

(a) During the term of a provisional or standard contract, HHSC may offer the contractor a standard contract that will be effective the day after the existing contract ends. HHSC offers a standard contract that is for the same program, service, or facility, in the same service, catchment, or waiver contract area as the existing contract, but other terms of the contract offered may be different than the terms of the existing contract.

[(a Except as provided in subsection (e) of this section, a contractor that has a provisional contract, other than a provisional contract for the HCS Program, TxHmL Program, or hospice, qualifies for a standard contract if, based on contract monitoring described in §49.411 of this chapter (relating to Contract and Fiscal Monitoring), HHSC determines that the overall compliance score for the provisional contract is 90 percent or greater.]

[(b) Except as provided in subsection (e) of this section, a contractor that has a provisional contract for the HCS or TxHmL Program qualifies for a standard contract if:]

[(1) the contractor is certified by HHSC in accordance with §9.183 of this title (relating to Program Provider Compliance and Corrective Action) or §9.587 of this title (relating to Program Provider Compliance and Corrective Action); and]

[(2) during the term of the provisional contract, HHSC has not imposed a vendor hold on the contractor in accordance with §9.183 or §9.587 of this title.]

[(c) Except as provided in subsection (e) of this section, a contractor that has a provisional contract for hospice qualifies for a standard contract if the contractor has the license and written notification required by §49.205(a)(5) of this subchapter (relating to License, Certification, Accreditation, and Other Requirements).]

[(d) A standard contract issued by HHSC in accordance with subsections (a) - (c) of this section is for the same program, service, or facility in the same service, catchment, or waiver contract area as the provisional contract.]

[(e) A contractor may not qualify for a standard contract for any reason for which HHSC may deny a provisional contract application, as described in §49.207 of this subchapter (relating to Provisional Contract Application Denial).]

(b) [(f)] HHSC may subject a standard contract to conditions in accordance with 1 TAC Chapter 352 (relating to Medicaid and the Children's Health Insurance Program Provider Enrollment) and 1 TAC Chapter 371, Subchapter E (relating to Provider Disclosure and Screening).

[(g) A standard contract is effective the day after the provisional contract ends.]

[(h) If HHSC determines a contractor does not qualify for a standard contract, HHSC notifies:]

[(1) the contractor of the determination, in writing, and includes in the notification the application denial period set in accordance with §49.702(a) of this chapter (relating to Application Denial Period); and]

[(2) any controlling person of the contractor, in writing, of the application denial period.]

(c) [(i)] If HHSC offers a standard contract to a contractor and the [a] contractor does not enter into the [refuses a] standard contract in accordance with HHSC's instructions, HHSC notifies the contractor and any controlling person of the contractor, in writing, of the application denial period set in accordance with §49.702(c) [§49.702(b) ] of this chapter (relating to Application Denial Period).

(d) HHSC and a contractor may agree, in writing, to extend the term of a standard contract. A standard contract may be extended only once and for no more than one year. The extension of a standard contract is not a decision by HHSC that it will offer the contractor another standard contract.

§49.210.Contractor Change of Ownership or Legal Entity.

(a) If a contractor intends to undergo a change of ownership or change of legal entity, the following action must be taken to obtain a new provisional contract:

(1) at least 60 days before the proposed date of the change of ownership or change of legal entity, the contractor must notify HHSC in accordance with §49.551 [§49.551(a) ] of this chapter (relating to Contractor Terminating Contract or Not Entering into a Standard Contract) [(relating to Termination of Contract by Contractor)] that it intends to terminate the contract;

(2) the contractor (for a change of ownership) or new legal entity (for a change of legal entity) must apply for a provisional contract in accordance with §49.203 of this subchapter (relating to Provisional Contract Application Process) at least 60 days before the proposed date of the change of ownership or change of legal entity;

(3) the contractor or new legal entity must receive approval from HHSC of the provisional contract application before the date of the change of ownership or change of legal entity in accordance with §49.208 of this subchapter (relating to Provisional Contract Application Approval); and

(4) if required to have a license under §49.205 of this subchapter (relating to License, Certification, Accreditation, and Other Requirements) to be a contractor, the contractor or new legal entity must ensure that the date of the change of ownership or change of legal entity is the same as the date of the change of ownership or change of legal entity for the new license.

(b) If a contractor undergoes a change of ownership or change of legal entity and the requirements in subsection (a)(1) - (4) of this section are met, HHSC:

(1) notifies individuals receiving services or LARs in accordance with §49.551(c)(2)(A) [§49.551(c)(1) ] of this chapter; and

(2) enters into a new provisional contract with the contractor or new legal entity.

(c) If a contractor undergoes a change of ownership or change of legal entity and the requirements in subsection (a)(1) - (4) of this section are not met, HHSC:

(1) proposes to terminate the contractor's contract in accordance with §49.534(a)(2)(C) of this chapter;

(2) notifies individuals receiving services or LARs in accordance with §49.534(c)(1) and (2) of this chapter; and

(3) does not enter into a new provisional contract with the contractor or new legal entity with an effective date the same as the date of the change.

(d) If a contractor or new legal entity does not receive approval in accordance with subsection (a)(3) of this section, HHSC does not enter into a contract with the contractor or new legal entity.

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 August 31, 2020.

TRD-202003579

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-5609


SUBCHAPTER E. ENFORCEMENT BY HHSC, [AND] TERMINATION BY CONTRACTOR, AND NO OFFER OF STANDARD CONTRACT BY HHSC

DIVISION 4. SANCTIONS

40 TAC §49.532

STATUTORY AUTHORITY

The amendments are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; 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 proposed amendments affect Texas Government Code, §531.0055, §531.021, and Chapter 531, Subchapter A-1, and Texas Human Resources Code, §32.021.

§49.532.Vendor Hold.

(a) HHSC imposes a vendor hold on a contractor if:

(1) HHSC has proposed to terminate the contract and the contractor participates in attendant compensation rate enhancement as described in 1 TAC §355.112 (relating to Attendant Compensation Rate Enhancement); or

(2) The HHSC Office of Inspector General determines that a vendor hold must be imposed in accordance with 42 CFR §455.23(a) due to a credible allegation of fraud for which an investigation is pending under the Medicaid Program.

(b) HHSC may impose a vendor hold on a contractor:

(1) if HHSC has proposed to terminate the contract and the contractor does not participate in attendant compensation rate enhancement as described in 1 TAC §355.112;

(2) if HHSC does not offer the contractor [does not qualify for] a standard contract when its contract expires [at the expiration of a provisional contract];

(3) if the contractor does not enter into [qualifies for] a standard contract when its contract expires [at the expiration of a provisional contract but refuses a standard contract];

(4) if the contractor terminates the contract;

(5) if HHSC determines the contractor has not complied with the contract, including a determination of non-compliance described in §49.411(e) of this chapter (relating to Contract and Fiscal Monitoring) or §49.413(e) of this chapter (relating to Investigation);

(6) if the contractor has not submitted or has not complied with an immediate protection plan as described in §49.511(d) of this subchapter (relating to Immediate Protection and Immediate Protection Plan);

(7) if the contractor has not submitted or has not complied with a corrective action plan as described in §49.522(d) of this subchapter (relating to Corrective Action Plan); or

(8) if the contractor's application packet described in §49.203(a)(3) of this chapter (relating to Provisional Contract Application Process):

(A) contained incorrect information; or

(B) contains information that has become incorrect and the contractor has not notified HHSC in accordance with §49.302(i) - (q) of this chapter (relating to General Requirements);

(9) for a contractor that has a contract for the HCS Program, in accordance with §9.183 of this title (relating to Program Provider Compliance and Corrective Action); or

(10) for a contractor that has a contract for the TxHmL Program, in accordance with §9.587 of this title (relating to Program Provider Compliance and Corrective Action).

(c) If HHSC imposes a vendor hold on a contractor in accordance with subsection (a) or (b) of this section, HHSC notifies the contractor of the vendor hold in writing. HHSC may impose a vendor hold pending an administrative hearing appealing the vendor hold.

(d) HHSC releases a vendor hold less any amounts being recouped by HHSC:

(1) imposed in accordance with subsections (a)(1) and (b)(1) - (4) of this section if:

(A) the contract has been terminated or expires and any amounts owed to individuals and LARs have been paid by the contractor;

(B) HHSC withdraws the proposed contract termination; or

(C) the contractor appeals the proposed contract termination and the final decision from the administrative hearing is favorable to the contractor;

(2) imposed in accordance with subsection (a)(2) of this section, if the HHSC Office of Inspector General determines that HHSC must resume payment under the contract;

(3) imposed in accordance with subsection (b)(5) - (8) of this section, if HHSC determines the contractor has resolved the reason for the vendor hold; or

(4) imposed in accordance with subsection (b)(9) - (10) of this section if HHSC determines it may be released as described in §9.183 or §9.587 of this title.

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 August 31, 2020.

TRD-202003580

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-5609


DIVISION 6. [TERMINATION BY] CONTRACTOR TERMINATING CONTRACT OR NOT ENTERING INTO STANDARD CONTRACT

40 TAC §49.551

STATUTORY AUTHORITY

The amendments are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; 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 proposed amendments affect Texas Government Code, §531.0055, §531.021, and Chapter 531, Subchapter A-1, and Texas Human Resources Code, §32.021.

§49.551.Contractor Terminating Contract or Not Entering into a Standard Contract. [Termination of Contract by Contractor.]

(a) A contractor must notify HHSC if the contractor intends to:

(1) terminate its contract; or

(2) not enter into a standard contract when its contract expires.

(b) [(a)] The notification required by subsection (a) of this section must be given [If a contractor intends to terminate a contract, the contractor must notify HHSC of the intended termination] in accordance with §49.302(q) of this chapter (relating to General Requirements) and [. The notification] must:

(1) include:

(A) the contract number;

(B) the type of program or service;

(C) the proposed date of contract [the] termination or the date of contract expiration;

(D) the reason for terminating the contract or not entering into a standard contract [the termination]; and

(E) if it is notification of termination and the reason for terminating the contract is [for] a change of ownership or change of legal entity, the proposed date of the change; and

(2) be received by HHSC at least 60 days before the proposed date of the termination or the date of expiration.

(c) [(b)] If a contractor terminates its contract or does not enter into a standard contract when its contract expires [notifies HHSC that it intends to terminate a contract, the contractor must]:

(1) the contractor must:

(A) [(1)] cooperate fully with HHSC, the LIDDA if applicable, and other contractors to transfer individuals receiving services from the contractor; and

(B) [(2)] submit documentation or take other action as directed by HHSC; and [.]

(2) [(c) If HHSC receives notification that a contractor intends to terminate a contract,] HHSC:

(A) [(1)] notifies individuals receiving services from the contractor or LARs that:

(i) [(A)] the contractor is terminating the contract or not entering into a standard contract when its contract expires and that HHSC has placed or will place the contractor's payments on a vendor hold; and

(ii) [(B)] that the individuals or LARs may choose to receive services under a contract listed on the choice list, subject to program-specific requirements; and

(B) [(2)] removes the contract to be terminated or the expired contract from the appropriate choice list; and [.]

(C) [(d) If a contractor terminates a contract, for a reason other than a change of ownership or change of legal entity, HHSC] notifies the contractor and any controlling person, in writing, of the application denial period set in accordance with §49.702(d) or (e) [§49.702(e) or (f)] of this chapter (relating to Application Denial Period).

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 August 31, 2020.

TRD-202003581

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-5609


DIVISION 7. HHSC DOES NOT OFFER A STANDARD CONTRACT

40 TAC §49.561

STATUTORY AUTHORITY

The new rule is authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; 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 proposed new rule affects Texas Government Code, §531.0055, §531.021, and Chapter 531, Subchapter A-1, and Texas Human Resources Code, §32.021.

§49.561.HHSC Does Not Offer a Standard Contract.

(a) HHSC may decide not to offer a standard contract to a contractor:

(1) for any reason for which HHSC may deny a provisional contract application, as described in §49.207 of this chapter (relating to Provisional Contract Application Denial);

(2) for any reason for which HHSC may terminate a contract, as described in §49.534 of this subchapter (relating to Termination of Contract by HHSC); or

(3) if the contractor has a provisional contract for the HCS or TxHmL Program and HHSC imposed a vendor hold on the contractor in accordance with §9.183 (relating to Program Provider Compliance and Corrective Action) or §9.587 of this title (relating to Program Provider Compliance and Corrective Action) during the term of the provisional contract.

(b) If HHSC decides not to offer a contractor a standard contract when its contract expires:

(1) the contractor must:

(A) cooperate fully with HHSC, the LIDDA if applicable, and other contractors to transfer individuals receiving services from the contractor; and

(B) submit documentation or take other action as directed by HHSC; and

(2) HHSC:

(A) notifies individuals receiving services from the contractor or LARs that:

(i) the contractor's contract is ending and HHSC has placed or will place the contractor's payments on a vendor hold; and

(ii) the individuals or LARs may choose to receive services under a contract listed on the choice list, subject to program-specific requirements;

(B) removes the expiring contract from the appropriate choice list; and

(C) notifies:

(i) the contractor of the decision, in writing, and includes in the notification the application denial period set in accordance with §49.702(a) of this chapter (relating to Application Denial Period); and

(ii) any controlling person of the contractor, in writing, of the application denial period set in accordance with §49.702(a) of this chapter.

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 August 31, 2020.

TRD-202003582

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-5609


SUBCHAPTER F. REVIEW BY HHSC OF EXPIRING OR TERMINATED CONTRACT

40 TAC §49.601

STATUTORY AUTHORITY

The amendments are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; 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 proposed amendments affect Texas Government Code, §531.0055, §531.021, and Chapter 531, Subchapter A-1, and Texas Human Resources Code, §32.021.

§49.601.HHSC Review and Contractor Requirements Related to Expiring or Terminated Contract.

(a) HHSC may review a contractor's records to evaluate billing standards in accordance with program-specific requirements if:

(1) HHSC proposes to terminate the contractor's [a] contract;

(2) HHSC does not offer the [a] contractor [does not qualify for] a standard contract when its contract expires [, as described in §49.209 of this chapter (relating to Standard Contract)];

(3) the [a] contractor does not enter into [qualifies for] a standard contract when its contract expires [, as described in §49.209 of this chapter, but refuses a standard contract]; or

(4) the [a] contractor terminates its [the] contract.

(b) If one of the events described in subsection (a)(1) - (4) of this section occurs, a contractor must provide the following information to HHSC:

(1) the location of records related to the contract expiring or being terminated; and

(2) the name, address, phone number, and e-mail address of a person HHSC may contact to arrange access to records.

(c) HHSC may recoup funds in accordance with §49.533 of this chapter (relating to Recoupment) based on the results of a review described in subsection (a) of this section.

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 August 31, 2020.

TRD-202003583

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-5609


SUBCHAPTER G. APPLICATION DENIAL PERIOD

40 TAC §49.702

STATUTORY AUTHORITY

The amendments are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; 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 proposed amendments affect Texas Government Code, §531.0055, §531.021, and Chapter 531, Subchapter A-1, and Texas Human Resources Code, §32.021.

§49.702.Application Denial Period.

(a) If HHSC decides not to offer a standard contract to a contractor [does not qualify for a standard contract], as described in §49.561 [§49.209] of this chapter (relating to HHSC Does Not Offer a Standard Contract), HHSC sets an application denial period for the contractor or controlling person of the contractor that applies:

(1) to all programs and services; and

(2) for a period of time determined by HHSC, but no less than 12 [24] months after the date the previous [provisional] contract expires [ends].

[(b) If a contractor qualifies for a standard contract, as described in §49.209 of this chapter, but the contractor refuses a standard contract at that time, HHSC sets an application denial period for the contractor or controlling person of the contractor that applies:]

[(1) to the same program or service as the provisional contract; and]

[(2) for 12 months after the date the provisional contract ends.]

(b) [(c)] If HHSC terminates a [provisional or standard] contract for the contractor's failure to provide services for 12 consecutive months, as required by §49.534(a)(2)(A) of this chapter (relating to Termination of Contract by HHSC), HHSC sets an application denial period for the contractor or controlling person of the contractor that applies:

(1) to the same program or service as the terminated [provisional or standard] contract; and

(2) for 12 months after the date of termination.

(c) [(d)] If HHSC terminates a [provisional or standard] contract for a reason other than the contractor's death [of the contractor] or the contractor's failure to provide services for 12 consecutive months [other than the reason described in subsection (c) of this section], HHSC sets an application denial period for the contractor or controlling person of the contractor that applies:

(1) to all programs and services; and

(2) for a period of time determined by HHSC, but no less than 12 months after the date of termination.

(d) [(e)] If a contractor does not enter into a standard contract or terminates its [a provisional or standard] contract in accordance with the contract, including §49.551 of this chapter (relating to Contractor Terminating Contract or Not Entering into a Standard Contract) [(relating to Termination of Contract by Contractor)], for a reason other than a change of ownership or change of legal entity, HHSC sets an application denial period for the contractor or controlling person of the contractor that applies:

(1) to the same service or program as the terminated or expired [provisional or standard] contract; and

(2) for a period of time determined by HHSC, but no less than 12 months after the date the contract terminated or expired [of termination].

(e) [(f)] If a contractor does not enter into a standard contract or terminates a [provisional or standard] contract not in accordance with the contract, including §49.551 of this chapter, HHSC sets an application denial period for the contractor or controlling person of the contractor that applies:

(1) to all programs and services; and

(2) for a period of time determined by HHSC, but no less than 12 months after the date the contract terminated or expired [of termination].

(f) [(g)] If a contractor submits a provisional contract application to HHSC after the expiration of an application denial period described in subsections (a) - (e) [(a) - (f)] of this section, HHSC may deny the contract application for a reason described in §49.207 of this chapter (relating to Provisional Contract Application Denial).

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 August 31, 2020.

TRD-202003584

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-5609


PART 19. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

CHAPTER 705. ADULT PROTECTIVE SERVICES

The Department of Family and Protective Services (DFPS) proposes new §§705.101, 705.103, 705.105, 705.107, 705.301, 705.303, 705.501, 705.701, 705.703, 705.705, 705.901, 705.903, 705.1101, 705.1103, 705.1301, 705.1303, 705.1305, 705.1307, 705.1309, 705.1311, 705.1501, 705.1503, 705.1505, 705.1507, 705.1509, 705.1511, 705.1513, 705.1515, 705.1517, 705.1519, 705.1521, 705.1523, 705.1525, 705.1527, 705.1529, 705.1531, 705.1533, 705.1901, 705.1903, 705.1905, 705.1907, 705.1909, 705.1911, 705.1913, 705.1915, 705.1917, 705.1919, 705.1921, 705.1923, and 705.1925; the repeal of §§705.1001, 705.1003, 705.1005, 705.1007, 705.1009, 705.1011, 705.2101, 705.2103, 705.2105, 705.2107, 705.3101, 705.3102, 705.4101, 705.4103, 705.4105, 705.4107, 705.4109, 705.4111, 705.5101, 705.6101, 705.7101, 705.7103, 705.7105, 705.7107, 705.7109, 705.7111, 705.7113, 705.7115, 705.7117, 705.7119, 705.7121, 705.7123, 705.8101, and 705.9001 in 40 TAC Chapter 705, concerning Adult Protective Services.

BACKGROUND AND PURPOSE

The purpose of the rule changes is as follows:

First, these changes update the rules to reflect the current scope and authority of the Adult Protective Services (APS) program as a result of Senate Bill (SB) 200, 84th Legislature, R.S. (2015) and the resulting transfer of the former APS Provider Investigations program to the Health and Human Services Commission (HHSC). The rules in Title 40, Texas Administrative Code, Chapter 705 contained many terms and provisions that pertained to both the APS program and the former APS Provider Investigations program. The proposed changes make the rules applicable to only the APS program.

The proposed changes include copying the Employee Misconduct Registry (EMR) rules from 40 TAC, Chapter 711, Subchapter O, into the APS Chapter, 40 TAC Chapter 705, with minor updates to reflect the legislative transfer of the Provider Investigations program to HHSC. While the changes appear far-reaching, they simply involve moving the rules to the APS Chapter and making minor edits to reflect the current structure of the APS program. As the rules in Subchapter O apply to both the APS program at DFPS and the Provider Investigations program at HHSC, HHSC will be transferring the rules to Title 26 in a separate rule packet.

Additionally, the rules are being reviewed in compliance with Texas Government Code section 2001.039 which requires agencies to review rules every four years and readopt, readopt with amendments, or repeal. Except for 40 TAC section 705.2103, all rules in 40 TAC Chapter 705 are due for rule review. As a result, the rules are being reorganized for clarity and to better align with the practice and structure of the APS program and its investigations. There is extensive repeal and renumbering. However, most of the updates are organizational, non-substantive, and reflect minor changes, including using plain language and making the rules clearer for the public.

More substantive changes have been made to the definitions of abuse, neglect, and exploitation. Currently, Human Resources Code (HRC) section 48.002(a)(2),(3),(4) provides definitions of abuse, neglect and exploitation; HRC section 48.002(c) also gives APS authority to adopt definitions of abuse, neglect, and exploitation as an alternative to the definitions found in section 48.002(a). In FY2012, APS used this authority to expand its definitions in rule. While this expansion allowed APS to incorporate paid caretakers into its definitions, it also led to some overlap between definitions of physical abuse, emotional abuse, and neglect. This overlap caused confusion for staff when conducting investigations. The differing statute and rule definitions also caused some confusion for providers and the general public. In the proposed rules, APS has clarified and simplified definitions for abuse, neglect, and exploitation while still capturing the intent and mirroring the definitions found in statute.

Finally, proposed §705.1923 more specifically implements HRC section 48.102 (Reports of Investigations in Schools), which requires the adoption of rule concerning who receives APS investigation reports related to alleged maltreatment of an adult with a disability by school personnel. While rules regarding release of the report were covered generally in current subchapter M, relating to Confidentiality and Release of Records (now proposed as new Subchapter S), the proposed rules specifically and directly contain a rule pertaining to who receives copies of reports of investigations in schools.

SECTION-BY-SECTION SUMMARY

New §705.101 updates the definitions of terms used during an APS case. The new rule combines terms in former rules §§705.1001, 705.7105, 711.1402, and 711.1407 and incorporates most terms with either no changes or minor clarifying changes. It includes the term 'caretaker' and 'designated perpetrator' with updates to the terminology. Specifically, the rule combines the definitions of paid caretaker into the caretaker definition as both caretaker and paid caretaker assume responsibility for the client and there is no need to distinguish based on monetary compensation. In addition, the definition of 'designated perpetrator' is updated to reflect that such perpetrator may be eligible for the EMR registry. It also adds several new definitions including those for goods, HHSC, HHSC PI, release hearing, and services.

New §705.103 consolidates into one rule the definitions from former §705.1003, §705.1005, and §705.1007 by combining the definitions of sexual abuse, physical abuse, emotional abuse and verbal abuse into one definition of abuse to closely mirror the statutory definition of abuse found in Human Resources Code (HRC) §48.002(a)(2).

New §705.105 combines the definitions of self-neglect (§705.1009(a)) and caretaker neglect (§705.1009(b)) into one comprehensive definition of neglect that closely mirrors the statutory definition of neglect in HRC §48.002(a)(4).

New §705.107 updates the definition of financial exploitation. It removes theft from the definition of financial exploitation; theft is not part of the statutory definition of exploitation in HRC §48.002(3). It also removes the description of informed consent from rule, but it remains in policy.

New §705.301 was renumbered as part of the rule review and incorporates the content from former §705.5101 with only non-substantive grammatical changes.

New §705.303 was renumbered as part of the rule review and incorporates the content from former §705.8101 with only grammatical changes for clarity.

New §705.501 was renumbered as part of the rule review and incorporates and clarifies the content from former §705.2101. The new rule clarifies that allegations, not investigations, are prioritized. It also clarifies in rule that APS establishes timeframes for conducting the initial face-to-face contact with the alleged victim based on the priority assigned to the allegation(s).

New §705.701 was renumbered as part of the rule review and incorporates the content from former §705.2103. The new rule replaces "individual receiving services" with "an alleged victim who is also the subject of an investigation conducted by HHSC PI" because an individual receiving services as defined in 26 TAC §711.3(24) could be a minor.

New §705.703 was renumbered as part of the rule review and incorporates the content from former §705.2105 with grammatical edits for clarity and to remove the reference to HRC §48.205 which is more applicable to the content of new §705.705 and added there instead.

New §705.705 was renumbered as part of the rule review and incorporates the content from former §705.2107 with the addition of a citation to HRC §48.205.

New §705.901 was renumbered as part of the rule review and incorporates the content from former §705.3101 with clarifying edits. The new rule clarifies that APS is not limited to providing literature on family violence to an alleged victim in only Spanish or English, but provides written information, as available, in any language the victim prefers.

New §705.903 was renumbered as part of the rule review and incorporates the content from former §705.3102 with non-substantive grammatical changes.

The proposed repeals of §§705.1001 - 705.1011 delete rules that are no longer necessary because the relevant content is being incorporated into and renumbered as new rules §§705.101, 705.103, 705.105, and 705.107.

New §705.1101 incorporates the content from former §705.6101 (a) through (c) with grammatical edits for clarity and the transfer of content from subsection (d) into its own new rule, new §705.1103.

New §705.1103 incorporates the content from former §705.6101 (d) with clarification that the rule specifically pertains to supervisory consultations regarding cases.

New §705.1301was renumbered as part of the rule review and incorporates the content from former §705.4101 without change.

New §705.1303 was renumbered as part of the rule review and incorporates the content from former §705.4103 with updated internal citations.

New §705.1305 was renumbered as part of the rule review and incorporates the content from former §705.4105 without changes.

New §705.1307 was renumbered as part of the rule review and incorporates the content from former §705.4107 without changes.

New §705.1309 was renumbered as part of the rule review and incorporates the content from former §705.4109 without changes.

New §705.1311 was renumbered as part of the rule review and incorporates the content from former §705.4111 without changes.

New §705.1501 through §705.1533 were renumbered as part of the rule review and incorporate relevant content from Subchapter O, 40 TAC 711, pertaining to the EMR as applicable to APS.

New §705.1501 was renumbered as part of the rule review and incorporates content from §711.1401 except for that which is duplicative of the content of the definition of EMR in new §705.101. It also makes clear the applicability to APS investigations.

New §705.1503 was renumbered as part of the rule review and incorporates the content from §711.1403 with updated internal citation.

New §705.1505 was renumbered as part of the rule review and incorporates relevant content from the definitions located in former §711.1402 and §711.1406 that were not transferred into new Subchapter A Definitions. It does not include the content applicable to only the HHSC Provider Investigations program.

New §705.1507 was renumbered as part of the rule review and incorporates the content from §711.1408 and replaces "individual receiving agency services" with "alleged victim or client" to make it appropriate to the terms used by APS. It also updates the internal citation.

New §705.1509 was renumbered as part of the rule review and incorporates the content from §711.1413 and specifies "financial exploitation" instead of "exploitation".

New §705.1511 was renumbered as part of the rule review and incorporates the content from §711.1414 and adds clarifying language to more closely mirror the language in the Notice of Finding.

New §705.1513 was renumbered as part of the rule review and incorporates the content from §711.1415 with updated internal citation.

New §705.1515 was renumbered as part of the rule review and incorporates the content from §711.1417 with minor edits for clarity including changing "certified mailing" to "certified envelope" and "regular mailing" to "first-class envelope".

New §705.1517 was renumbered as part of the rule review and incorporates the content from §711.1419 with a change of the word "prior" to "before".

New §705.1519 was renumbered as part of the rule review and incorporates the content from §711.1421 with non- substantive changes.

New §705.1521 was renumbered as part of the rule review and incorporates the content from §711.1423 with a minor edit for clarity and consistency with terminology (changes "working days" to "business days" to mirror terminology in §705.1515).

New §705.1523 was renumbered as part of the rule review and incorporates the content from §711.1425 with updated internal citation.

New §705.1525 was renumbered as part of the rule review and incorporates the content from §711.1426 with minor edits; the term "Final Order" replaces "Hearing Order" and an internal citation is updated.

New §705.1527 was renumbered as part of the rule review and incorporates the content from §711.1427 without change.

New §705.1529 was renumbered as part of the rule review and incorporates the content from §711.1429 with minor updates; the term "HHSC" replaces "DADS" and "dispositive order that may become final (Final Order)" replaces "Hearing Order", and an internal citation is updated.

New §705.1531 was renumbered as part of the rule review and incorporates the content from §711.1431. Language was clarified regarding removal of an employee's name from the registry pending final disposition on judicial review.

New §705.1533 was renumbered as part of the rule review and incorporates the content from §711.1432; the title and subsections of the rule were changed for clarity to incorporate DFPS action when an employee's administrative case is fully resolved or has reached final disposition.

New §705.1901 was renumbered as part of the rule review and incorporates the content from former §705.7101 with non-substantive changes.

New §705.1903 was renumbered as part of the rule review and incorporates the content from former §705.7103 with non-substantive changes.

New §705.1905 was renumbered as part of the rule review and incorporates content from former §705.7105 (the definitions for case records and investigation records), removes duplicative terms, and changes the term "exploitation" to "financial exploitation".

New §705.1907 was renumbered as part of the rule review and incorporates the content from former §705.7107, removes nonapplicable content concerning clients who are minors, restructures the lists for clarity, and changes "exploitation" to financial exploitation".

New §705.1909 was renumbered as part of the rule review and incorporates the content from former §705.7109 with a change from "exploitation" to financial exploitation".

New §705.1911 was renumbered as part of the rule review, incorporates the applicable content from former §705.7111 and removes the reference to §711.401.

New §705.1913, which was renumbered as part of the rule review, incorporates the content from former §705.7113, with minor updates to terminology used in the rule to make the rules clearer and easier for the public to understand.

New §705.1915 was renumbered as part of the rule review and incorporates the content from former §705.7115 with plain language edits.

New §705.1917 was renumbered as part of the rule review and incorporates the content from former §705.7117 with an internal citation updated.

New §705.1919 was renumbered as part of the rule review and incorporates the content from former §705.7119 with a minor plain language edit.

New §705.1921 was renumbered as part of the rule review and incorporates the content from former §705.7121 with minor edits for plain language.

New §705.1923 explains who receives copies of reports of investigations in schools pursuant to HRC §48.102.

New §705.1925 was renumbered as part of the rule review and incorporates the content from former §705.7123 with plain language edits.

The proposed repeals of §§705.2101 - 705.2107 delete rules as the content is being incorporated into new rules that are renumbered to §§705.501, 705.701, 705.703 and 705.705.

The proposed repeals of §705.3101 and §705.3102 delete rules as the content is included in new rules §705.901 and §705.903.

The proposed repeals of §§705.4101 - 705.4111 delete rules and the content is being incorporated into new rules that are renumbered to §§705.1301, 705.1303, 705.1305, 705.1307, 705.1309, 705.1311, and 705.1313.

The proposed repeal of §705.5101 deletes the rule because the rule content was updated into renumbered new §705.301.

The proposed repeal of §705.6101 deletes the rule because the rule content was updated for clarity into renumbered new §705.1101.

The proposed repeals of §§705.7101 - 705.7123 deletes rules and the content is being incorporated into new rules that are renumbered to §§705.1901, 705.1903, 705.1905, 705.1907, 705.1909, 705.1911, 705.1913, 705.1915, 705.1917, 705.1919, 705.1921, and 705.1925.

The proposed repeal of §705.8101 deletes the rule because the rule content was updated into renumbered new §705.303.

The proposed repeal of §705.9001 deletes the rule because the rule content is now obsolete.

FISCAL NOTE:

STATE AND LOCAL GOVERNMENT

David Kinsey, Chief Financial Officer of DFPS, has determined, under Government Code section 2001.024(a)(4), 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

DFPS has determined, under Government Code section 2001.0221, 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 will not affect the number of employee positions;

(3) implementation will not require an increase or decrease in future legislative appropriations to the agency;

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

(5) the proposed rule amendments will create new regulations to the extent that the content from the rules in 40 TAC 711, Subchapter O is being incorporated with edits into new rules in 40 TAC 705;

(6) the proposed rule amendments will not expand, limit, or repeal an existing regulation;

(7) the proposed rule amendments will not increase the number of individuals subject to the rule; and

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

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

Mr. Kinsey has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. The rules do not apply to small or micro-businesses, or rural communities. Therefore, neither an economic impact statement nor a regulatory flexibility analysis is required under Government Code section 2006.002.

PUBLIC BENEFIT AND ECONOMIC COSTS TO PERSONS

Kez Wold, Associate Commissioner for Adult Protective Services, has determined, under Government Code section 2001.024(a)(5) that for each year of the first five years the sections are in effect, the public benefit anticipated as a result of enforcing the section will be an update of the current rules to reflect changes to the department's statutory authority and a more efficient and well-organized rule chapter. There are no anticipated economic costs to persons who are required to comply with these sections as proposed.

IMPACT ON LOCAL ECONOMY

There is no anticipated negative impact on local economy, and therefore a local employment impact statement is not required under Government Code section 2001.022 or 2001.024(a)(6).

COSTS TO REGULATED PERSONS/COST IN-COST OUT

Pursuant to subsection (c)(7) of Texas Government Code, §2001.0045, the provisions of section 2001.0045 do not apply to a rule that is adopted by the Department of Family and Protective Services.

ENVIRONMENTAL REGULATORY ANALYSIS

The department has determined that this proposal is not a "major environmental rule" as defined by Government Code, section 2001.0225, and therefore, neither an environmental regulatory analysis nor impact statement is required.

TAKINGS IMPACT ASSESSMENT

DFPS 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

Comments and questions on this proposal must be submitted within 30 days of publication of the proposal in the Texas Register. Electronic comments and questions may be submitted to Angela Medina, APS Policy Manager at Angela.Medina@dfps.state.tx.us. Hard copy comments may be submitted to the DFPS Rules Coordinator, Legal Services 19R11, Department of Family and Protective Services E-611, P.O. Box 149030, Austin, Texas 78714-9030.

SUBCHAPTER A. DEFINITIONS

40 TAC §§705.101, 705.103, 705.105, 705.107

STATUTORY AUTHORITY

These rules are proposed under Human Resources Code (HRC) §40.027, which provides that the Department of Family and Protective Services commissioner shall adopt rules for the operation and provision of services by the department.

The proposed new sections implement the requirements of Texas Government Code section 2001.039 regarding rule review as well as Texas Human Resources Code section 48.102. They also reflect changes resulting from SB 200 of the 84th Legislature (2015).

No other statutes, articles, or codes are affected by the proposed rules.

§705.101.How are the terms in this chapter defined?

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

(1) Administrative law judge--An attorney who serves as a hearings examiner in a due process hearing, including a release hearing or Employee Misconduct Registry (EMR) hearing.

(2) Adult--A person aged 18 or older, or an emancipated minor.

(3) Adult with a disability--A person aged 18 or older, or an emancipated minor, with a physical, mental, or developmental disability that substantially impairs the person's ability to adequately provide for his or her own care or protection.

(4) Allegation--An assertion that an alleged victim is in a state of or at risk of harm due to abuse, neglect, or financial exploitation.

(5) Alleged perpetrator--A person who is reported to be responsible for the abuse, neglect, or financial exploitation of an alleged victim.

(6) Alleged victim--An adult with a disability or an adult aged 65 or older who has been reported to APS to be in a state of or at risk of harm due to abuse, neglect, or financial exploitation.

(7) Alleged victim/perpetrator--An adult with a disability or an adult aged 65 or older who has been reported to APS to be in a state of or at risk of self-neglect.

(8) APS--Adult Protective Services, a division of DFPS.

(9) Capacity to consent to protective services--Having the mental and physical ability to understand the services offered and to accept or reject those services knowing the consequences of the decision.

(10) Caretaker--

(A) A guardian, representative payee, or other person who by act, words, or course of conduct has acted so as to cause a reasonable person to conclude that the person has accepted the responsibility for protection, food, shelter, or care for an alleged victim;

(B) An employee of a home and community support services agency (HCSSA) providing non-Medicaid services to an alleged victim; or

(C) A person, including a family member, privately hired and receiving monetary compensation to provide personal care services, as defined in Texas Health and Safety Code, §142.001(22-a), to an alleged victim.

(11) Client--An alleged victim or alleged victim/perpetrator who has been determined by a validated finding to be in need of protective services. The alleged victim does not have to meet financial eligibility requirements.

(12) Commissioner--The commissioner of DFPS or the commissioner's designee.

(13) Designated perpetrator--An alleged perpetrator who has been determined by a validated finding to have abused, neglected, or financially exploited a client. A designated perpetrator may be eligible for inclusion on the Employee Misconduct Registry, when the abuse, neglect, or financial exploitation meets the definition of reportable conduct.

(14) Designated victim--An alleged victim with a valid abuse, neglect, or financial exploitation finding.

(15) Designated victim/perpetrator--An alleged victim/perpetrator with a validated self-neglect finding.

(16) DFPS--Department of Family and Protective Services.

(17) Emancipated minor--A person under 18 years of age who has the power and capacity of an adult. This includes a minor who has had the disabilities of minority removed by a court of law or a minor who, with or without parental consent, has been married. Marriage includes common-law marriage.

(18) Emergency protective services--Services provided to an alleged victim who is also the subject of an investigation conducted by HHSC PI under Texas Human Resources Code, Chapter 48, Subchapter F, to alleviate danger of serious harm or death.

(19) Emotional harm--A highly unpleasant mental reaction with observable signs of distress, such as anguish, grief, fright, humiliation, or fury.

(20) Employee Misconduct Registry (EMR)--A database established under Texas Health and Safety Code, Chapter 253, and maintained by HHSC that contains the names of persons who have committed reportable conduct. A person whose name is recorded in the EMR is prohibited by law from working for certain facilities or agencies in Texas, as provided under Texas Health and Safety Code, Chapter 253.

(21) EMR hearing--A due process hearing offered to a person who has been found to have committed reportable conduct for the purpose of appealing the finding of reportable conduct as well as the underlying finding of abuse, neglect, or financial exploitation.

(22) Goods--Tangible objects such as food, clothing, shelter and other items necessary to meet one's basic needs.

(23) HHSC--Health and Human Services Commission.

(24) HHSC PI--Health and Human Services Commission Regulatory Services Division Provider Investigations.

(25) Home and community support services agency (HCSSA)--An agency licensed under Texas Health and Safety Code, Chapter 142.

(26) Intimidation--Behavior by actions or words creating fear of physical harm, death, or abandonment.

(27) Ongoing relationship--A personal relationship that includes:

(A) frequent and regular interaction;

(B) a reasonable assumption that the interaction will continue; and

(C) an establishment of trust, beyond a commercial or contractual agreement.

(28) Physical harm--Physical pain, injury, illness, or any impairment of physical condition.

(29) Protective services--The services furnished by DFPS or by another protective services agency to an APS client, designated victim, or designated victim/perpetrator, or to that person's relative or caretaker if DFPS determines the services are necessary to prevent the client, designated victim, or designated victim/perpetrator from being in or returning to a state of abuse, neglect, or financial exploitation. These services may include social casework, case management, and arranging for psychiatric and health evaluation, home care, day care, social services, health care, respite services, and other services consistent with Texas Human Resources Code, §48.002. The term does not include the investigation of an allegation of abuse, neglect, or financial exploitation.

(30) Purchased client services--A type of protective services provided in accordance with Texas Human Resources Code, §48.002(a)(5), including, but not limited to, emergency shelter, medical, and psychiatric assessments, in-home care, residential care, heavy housecleaning, minor home repairs, money management, transportation, emergency food, medication, and other supplies.

(31) Release hearing--A formal due process hearing conducted by an administrative law judge. A release hearing provides a designated perpetrator with an opportunity to appeal DFPS's decision to release information about him or her to persons or entities outside DFPS, except for information released as required or allowed by state or federal law or in accordance with this chapter.

(32) Report--An allegation of abuse, neglect, or financial exploitation, as described in Texas Human Resources Code, §48.002, which is made under Texas Human Resources Code, §48.051(a).

(33) Reporter--A person who makes a report to DFPS about a situation of alleged abuse, neglect, or financial exploitation of an alleged victim.

(34) Serious harm--In danger of sustaining significant physical harm or death; or danger of imminent impoverishment or deprivation of basic needs.

(35) Services--Activities provided by others, including, but not limited to, cooking, cleaning, money management, medical care, or mental health care.

(36) Substantially impairs--When a disability grossly and chronically diminishes an adult's physical or mental ability to live independently or provide self-care as determined through observation, diagnosis, evaluation, or assessment.

(37) Sustained perpetrator--A designated perpetrator whose validated finding of abuse, neglect, or financial exploitation of a designated victim has been sustained by an administrative law judge in a due process hearing, including a release hearing or Employee Misconduct Registry (EMR) hearing, or if the designated perpetrator has waived the right to a hearing.

(38) Unreasonable confinement--An act that results in a forced isolation from the people one would normally associate with, including friends, family, neighbors, and professionals; an inappropriate restriction of movement; or the use of any inappropriate restraint.

§705.103.How is abuse defined?

In this chapter, when the alleged perpetrator is a caretaker, family member, or other person who has an ongoing relationship with the alleged victim, abuse is defined as:

(1) the negligent or willful infliction of injury, unreasonable confinement, intimidation, or cruel punishment with resulting physical or emotional harm or pain to the alleged victim; or

(2) sexual abuse of the alleged victim, including any involuntary or nonconsensual sexual conduct that would constitute an offense under Texas Penal Code, Section 21.08, (indecent exposure) or Texas Penal Code, Chapter 22, Assaultive Offenses.

§705.105.How is neglect defined?

In this chapter, neglect is defined as the failure to provide for oneself the goods or services, including medical services, which are necessary to avoid physical or emotional harm or pain or the failure of a caretaker to provide such goods or services.

§705.107.How is financial exploitation defined?

In this chapter, when an alleged perpetrator is a caretaker, family member, or other person who has an ongoing relationship with the alleged victim, financial exploitation is defined as the illegal or improper act or process of the alleged perpetrator using, or attempting to use, the resources of the alleged victim, including the alleged victim's Social Security number or other identifying information, for monetary or personal benefit, profit, or gain without the informed consent of 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 August 25, 2020.

TRD-202003527

Tiffany Roper

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-3397


SUBCHAPTER C. APS PROGRAM OVERVIEW

40 TAC §705.301, §705.303

STATUTORY AUTHORITY

These rules are proposed under Human Resources Code (HRC) §40.027, which provides that the Department of Family and Protective Services commissioner shall adopt rules for the operation and provision of services by the department.

The proposed new sections implement the requirements of Texas Government Code section 2001.039 regarding rule review as well as Texas Human Resources Code section 48.102. They also reflect changes resulting from SB 200 of the 84th Legislature (2015).

No other statutes, articles, or codes are affected by the proposed rules.

§705.301.What is DFPS's policy on training APS staff?

(a) DFPS provides the professional development of all APS staff through training and education programs in compliance with Texas Human Resources Code, §40.035, and Chapter 702, Subchapter G of this title (relating to Training and Education).

(b) APS training incorporates actual case examples that are realistic and indicative of staff's current or prospective duties.

§705.303.How does DFPS educate the public about APS?<

(a) DFPS conducts a statewide public awareness campaign to educate the public regarding abuse, neglect, and financial exploitation of alleged victims and to reduce the incidences of maltreatment involving adults with disabilities and adults aged 65 or older.

(b) Based on available funding, DFPS utilizes a selection of:

(1) public service announcements;

(2) program brochures and literature;

(3) a prevention website; and

(4) speaking engagements, by enlisting the assistance of community organizations.

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 August 25, 2020.

TRD-202003528

Tiffany Roper

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-3397


SUBCHAPTER E. ALLEGATION PRIORITIES

40 TAC §705.501

STATUTORY AUTHORITY

These rules are proposed under Human Resources Code (HRC) §40.027, which provides that the Department of Family and Protective Services commissioner shall adopt rules for the operation and provision of services by the department.

The proposed new sections implement the requirements of Texas Government Code section 2001.039 regarding rule review as well as Texas Human Resources Code section 48.102. They also reflect changes resulting from SB 200 of the 84th Legislature (2015).

No other statutes, articles, or codes are affected by the proposed rules.

§705.501.How are allegations prioritized?

(a) APS assigns the following priorities to reported allegations:

(1) Priority I--Allegation that the alleged victim is in a state of serious harm or is in danger of death from abuse or neglect.

(2) Priority II--Allegation that the alleged victim is abused, neglected, or financially exploited and, as a result, is at risk of serious harm.

(3) Priority III--Allegation that the alleged victim is in a state of abuse or neglect when the severity and immediacy of the allegation do not meet the definitions in paragraphs (1) or (2) of this subsection.

(4) Priority IV--Allegation that the alleged victim is financially exploited when there is no serious harm.

(b) APS establishes the timeframe for conducting the initial face-to-face contact with the alleged victim based on the priority assigned to the allegation(s).

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 August 25, 2020.

TRD-202003529

Tiffany Roper

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-3397


SUBCHAPTER G. ELIGIBILITY

40 TAC §§705.701, 705.703, 705.705

STATUTORY AUTHORITY

These rules are proposed under Human Resources Code (HRC) §40.027, which provides that the Department of Family and Protective Services commissioner shall adopt rules for the operation and provision of services by the department.

The proposed new sections implement the requirements of Texas Government Code section 2001.039 regarding rule review as well as Texas Human Resources Code section 48.102. They also reflect changes resulting from SB 200 of the 84th Legislature (2015).

No other statutes, articles, or codes are affected by the proposed rules.

§705.701.Who is eligible for emergency protective services?

Emergency protective services may be provided to an alleged victim who is also the subject of an investigation conducted by HHSC PI and:

(1) receives services from a provider as defined by Texas Human Resources Code, §48.251(a)(9); or

(2) lives in a residence that is owned, operated or controlled by a provider of home and community-based services under the home and community-based services waiver program described by Texas Government Code, §534.001(11)(B), regardless of whether the alleged victim is receiving services under that waiver program from the provider.

§705.703.Who is eligible for purchased client services?

Purchased client services may be provided to an alleged victim who is receiving protective services and has a service plan developed by APS indicating that purchased client services are needed to remedy abuse, neglect, or financial exploitation.

§705.705.When are purchased client services available?

(a) Other state and local resources must be used before purchased client services are expended in accordance with Texas Human Resources Code, §48.205.

(b) Not all purchased client services are available in all geographic areas of the state. DFPS may limit the units of service or length of time that clients can receive purchased client services, based upon service plans, availability of funds, and availability of service providers.

(c) If the region does not have sufficient funds to provide purchased client services to all eligible clients, the client will not be able to receive purchased client services at the time the client is determined eligible. Clients who are still in need of purchased client services when services are available will be given priority based upon the date of the service plan indicating the need for purchased client 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 August 25, 2020.

TRD-202003530

Tiffany Roper

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-3397


SUBCHAPTER I. FAMILY VIOLENCE

40 TAC §705.901, §705.903

STATUTORY AUTHORITY

These rules are proposed under Human Resources Code (HRC) §40.027, which provides that the Department of Family and Protective Services commissioner shall adopt rules for the operation and provision of services by the department.

The proposed new sections implement the requirements of Texas Government Code section 2001.039 regarding rule review as well as Texas Human Resources Code section 48.102. They also reflect changes resulting from SB 200 of the 84th Legislature (2015).

No other statutes, articles, or codes are affected by the proposed rules.

§705.901.What actions does APS perform when alleged victims are also victims of family violence?

(a) When APS staff validates an allegation that an alleged victim is a victim of family violence as specified in Texas Family Code, §71.004, APS staff:

(1) documents that the alleged victim is a victim of family violence; and

(2) provides the alleged victim with written information in the alleged victim's preferred language, as available, concerning community services.

(b) Statistical compilations of the documented findings are included in DFPS's annual report.

§705.903.Can DFPS apply for protective orders?

When APS staff validates an allegation that an alleged victim is a victim of family violence as specified in Texas Family Code, §71.004, DFPS may apply for a protective order to protect the victim. Before DFPS files the protective order, APS staff contacts the victim and a non-abusive adult member of the household, if available:

(1) to notify them of DFPS's intent to file a protective order; and

(2) to request assistance in developing a safety plan for the protection of the victim and any non-abusive household members.

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 August 25, 2020.

TRD-202003531

Tiffany Roper

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-3397


SUBCHAPTER K. INVESTIGATIONS

40 TAC §705.1101, §705.1103

STATUTORY AUTHORITY

These rules are proposed under Human Resources Code (HRC) §40.027, which provides that the Department of Family and Protective Services commissioner shall adopt rules for the operation and provision of services by the department.

The proposed new sections implement the requirements of Texas Government Code section 2001.039 regarding rule review as well as Texas Human Resources Code section 48.102. They also reflect changes resulting from SB 200 of the 84th Legislature (2015).

No other statutes, articles, or codes are affected by the proposed rules.

§705.1101.What assessments does APS use?

(a) APS uses a series of three assessments.

(1) Safety assessment. When APS investigates, APS uses a safety assessment to determine if the alleged victim is in imminent risk of abuse, neglect, or financial exploitation, or is in a state of abuse, neglect, or financial exploitation and needs protective services. A safety assessment helps APS determine current danger factors and if immediate intervention is necessary to mitigate them.

(2) Risk of recidivism assessment: If APS validates abuse, neglect, or financial exploitation, APS uses a risk of recidivism assessment to help determine whether the client is at low, moderate, or high risk of being an alleged victim within the next 12 months.

(3) Strengths and needs assessment: If APS validates abuse, neglect, or financial exploitation and provides protective services, APS uses a strengths and needs assessment to help develop a service plan appropriate to the client's needs.

(b) Each assessment is comprehensive, and at a minimum, assesses:

(1) environmental conditions;

(2) financial condition;

(3) physical, medical, and mental health conditions;

(4) social interaction and support; and

(5) need for legal intervention.

§705.1103.When must an APS caseworker consult with a supervisor regarding a case?

An APS caseworker must consult with a supervisor regarding a case when:

(1) abuse, neglect, or financial exploitation is validated;

(2) the client has a current threat to his or her life or physical safety; and

(3) the client refuses to accept services or withdraws a previous acceptance 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 August 25, 2020.

TRD-202003532

Tiffany Roper

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-3397


SUBCHAPTER M. RELEASE HEARINGS

40 TAC §§705.1301, 705.1303, 705.1305, 705.1307, 705.1309, 705.1311

STATUTORY AUTHORITY

These rules are proposed under Human Resources Code (HRC) §40.027, which provides that the Department of Family and Protective Services commissioner shall adopt rules for the operation and provision of services by the department.

The proposed new sections implement the requirements of Texas Government Code section 2001.039 regarding rule review as well as Texas Human Resources Code section 48.102. They also reflect changes resulting from SB 200 of the 84th Legislature (2015).

No other statutes, articles, or codes are affected by the proposed rules.

§705.1301.How are terms in this subchapter defined?

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

(1) Emergency--Abuse, neglect, or financial exploitation which, without immediate intervention, would result in a child or an adult with a disability or aged 65 or older being in a state of or at risk of serious harm.

(2) Release--The release of data outside of DFPS without the designated perpetrator's consent, except for data released as allowed by law or in accordance with this chapter.

§705.1303.Does the designated perpetrator have the right to appeal?

(a) When APS staff validates an allegation of abuse, neglect, or financial exploitation against a designated perpetrator and an entity or employer (such as a contracting agency or senior center) allows such designated perpetrator to have access to adults with disabilities, adults aged 65 or older, or children, then the APS caseworker may notify the entity of the findings by complying with this subchapter. If the findings are to be released to any entity or employer, the designated perpetrator must be given prior written notification, except in emergencies, and an opportunity to request an Administrative Review of Investigative Findings and a hearing before the State Office of Administrative Hearings.

(b) If the designated perpetrator is an employee as defined in §705.1505 of this chapter (relating to How are the terms in this subchapter defined?) and subject to placement on the Employee Misconduct Registry established under Texas Health and Safety Code, Chapter 253, the perpetrator may request a hearing as described in Subchapter O of this chapter (relating to Employee Misconduct Registry).

(c) A designated perpetrator who is offered an EMR hearing under subsection (b) of this section may not also request a release hearing, as described in this chapter, relating to the same allegations of abuse, neglect, or financial exploitation.

(d) DFPS may elect to offer due process for an emergency release in an EMR hearing, as described in Subchapter O of this chapter (relating to Employee Misconduct Registry).

§705.1305.How is the designated perpetrator notified of the intent to release?

(a) The caseworker must give written notification to each designated perpetrator if:

(1) allegations of abuse, neglect, or financial exploitation are validated;

(2) the findings are to be released outside of DFPS to an entity or employer which allows the designated perpetrator access to adults with disabilities, adults aged 65 or older, or children; and

(3) the designated perpetrator, as a result of the release, may be denied a right or privilege, such as employment.

(b) Written notification must include:

(1) the findings to be released;

(2) the entity or employer to which the findings will be released;

(3) the designated perpetrator's right to request a copy of the investigation documentation, from which the reporter's name has been removed;

(4) a warning that the request for a copy of the investigation documentation may be denied if release of the investigation documentation would jeopardize an ongoing criminal investigation, or if the attorney representing DFPS in a lawsuit has determined that the information should be withheld;

(5) DFPS's decision that an emergency exists and that the findings have already been released, if applicable;

(6) the designated perpetrator's right to an administrative review and a release hearing to appeal the findings, and a warning that the findings will be released without the designated perpetrator's consent if the designated perpetrator does not request an appeal and the findings have not already been released in an emergency;

(7) the requirement that the designated perpetrator must request the appeal in writing and that the request must be postmarked within 20 days after the official notice is mailed by DFPS; and

(8) a statement that the designated perpetrator is responsible for keeping DFPS timely informed of the designated perpetrator's current address and to immediately notify DFPS of any change of address or contact information throughout the investigation and any period of time during which an appeal is pending.

§705.1307.What is the designated perpetrator's role during an administrative review?

(a) The designated perpetrator may:

(1) appear in person at the administrative review and may be accompanied by a representative;

(2) submit written material that is relevant to the case; or

(3) have a certified interpreter provided by DFPS if the designated perpetrator does not speak English or is deaf, or may provide his own interpreter.

(b) The designated perpetrator is responsible for:

(1) any costs incurred for the review, except for interpreter services provided by DFPS; and

(2) keeping DFPS timely informed of his current address at all times during the review period.

§705.1309.Are administrative reviews open to the general public?

Administrative reviews are closed to the general public consistent with the required statutory confidentiality of DFPS records. Only the designated perpetrator and the designated perpetrator's representative may be present.

§705.1311.Who is notified of the confidential decision?<

If the final outcome of the appeal or any subsequent litigation alters or reverses the APS findings, everyone notified of the original findings must be notified of the final decision. Notification may be in the same form as the original notification. The decision is confidential and may be disclosed only as allowed by law or this chapter.

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 August 25, 2020.

TRD-202003533

Tiffany Roper

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-3397


SUBCHAPTER O. EMPLOYEE MISCONDUCT REGISTRY

40 TAC §§705.1501, 705.1503, 705.1505, 705.1507, 705.1509, 705.1511, 705.1513, 705.1515, 705.1517, 705.1519, 705.1521, 705.1523, 705.1525, 705.1527, 705.1529, 705.1531, 705.1533

STATUTORY AUTHORITY

These rules are proposed under Human Resources Code (HRC) §40.027, which provides that the Department of Family and Protective Services commissioner shall adopt rules for the operation and provision of services by the department.

The proposed new sections implement the requirements of Texas Government Code section 2001.039 regarding rule review as well as Texas Human Resources Code section 48.102. They also reflect changes resulting from SB 200 of the 84th Legislature (2015).

No other statutes, articles, or codes are affected by the proposed rules.

§705.1501.What is the purpose of this subchapter?

The purpose of this subchapter is to implement Texas Human Resources Code, Chapter 48, Subchapter I (relating to the Employee Misconduct Registry), as it applies to APS investigations.

§705.1503.To which investigations does this subchapter apply?

(a) This subchapter applies to APS investigations involving an employee as defined in §705.1505 of this subchapter (relating to How are the terms in this subchapter defined?).

(b) Notwithstanding subsection (a) of this section, a certified nurse aide who commits reportable conduct while working for an agency is eligible to be reported to the EMR, as provided by Texas Health and Safety Code, §253.001(3).

§705.1505.How are the terms in this subchapter defined?

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

(1) Agency--A home and community support services agency licensed under Texas Health and Safety Code, Chapter 142.

(2) Employee--A person who:

(A) works for an agency;

(B) provides personal care services, active treatment, or any other services to an alleged victim; and

(C) is not licensed by the state to perform the services the person performs for the agency.

§705.1507.How is reportable conduct defined for the purpose of this subchapter?

(a) Reportable conduct as defined in Texas Human Resources Code, §48.401, includes:

(1) abuse or neglect that causes or may cause death or harm to an alleged victim or client;

(2) sexual abuse of an alleged victim or client;

(3) financial exploitation of an alleged victim or client in an amount of $25 or more; and

(4) emotional, verbal, or psychological abuse that causes harm to an alleged victim or client.

(b) For purposes of subsection (a) of this section, the terms abuse, neglect, sexual abuse, and financial exploitation have the meanings provided in Subchapter A of this chapter (relating to Definitions).

(c) For purposes of subsection (a)(1) of this section the term harm means:

(1) a significant injury or risk of significant injury, including a fracture, dislocation of any joint, internal injury, a contusion larger than 2 and 1/2 inches, concussion, second or third degree burn, or any laceration requiring sutures;

(2) an adverse health effect that results or is at risk of resulting from failure to receive medications in the amounts or at the times prescribed; or

(3) any other harm or risk of harm that warranted, or would reasonably be expected to have warranted, medical treatment or hospitalization.

(d) For purposes of subsection (a)(4) of this section, the term harm means substantial harm as evidenced by observable signs of substantial physical or emotional distress or as diagnosed by an appropriate medical professional.

§705.1509.What notice does DFPS provide to an employee before the employee's name is submitted to the Employee Misconduct Registry?

When DFPS determines that an employee committed reportable conduct, DFPS provides a written notice (Notice of Finding) to the employee. The Notice of Finding includes:

(1) a brief summary of the incident that resulted in a validated finding of abuse, neglect, or financial exploitation and a brief explanation of why the finding meets the definition of reportable conduct;

(2) a statement of the employee's right to dispute the finding by filing a request for hearing (Request for EMR Hearing) and the instructions for doing so;

(3) a statement that DFPS will submit the employee's name for inclusion in the Employee Misconduct Registry if the employee accepts the finding of reportable conduct;

(4) an explanation of how the employee may obtain a copy of the investigation records;

(5) a statement that a person whose name is recorded in the Employee Misconduct Registry is prohibited by law from working for certain facilities or agencies, as provided under Texas Health and Safety Code, Chapters 250 and 253;

(6) a statement that DFPS may determine that the situation is an emergency and that the case information or finding may be released immediately to the agency where the employee is or was employed so that the agency may take any precautions it determines necessary to protect clients;

(7) a statement that DFPS reserves the right to make an emergency release of the findings to any subsequent employer of the employee if the employee has access to similar clients;

(8) a statement that the employee is responsible for keeping DFPS timely informed of the employee's current employment and residential contact information, including addresses and phone numbers, pending the outcome of any appeal filed by the employee; and

(9) a statement that if the employee fails, without good cause, to file a timely Request for EMR Hearing, the employee will be deemed to have waived the employee's rights to dispute the finding and the employee's name will be submitted to the Employee Misconduct Registry.

§705.1511.How is the Notice of Finding provided to an employee, and who is responsible for ensuring that DFPS has a valid mailing address for an employee?

(a) The Notice of Finding is mailed to the employee's last known address by first-class mail and by certified mail, return receipt requested.

(b) If DFPS knows the employee's last known address is incorrect, or if the employee fails to provide an address, DFPS may hand-deliver the Notice of Finding to the employee. The affidavit of the person delivering the notice is proof of such notice.

(c) It is the responsibility of the employee to provide DFPS with a valid address where notice can be mailed or, if no address is available, with valid contact information, including telephone numbers. It is also the responsibility of the employee to immediately notify DFPS of any change of address or contact information throughout the investigation and pending the outcome of an EMR hearing or any appeal of an EMR hearing decision.

§705.1513.How does an employee dispute a finding of reportable conduct and what happens if the Request for EMR Hearing is not filed or not filed properly?

(a) An employee may dispute a finding of reportable conduct by submitting a Request for EMR Hearing. The Notice of Finding contains instructions for filing the Request for EMR Hearing.

(b) The employee is deemed to have accepted the finding of reportable conduct and DFPS submits the employee's name for inclusion in the Employee Misconduct Registry if the employee:

(1) does not file a Request for EMR Hearing;

(2) fails to file the Request for EMR Hearing before the deadline has passed, as provided under §705.1515 of this chapter (relating to What is the deadline for filing the Request for EMR Hearing?); or

(3) files a Request for EMR Hearing, but fails to follow the filing instructions and, as a result, DFPS does not receive the Request for EMR Hearing in a timely manner or cannot determine the matter being disputed.

§705.1515.What is the deadline for filing the Request for EMR Hearing?

(a) The employee must file the Request for EMR Hearing no later than 30 calendar days from the date the employee receives the Notice of Finding.

(b) A Notice of Finding is presumed received by the employee on the date of delivery as indicated on the certified mail return receipt. If the certified envelope is returned unclaimed, but the first-class envelope is not returned, the Notice of Finding is presumed received on the third business day following the date the notice was mailed to the employee's last known address. A personally delivered Notice of Finding is presumed received on the date of delivery as indicated on the affidavit of the person delivering the notice.

(c) If the Request for EMR Hearing is submitted by mail, the envelope must be postmarked no later than 30 days after the date the employee received the Notice of Finding. If the Request for EMR Hearing is hand-delivered or submitted by fax, the request must be received in the appropriate DFPS office by 5:00 p.m., no later than 30 days from the date the employee received the Notice of Finding.

(d) If an employee files the Request for EMR Hearing after the deadline, DFPS notifies the employee that the request was not filed by the deadline, no EMR hearing will be granted, and the employee's name will be submitted for inclusion in the Employee Misconduct Registry.

(e) If an employee disputes the fact that the Request for EMR Hearing was filed late, the employee may file a request for a telephonic hearing, to be conducted by an administrative law judge, and limited solely to the issue of whether the Request for EMR Hearing was filed on time. If, as a result of that hearing, the employee proves that the original Request for EMR Hearing was filed on or before the deadline, a separate hearing will be scheduled as soon as possible on the issue of whether the employee committed reportable conduct.

§705.1517.Is the finding of reportable conduct ever reversed without conducting a hearing?

Before a hearing, DFPS, in its sole discretion, may designate a person to conduct a review of the investigation records. If a review of the records results in a reversal of the finding of reportable conduct, DFPS will send the employee a new Notice of Finding, which will indicate that the employee's name will not be submitted to the Employee Misconduct Registry. If the review does not result in a reversal of the finding of reportable conduct, a hearing will be scheduled, as described in this subchapter.

§705.1519.When and where will the EMR hearing take place and who conducts the hearing?

(a) An EMR hearing is conducted by an administrative law judge with HHSC. The administrative law judge is responsible for scheduling the date, time, and location for the hearing. At the discretion of the administrative law judge, a pre-hearing conference may be conducted in person or by phone before the scheduling or conduct of the EMR hearing.

(b) The administrative law judge sends the parties a notice of a hearing providing the date, time, and location for the hearing, as well as the name of the administrative law judge, and how to contact the administrative law judge.

(c) The hearing is usually held in the same DFPS region where the alleged reportable conduct took place. The administrative law judge reserves the right to take all or some of the testimony at the hearing by telephone or video conference and may consider a request by any party to have the hearing conducted in a different location for good cause.

(d) If a criminal case against the employee arises because of the same reportable conduct, DFPS may postpone the EMR hearing until the criminal case resolves.

§705.1521.May an employee or DFPS request that the EMR hearing be rescheduled?

Yes. Both the employee and DFPS may request that the administrative law judge reschedule the hearing for good cause. Except in cases of emergency, the request to reschedule the hearing must be made no later than three business days prior to the hearing date. The administrative law judge must grant the request if good cause is shown.

§705.1523.May an employee withdraw a Request for EMR Hearing after it is filed?

Yes. An employee may withdraw a Request for EMR Hearing any time before the hearing is conducted. An employee who withdraws a Request for EMR Hearing is deemed to have accepted the finding of reportable conduct, and DFPS submits the employee's name for inclusion in the Employee Misconduct Registry.

§705.1525.What happens if a party fails to appear at a pre-hearing conference or a hearing on the merits?

(a) If either party fails, without good cause, to appear at a scheduled pre-hearing conference or a hearing on the merits, the administrative law judge may issue a default judgment against the party that failed to appear.

(b) A party against whom a default judgment is rendered may, within 10 calendar days of receipt of the default judgment, request a hearing on the issue of whether good cause existed for failing to appear.

(c) The administrative law judge may make a determination on the issues of good cause based on a review of the assertions and evidence submitted with the party's request for a good cause hearing or may schedule the matter for a hearing if additional testimony and evidence are deemed necessary for making the good cause finding. If a hearing is scheduled on the issue of good cause for failure to appear, the administrative law judge may limit the hearing solely to the issue of good cause or may combine the hearing with other pre-hearing conference matters or with the hearing on the merits, at the discretion of the administrative law judge.

(d) Unless a default judgment for failure to appear is challenged and reversed, as described in subsections (b) and (c) of this section, the default judgment is considered the final order (Final Order) of DFPS and may not be further appealed except as provided under §705.1531 of this chapter (relating to How is judicial review requested and what is the deadline?).

(e) If a default judgment rendered against an employee becomes the Final Order, DFPS will submit the employee's name for inclusion in the Employee Misconduct Registry in the same manner as it would following any other Final Order that affirms the finding of reportable conduct, as provided in this subchapter.

(f) If a default judgment rendered against DFPS becomes the Final Order, DFPS shall amend its records to reverse the findings at issue in the EMR hearing and shall issue an amended Notice of Finding to the employee reflecting that change.

§705.1527.How is the EMR conducted?

(a) The hearing is similar to a civil court trial, but is less formal. The parties to the hearing are the employee and DFPS.

(b) The hearing is conducted by an administrative law judge who has the duty to provide a fair and impartial hearing and to ensure that the available and relevant testimony and evidence are presented in an orderly manner. The administrative law judge has authority to administer oaths, issue subpoenas, and order discovery.

(c) Prior to the hearing, the employee may request a copy of the investigation record, edited to remove the identity of the reporter and any other confidential information to which the employee is not entitled. The administrative law judge will only issue subpoenas or order additional discovery upon request of a party and a finding of good cause for the issuance or order.

(d) Both parties will be given the opportunity to present their own testimony and evidence, as well as the testimony and evidence of witnesses. Any person who provides testimony at the hearing will be sworn under oath.

(e) Both parties will be given the opportunity to examine the evidence presented by the other party, to cross-examine any witnesses presented by the other party, and to rebut or respond to the evidence presented by the other party.

(f) Testimony of a witness may be presented by written affidavit, but may be given less weight than the credible testimony of a witness who testifies in person, under oath, subject to cross-examination.

(g) Presentation of evidence at the hearing is not restricted under the rules of evidence used in civil cases. The administrative law judge will admit evidence if it is of a type on which a reasonably prudent person commonly relies in the conduct of the person's affairs. Evidence will not be admitted if it is irrelevant, immaterial, unduly repetitious, or precluded by statutory law.

(h) Both parties have the right to be represented at the hearing by a person of their choosing who may be, but is not required to be, an attorney.

(i) The administrative law judge will assist either party in presenting their evidence and testimony, as needed, to ensure that a complete and proper record is developed at the hearing.

(j) The administrative law judge will arrange to have an interpreter available for the hearing if a party or witness requires an interpreter in order to effectively participate in the hearing.

(k) The hearing will be recorded by audio or video tape in order to preserve a record of the hearing. A transcription of the hearing tape will not be made or provided unless an employee seeks judicial review, as provided in this subchapter. The costs of transcribing the testimony and preparing the record for judicial review shall be paid by the party who files for judicial review, unless the party establishes indigence as provided in Rule 20 of the Texas Rules of Appellate Procedure.

(l) The hearing is closed to the general public consistent with the required statutory confidentiality of DFPS records. Only the employee, the employee's representative, and any testifying witnesses may attend the hearing.

§705.1529.How and when is the decision made after the EMR hearing?

(a) The administrative law judge will prepare a dispositive order that may become final (Final Order), which will be mailed to the employee at the employee's last known mailing address. The Final Order must contain the following:

(1) separate statements of the findings of fact and conclusions of law that uphold, reverse, or modify the findings as to whether:

(A) the employee committed abuse, neglect, or financial exploitation; and

(B) the abuse, neglect, or financial exploitation committed by the employee meets the definition of reportable conduct; and

(2) if reportable conduct is found to have occurred:

(A) a statement of the right of the employee to seek judicial review of the order; and

(B) a statement that the finding of reportable conduct will be forwarded to HHSC to be recorded in the Employee Misconduct Registry unless the employee timely files a petition for judicial review as provided in §705.1531 of this chapter (relating to How is judicial review requested and what is the deadline?).

(b) The commissioner may designate a Final Order to be published in an Index of Hearing Orders that are deemed to have precedential authority for guiding future decisions and DFPS policy. A Final Order must be edited to remove all personal identifying information before publication in the Index of Hearing Orders.

§705.1531.How is judicial review requested and what is the deadline?

(a) A timely motion for rehearing is a prerequisite to judicial review and must be filed in accordance with Texas Government Code, Chapter 2001, Subchapters F and G. The motion for rehearing must be served on the administrative law judge and on DFPS's attorney of record.

(b) To seek judicial review of a Final Order, a party must file a petition for judicial review in a Travis County district court, in accordance with Texas Government Code, Chapter 2001, Subchapters F and G.

(c) Judicial review by the court is under the substantial evidence rule, as provided by Texas Human Resources Code, §48.406.

(d) Unless citation for a petition for judicial review is served on DFPS within 90 days after the date on which the order under review becomes final, DFPS submits the employee's name for inclusion in the Employee Misconduct Registry. If valid service of citation is received after the employee's name has been recorded in the registry, DFPS requests that the employee's name be removed from the registry pending final disposition on judicial review.

§705.1533.What action does DFPS take when an employee's administrative case is fully resolved or has reached final disposition?

(a) An employee's administrative case is fully resolved or has reached final disposition if the employee has been found to have committed reportable conduct and the employee has received or is no longer eligible for:

(1) an EMR hearing;

(2) a rehearing of the employee's case following an EMR hearing; or

(3) judicial review.

(b) DFPS takes the following actions once an employee's administrative case is fully resolved or has reached final disposition:

(1) modifies DFPS's internal records to reflect the final outcome in the case;

(2) provides notice of the final outcome in the case to any person or entity that was previously notified of DFPS's findings, if the finding is modified; and

(3) sends the employee's name and required information to the Employee Misconduct Registry if the finding of reportable conduct was sustained.

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 August 25, 2020.

TRD-202003534

Tiffany Roper

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-3397


SUBCHAPTER S. CONFIDENTIALITY AND RELEASE OF RECORDS

40 TAC §§705.1901, 705.1903, 705.1905, 705.1907, 705.1909, 705.1911, 705.1913, 705.1915, 705.1917, 705.1919, 705.1921, 705.1923, 705.1925

STATUTORY AUTHORITY

These rules are proposed under Human Resources Code (HRC) §40.027, which provides that the Department of Family and Protective Services commissioner shall adopt rules for the operation and provision of services by the department.

The proposed new sections implement the requirements of Texas Government Code section 2001.039 regarding rule review as well as Texas Human Resources Code section 48.102. They also reflect changes resulting from SB 200 of the 84th Legislature (2015).

No other statutes, articles, or codes are affected by the proposed rules.

§705.1901.What is the purpose of this subchapter?

The purpose of this subchapter is to explain to whom and under what circumstances DFPS may disclose APS case records made confidential under Texas Human Resources Code, §48.101 and §48.102, and Texas Family Code, §261.201.

§705.1903.To which investigations does this subchapter apply?

This subchapter applies to investigations conducted by APS under Texas Human Resources Code, Chapter 48, and Texas Family Code, §261.404.

§705.1905.What definitions apply to this subchapter?

The following words and terms have the following meanings unless the context clearly indicates otherwise:

(1) Case records--All records described in Texas Human Resources Code, §48.101 or §48.102, which were collected, developed, or used in an abuse, neglect, or financial exploitation investigation, or in providing services as a result of an investigation, and which are under the custody and control of DFPS.

(2) Investigation records--That portion of the records described in Texas Human Resources Code, §48.101 or §48.102, which were collected, developed, or used in an abuse, neglect, or financial exploitation investigation and which are under the custody and control of DFPS.

§705.1907.Who has the right to obtain all or part of confidential case records maintained by DFPS?

(a) Upon request and to the extent required by state or federal law, DFPS makes the case records or portions of case records for a living APS client available after appropriate redactions to the following persons:

(1) the APS client;

(2) the court appointed guardian of an APS client;

(3) an attorney, attorney ad litem, or other court appointed legal representative of an APS client;

(4) an alleged or designated perpetrator of abuse, neglect, or financial exploitation of an APS client. The perpetrator is only entitled to those portions of the investigation records that relate to the alleged or designated perpetrator; and

(5) a person, including a reporter, interviewed as a part of an investigation of abuse, neglect, or financial exploitation. The person is only entitled to that portion of the investigation record that relates to that person's interview.

(b) Upon request and to the extent required by state or federal law, DFPS makes the case records or portions of case records for a deceased APS client available after appropriate redactions to the following persons:

(1) the legally appointed representative of the deceased APS client's estate;

(2) the parents of a deceased APS client with a disability, if parental rights were not terminated and no estate exists requiring the appointment of a legal representative for the deceased APS client, and either:

(A) the case records requested relate to events precipitating the death of the APS client; or

(B) DFPS determines that the case records should be made available in the interest of justice;

(3) a person who was guardian at the time of death of the APS client;

(4) an alleged or designated perpetrator of abuse, neglect, or financial exploitation of an APS client. The perpetrator is only entitled to those portions of the investigation records that relate to the alleged or designated perpetrator; and

(5) a person, including a reporter, interviewed as a part of an investigation of abuse, neglect, or financial exploitation. The person is only entitled to that portion of the investigation record that relates to that person's interview.

§705.1909.Are there others who may have access to APS records?

DFPS must make case records available after any required redactions to the following persons:

(1) local, state, or federal law enforcement officials for the purpose of investigating crimes related to:

(A) allegations of abuse, neglect, or financial exploitation of an APS client;

(B) allegations of false or malicious reporting of alleged abuse, neglect, or financial exploitation of an APS client; or

(C) failure to report alleged abuse, neglect, or financial exploitation of an APS client;

(2) local, state, or federal government officials or agencies when:

(A) specifically required by law; or

(B) DFPS determines case records should be made available in the interest of justice;

(3) a court of criminal or civil jurisdiction with a legal matter pending before it, either:

(A) arising out of an investigation of abuse, neglect, or financial exploitation of an APS client; or

(B) concerning an APS client;

(4) persons or agencies when DFPS determines it is necessary to:

(A) access services for an APS client;

(B) provide services to an APS client;

(C) properly meet the needs of an APS client; or

(D) protect an APS client; or

(5) as otherwise provided by law.

§705.1911.When may case records be released under this subchapter?

(a) Records may not be released until:

(1) the investigation is complete;

(2) a proper request has been received, if required; and

(3) the records have been properly redacted.

(b) Portions of investigation records may be released before completion of an investigation:

(1) to law enforcement for investigation of a crime as provided by Texas Human Resources Code, §48.1522; or

(2) as necessary for DFPS to seek emergency protective services or emergency legal action for the protection of an APS client.

(c) Requests for records will be filled on a priority basis, as provided by §702.223 of this title (relating to How does the department prioritize fulfilling requests for copies of confidential client records that require redaction prior to their release?).

§705.1913.When may DFPS withhold records to which the requester is otherwise entitled?

(a) Notwithstanding any other provision in this subchapter, DFPS must not disclose any record or information which, if released to the requester, would:

(1) interfere with an ongoing criminal investigation or prosecution; or

(2) in the judgment of DFPS, the release of that information would endanger the life or safety of any person. DFPS will keep a record of any information not released and must document why the information would be likely to endanger the life or safety of a person. Information withheld from a requester under this subsection, as well as the reason for withholding information under this subsection, must be released only upon a court order pursuant to the provisions in Texas Human Resources Code, §48.101(c).

(b) Notwithstanding any other provision in this subchapter, if any party has sued DFPS and DFPS determines that the release of the requested records might interfere with its defense of that litigation, DFPS may require that a requester seek access to records under the appropriate rules of civil procedure rather than this subchapter.

§705.1915.What other way may records be accessed?

Persons not otherwise authorized to obtain records under this subchapter or through the rules of civil or criminal procedure must obtain a court order using the procedures outlined in Texas Human Resources Code, §48.101.

§705.1917.Are records redacted before release?

(a) Information is redacted based on the eligibility or entitlement of the requester and whether the requester is entitled to the information by law.

(b) With the exception of release to law enforcement and prosecutors as specified in paragraphs §705.1909(1) and (2) of this chapter (relating to Are there others who may have access to APS records?), DFPS must redact case records to remove the name, address, and any other information in the record which reveals the identity of any person as a "reporter." If a person who was a reporter also provided a witness statement or other evidence during the course of the investigation that person's identity as a witness, as well as the information provided by that person in the role of a witness, will be released, provided that any information that might identify that person as the reporter is redacted.

(c) DFPS must withhold the release of any records obtained from another source, if the release of that record to this requester is specifically prohibited under state or federal law. Information which may be withheld under this section includes, but is not limited to, the following:

(1) all medical records subject to Texas Occupations Code, Chapter 159, unless their release to the requester is authorized by that chapter or other law;

(2) non-physician medical records unless their release to the requester is specifically authorized by law;

(3) criminal history or arrest records obtained from law enforcement unless their release to the requester is specifically authorized under state and federal law; and

(4) adult or juvenile probation records unless their release to the requester is specifically authorized under state and federal law.

§705.1919.What are the procedures for requesting access to confidential information?

(a) A request for access to case records must be submitted on DFPS's Request for Records form. DFPS may waive the use of this form or may request additional information not included on the form, if appropriate under the circumstances surrounding a particular request.

(b) DFPS's Request for Records form provides additional instructions regarding the proper filing of the request and any fees that must be paid to obtain copies of the requested records. The methodology for calculating fees is the same as that used by DFPS when responding to any other request for records for which there is a charge.

(c) Upon receipt of a proper request for copies of records, proof of the requester's identity, and a determination that the requester is entitled to have access to those records, DFPS redacts the case records as required, assesses necessary fees, and upon payment, provides copies of the requested records, subject to the exceptions described in this subchapter.

§705.1921.Who has access to videotapes, audiotapes, and photographs?

(a) Persons authorized under this subchapter or other law to have access to investigation records or case records may view and or listen to any videotapes, audiotapes, or photographs which are a part of the case record. Access to this category of records is permitted in controlled areas, designated by DFPS, at a time mutually convenient to the requester and DFPS. When viewing or listening to these records, the requester may not be accompanied by any person who would not otherwise be entitled to have access to these records, unless DFPS determines the participation of this person is appropriate under the circumstances surrounding the request.

(b) Copies of videotapes, audiotapes, and photographs may be provided to the persons or entities by DFPS if provision of a copy is essential to the investigation, prosecution, or resolution of a case. Copies of videotapes, audiotapes, and photographs will not be provided to any other person unless so ordered by a court pursuant to Texas Human Resources Code, §48.101(c).

§705.1923.Who receives copies of reports of investigations in schools?

(a) DFPS sends a written report of an investigation of alleged abuse, neglect, or financial exploitation of an adult with a disability at school, as appropriate, to the State Board for Educator Certification, the local school board or the school's governing body, and the school principal or director, unless the principal or director is the alleged perpetrator. DFPS edits the report to protect the identity of the reporter.

(b) DFPS sends a copy of the report required by subsection (a) of this section to the alleged perpetrator upon request.

§705.1925.Do records lose their confidential status when released under Texas Human Resources Code, Chapter 48, or this subchapter?

No. The person or entity that obtains confidential case records is responsible by law for proper use of and maintaining the confidentiality of the records. Improper release of records is punishable as a criminal offense under Texas Human Resources Code, §40.005.

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 August 25, 2020.

TRD-202003535

Tiffany Roper

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-3397


SUBCHAPTER A. DEFINITIONS

40 TAC §§705.1001, 705.1003, 705.1005, 705.1007, 705.1009, 705.1011

STATUTORY AUTHORITY

These repeals are proposed under Human Resources Code (HRC) §40.027, which provides that the Department of Family and Protective Services commissioner shall adopt rules for the operation and provision of services by the department.

The proposed repeals implement the requirements of Texas Government Code section 2001.039 regarding rule review as well as Texas Human Resources Code section 48.102. They also reflect changes resulting from SB 200 of the 84th Legislature (2015).

No other statutes, articles, or codes are affected by the proposed repeals.

§705.1001.How are the terms in this chapter defined?

§705.1003.How is physical abuse defined?

§705.1005.How is sexual abuse defined?

§705.1007.How is emotional or verbal abuse defined?

§705.1009.How is neglect defined?

§705.1011.How is financial exploitation defined?

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 August 25, 2020.

TRD-202003518

Tiffany Roper

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-3397


SUBCHAPTER D. ELIGIBILITY

40 TAC §§705.2101, 705.2103, 705.2105, 705.2107

STATUTORY AUTHORITY

These repeals are proposed under Human Resources Code (HRC) §40.027, which provides that the Department of Family and Protective Services commissioner shall adopt rules for the operation and provision of services by the department.

The proposed repeals implement the requirements of Texas Government Code section 2001.039 regarding rule review as well as Texas Human Resources Code section 48.102. They also reflect changes resulting from SB 200 of the 84th Legislature (2015).

No other statutes, articles, or codes are affected by the proposed repeals.

§705.2101.How are investigations prioritized?

§705.2103.Who is eligible for emergency protective services?

§705.2105.Who is eligible for purchased client services?

§705.2107.When are purchased client services available?

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 August 25, 2020.

TRD-202003519

Tiffany Roper

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-3397


SUBCHAPTER G. FAMILY VIOLENCE

40 TAC §705.3101, §705.3102

STATUTORY AUTHORITY

These repeals are proposed under Human Resources Code (HRC) §40.027, which provides that the Department of Family and Protective Services commissioner shall adopt rules for the operation and provision of services by the department.

The proposed repeals implement the requirements of Texas Government Code section 2001.039 regarding rule review as well as Texas Human Resources Code section 48.102. They also reflect changes resulting from SB 200 of the 84th Legislature (2015).

No other statutes, articles, or codes are affected by the proposed repeals.

§705.3101.What actions does APS perform when alleged victims are also victims of family violence?

§705.3102.Can DFPS apply for protective orders?

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 August 25, 2020.

TRD-202003520

Tiffany Roper

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-3397


SUBCHAPTER J. RELEASE HEARINGS

40 TAC §§705.4101, 705.4103, 705.4105, 705.4107, 705.4109, 705.4111

STATUTORY AUTHORITY

These repeals are proposed under Human Resources Code (HRC) §40.027, which provides that the Department of Family and Protective Services commissioner shall adopt rules for the operation and provision of services by the department.

The proposed repeals implement the requirements of Texas Government Code section 2001.039 regarding rule review as well as Texas Human Resources Code section 48.102. They also reflect changes resulting from SB 200 of the 84th Legislature (2015).

No other statutes, articles, or codes are affected by the proposed repeals.

§705.4101.How are terms in this subchapter defined?

§705.4103.Does the designated perpetrator have the right to appeal?

§705.4105.How is the designated perpetrator notified of the intent to release?

§705.4107.What is the designated perpetrator's role during an administrative review?

§705.4109.Are administrative reviews open to the general public?

§705.4111.Who is notified of the confidential decision?

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 August 25, 2020.

TRD-202003521

Tiffany Roper

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-3397


SUBCHAPTER K. TRAINING AND EDUCATION

40 TAC §705.5101

STATUTORY AUTHORITY

These repeals are proposed under Human Resources Code (HRC) §40.027, which provides that the Department of Family and Protective Services commissioner shall adopt rules for the operation and provision of services by the department.

The proposed repeals implement the requirements of Texas Government Code section 2001.039 regarding rule review as well as Texas Human Resources Code section 48.102. They also reflect changes resulting from SB 200 of the 84th Legislature (2015).

No other statutes, articles, or codes are affected by the proposed repeals.

§705.5101.What is DFPS's policy on training Adult Protective Services staff?

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 August 25, 2020.

TRD-202003522

Tiffany Roper

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-3397


SUBCHAPTER L. RISK ASSESSMENT

40 TAC §705.6101

STATUTORY AUTHORITY

These repeals are proposed under Human Resources Code (HRC) §40.027, which provides that the Department of Family and Protective Services commissioner shall adopt rules for the operation and provision of services by the department.

The proposed repeals implement the requirements of Texas Government Code section 2001.039 regarding rule review as well as Texas Human Resources Code section 48.102. They also reflect changes resulting from SB 200 of the 84th Legislature (2015).

No other statutes, articles, or codes are affected by the proposed repeals.

§705.6101.What assessments does APS use in an in-home case?

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 August 25, 2020.

TRD-202003523

Tiffany Roper

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-3397


SUBCHAPTER M. CONFIDENTIALITY AND RELEASE OF RECORDS

40 TAC §§705.7101, 705.7103, 705.7105, 705.7107, 705.7109, 705.7111, 705.7113, 705.7115, 705.7117, 705.7119, 705.7121, 705.7123

STATUTORY AUTHORITY

These repeals are proposed under Human Resources Code (HRC) §40.027, which provides that the Department of Family and Protective Services commissioner shall adopt rules for the operation and provision of services by the department.

The proposed repeals implement the requirements of Texas Government Code section 2001.039 regarding rule review as well as Texas Human Resources Code section 48.102. They also reflect changes resulting from SB 200 of the 84th Legislature (2015).

No other statutes, articles, or codes are affected by the proposed repeals.

§705.7101.What is the purpose of this subchapter?

§705.7103.To which investigations does this subchapter apply?

§705.7105.What definitions apply to this subchapter?

§705.7107.Who has the right to obtain all or part of confidential case records maintained by DFPS?

§705.7109.Are there others who may have access to APS records?

§705.7111.When may case records be released under this subchapter?

§705.7113.When may DFPS withhold records to which the requester is otherwise entitled?

§705.7115.What other way may records be accessed?

§705.7117.Are records redacted before release?

§705.7119.What are the procedures for requesting access to confidential information?

§705.7121.Who has access to videotapes, audiotapes, and photographs?

§705.7123.Do records lose their confidential status when released under Chapter 48 of the Human Resources Code or this subchapter?

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 August 25, 2020.

TRD-202003524

Tiffany Roper

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-3397


SUBCHAPTER N. PUBLIC AWARENESS

40 TAC §705.8101

STATUTORY AUTHORITY

These repeals are proposed under Human Resources Code (HRC) §40.027, which provides that the Department of Family and Protective Services commissioner shall adopt rules for the operation and provision of services by the department.

The proposed repeals implement the requirements of Texas Government Code section 2001.039 regarding rule review as well as Texas Human Resources Code section 48.102. They also reflect changes resulting from SB 200 of the 84th Legislature (2015).

No other statutes, articles, or codes are affected by the proposed repeals.

§705.8101.How does DFPS educate the public about APS?

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 August 25, 2020.

TRD-202003525

Tiffany Roper

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-3397


SUBCHAPTER O. PILOT PROGRAM

40 TAC §705.9001

STATUTORY AUTHORITY

These repeals are proposed under Human Resources Code (HRC) §40.027, which provides that the Department of Family and Protective Services commissioner shall adopt rules for the operation and provision of services by the department.

The proposed repeals implement the requirements of Texas Government Code section 2001.039 regarding rule review as well as Texas Human Resources Code section 48.102. They also reflect changes resulting from SB 200 of the 84th Legislature (2015).

No other statutes, articles, or codes are affected by the proposed repeals.

§705.9001.What is the purpose of the pilot program?

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 August 25, 2020.

TRD-202003526

Tiffany Roper

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: October 11, 2020

For further information, please call: (512) 438-3397